Talley v. MFA Mut. Ins. Co., 81-16
| Decision Date | 06 July 1981 |
| Docket Number | No. 81-16,81-16 |
| Parties | Jeffery TALLEY, et al., Appellants, v. MFA MUTUAL INSURANCE COMPANY, Appellee. |
| Court | Arkansas Supreme Court |
Frierson, Walker, Snellgrove & Laser, Jonesboro by Paul Mark Ledbetter, Jonesboro, for Don A. Davis, Imogene Davis and Philip Anthony Davis.
Seay, Bristow & Rees by Bill W. Bristow, Jonesboro, for appellants.
Cathey, Goodwine, Hamilton & Moore by Donis B. Hamilton, Paragould, for appellee.
Appellee brought this declaratory judgment action to determine its liability to various appellants under a homeowners policy issued to appellants, Don and Imogene Davis. Both appellee and appellants, the Davises and their son Tony, sought summary judgment. The trial court granted summary judgment in appellee's favor based on the pleadings and affidavits, finding appellee had no liability under the terms of the policy.
Rick Evans, Jeffrey Talley and Tony Davis, appellants, were among those attending a party at the home of a friend, Joe Burns. Evans and Talley were 18 at the time Davis was 16. An altercation arose between Davis and the other two. Davis, who had apparently consumed considerable alcohol, left the party about 11 p. m., procured a shotgun and returned to the house. Some of the guests were outside and he told them to tell Evans and Talley to come outside if they still wanted some arguments. Shortly thereafter, those at the party heard shots and discovered the rear windows of the Evans and Talley cars, parked in the driveway, had been shot out. Davis circled the block and shot at the car windows a second time. Talley and Evans at some point took shotguns from the Burns' house and went outside in the area of their cars. Davis returned again and fired a third time in the direction of the cars. He then drove away and did not return. In this final round of fire, Talley and Evans were hit by the shotgun blasts. As a result Talley is totally blind and Evans is partially blind.
Upon being notified that a claim had been made against the Davises, the insureds, by Talley and Evans, appellee filed this action to determine appellee's liability under both the automobile policy and the homeowners policy, the latter being the subject of this appeal. The homeowners policy provided liability coverage for "bodily injury or property damage, to which this insurance applies, caused by an occurrence." "Occurrence" is defined in this section as "an accident." The insurer has a duty to defend "even if any allegations of the suit are groundless, false or fraudulent ... " The exclusionary language states that the policy does not cover "bodily injury ... which is either expected or intended from the stand point of the insured."
It is well settled that a summary judgment is an extreme remedy and is only proper whenever the pleadings and proof show that no genuine issue exists as to a material fact, and the moving party is entitled to a judgment as a matter of law. Any proof submitted with the motion must be viewed in the light most favorable to the party resisting the motion with all doubts and inferences being resolved against the moving party. Wirges v. Hawkins, 238 Ark. 100, 378 S.W.2d 646 (1964); and Saunders, Adm'x v. Nat'l Old Line Ins. Co., 266 Ark. 247, 583 S.W.2d 58 (1979).
The crucial question presented here is whether a liability policy such as this one provides coverage for the unintended results of an intentional act. If so, summary judgment was improper because there is a question of fact as to whether or not the injuries were intended or were merely the unintended result of an intentional act, shooting at the cars.
In a supporting affidavit, Tony Davis stated the injuries were not the intentional or expected result of any negligence on his part. The Davises, the insureds, in their pleadings and affidavit, stated the injuries were neither expected nor intended from the standpoint of the insured and that their son did not see Talley and Evans at the time of the shooting nor did he expect or intend to harm them. In Talley's pleading and supporting affidavit, he stated, that, having full knowledge of the circumstances, including his location and position at the time of the injuries he suffered, it was his opinion that Davis neither intended nor expected to cause him personal injury. An individual, who lived next door to the Burns and witnessed the incident, stated by affidavit that he saw Talley and Evans come out of the house and hide behind the cars before the second round of shooting at which time a window and fender of another car were damaged. However, when the car made its third trip in front of the house it was his impression that the boys, who had been in the driveway, were in the house as he could not see them at that time. It was approximately midnight and the street lights did not provide much light. It was his opinion that the driver of the car did not see the youths but was shooting at the cars in the driveway and the pellets accidently hit Talley and Evans.
The majority of jurisdictions would allow coverage for unintended results of an intentional act under this or similar language. The clear language of the policy exclusion itself, as quoted previously, states there is no coverage for injury that is expected or intended. In 10 Couch on Insurance 2d, § 41.6, the author states:
It is only the intended injuries flowing from an intentional act that are excluded; ... and a homeowners policy covers bodily injury from unintended results of an intentional act but not for an injury which was intended.
For purposes of determining whether recovery can be had under an 'accident' provision of a liability policy, the resulting damage can be unintentional and therefore accidental even though the original acts were intentional ... If the consequences consisting of damages from intentional acts are not intended and are unexpected they are 'accidental' within a policy ....
See also Anno., 2 ALR 3rd 1238.
In Lyons v. Hartford Insurance Group, 125 N.J.Super. 239, 310 A.2d 485 (1973), the court had before it a policy containing the same language as here. The court there said:
The general rule is that coverage exists under insuring and exclusion clauses identical or similar to the ones involved here for the unintended results of an intentional act, but not for damages assessed because of an injury which was intended to be inflicted.
The court there distinguished those cases in which an intentional act resulted in an intended injury, although different in kind or more severe than intended.
In State Farm Mutual Auto Ins. Co. v. Worthington, 405 F.2d 683 (1968), the insured contended he was shooting warning shots in the dark when he shot and killed the plaintiff's son. The...
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