Transamerica Ins. Group v. Meere, 17043-PR

• Citation: 143 Ariz. 351,694 P.2d 181
• Decision Date: 18 December 1984
• Docket Number: No. 17043-PR,17043-PR
• Parties: TRANSAMERICA INSURANCE GROUP, Plaintiff-Appellee, v. Lynne Edward MEERE and Carol Meere, husband and wife, Defendants-Appellants.
• Court: Supreme Court of Arizona

Page 181

694 P.2d 181

143 Ariz. 351

TRANSAMERICA INSURANCE GROUP, Plaintiff-Appellee, v. Lynne Edward MEERE and Carol Meere, husband and wife, Defendants-Appellants.

No. 17043-PR.

Supreme Court of Arizona, In Banc.

Dec. 18, 1984.

Lewis & Roca, by D.W. Grainger, Paul G. Ulrich, Brian Goodwin, Suzanne P. Clarke, Phoenix, for plaintiff-appellee.

McGroder, Pearlstein, Peppler & Tryon by Lynn M. Pearlstein, Brent E. Corwin, Phoenix, for defendants-appellants.

FELDMAN, Justice.

Lynne Edward Meere (defendant) petitions this court for review of the majority decision of the court of appeals (Transamerica Insurance Group v. Meere, 143 Ariz. 433, 694 P.2d 263 (1983)), which affirmed a summary judgment in favor of Transamerica. The trial court had determined that Transamerica was not required to defend Meere in a civil action and that the homeowner's policy issued by Transamerica to Meere did not potentially provide liability coverage for Meere. We have jurisdiction. Ariz. Const., art. 6, § 5(3); A.R.S. § 12-120.24; Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We granted review in this case and in Fire Insurance Exchange v. Berray, 143 Ariz. 429, 694 P.2d 259 (1983) to settle a conflict in the court of appeals' decisions (see Rule 23(c)(4)) concerning the impact of the intentional injury exclusion on an insurer's duty to defend an action brought by a third party for assault when the insured has raised the affirmative claim of the privilege of self-defense.

FACTS

In an appeal from summary judgment the evidence is viewed in the light most favorable to the party against whom summary judgment was taken. Gulf Insurance Co. v. Grisham, 126 Ariz. 123, 124, 613 P.2d 283, 284 (1980). Viewed in that light, the facts are as follows.

On March 27, 1980, at about 12:30 a.m., Meere and a friend, Leon Ivey, were leaving Lindy's, a bar in Florence, Arizona. Outside Lindy's, Meere and Ivey were confronted by several off-duty employees of the Arizona State Prison. Meere alleges that he was quite apprehensive because he had been informed by a captain at Arizona State Prison that a rumor was circulating among the guards that Ivey and Meere, both ex-police officers, were undercover investigators of narcotics flow into the prison. One of the guards, Dennis Pruitt, approached Meere. Meere and Pruitt exchanged words. Pruitt then struck Meere, knocking him to the ground; Meere put up his hands, said "I don't want to fight," and was struck again by Pruitt. The two then exchanged blows. The fight ended when Meere knocked Pruitt to the ground and kicked Pruitt as he attempted to get up and come at Meere again. Pruitt lost partial use of an eye as a result of this fight.

Pruitt brought a tort action against Meere. His complaint reads, in part:

III

That on or about March 27, 1980, at approximately 12:30 a.m., Dennis R. Pruitt was struck in the face, his eye and other areas of his body by Lynne Edward Meere ....

* * *

* * *

VIII

The aforesaid acts of defendants were grossly negligent and outrageous acts done with reckless disregard of the rights of plaintiffs and as a result thereof, said defendants should be made to respond in punitive damages ....

Transamerica insures Meere against tort liability. It brought this declaratory judgment action against Meere and Pruitt to establish that it had no duty to defend or indemnify Meere against Pruitt's tort action. Its complaint alleges that

... defendant Lynne Edward Meere intentionally struck with his hands and feet the defendant Dennis Pruitt in the face and about the body ....

In his answer to the declaratory judgment action Meere denied that allegation. When asked "upon what facts do you base your denial of our allegation that you intentionally struck Mr. Pruitt," Meere responded as follows:

Well, from the statement that you're making right there, I would say that it would be the fact that I intentionally did it. As far as I'm concerned, I was defending myself. It was a self-defense situation. And I was warding off an attack. And I was fearful of [for] my life.

Meere deposition, p. 16. Meere also stated "I did not intentionally strike him. I mean, it was self-defense." Meere stated that he was also fearful because "the fight came to me. I didn't go to it." Meere deposition, p. 20. He had no intention of seriously injuring Pruitt.

The thrust of Meere's deposition testimony is that he used only the force he thought was necessary to repulse a persistent attack by Pruitt while he and Ivey were partially surrounded by several aggressive off-duty prison guards, one of whom they believed was armed with a gun. It is uncontested, however, that Meere intended to strike the blow that injured Pruitt.

At the time of the fight, the Transamerica homeowner's policy insuring Meere contained the following exclusion:

Personal liability coverage does not apply to bodily injury, personal injury, or property damage, (A) which is expected or intended by the insured ....

Transamerica relied on this exclusion in seeking the declaratory judgment of non-coverage. The trial court granted summary judgment on this basis and the court of appeals affirmed. We reverse the judgment of the trial court and vacate the opinion of the court of appeals.

I--CHARACTERIZATION OF ISSUE

The basic question is whether the insured's subjective intent to cause or not to cause injury is relevant where the act producing injury was intentional but committed in self-defense. Is the insured bound by the natural and probable consequences of his immediate act of striking the blow, even though he may establish that he had no underlying or basic intent to injure the victim? The majority of the court of appeals held:

Meere's statements that he did not intend to seriously injure Pruitt or cause the loss of his eyesight, though relevant to his subjective intent or motive, are immaterial to determine whether the exclusion applies.... We therefore find that the bodily injury to Pruitt was 'intended' by Meere within the meaning of the policy exclusion.

Transamerica Insurance Group v. Meere, 143 Ariz. at 435, 694 P.2d at 265. Division II of the court of appeals had previously reached a similar conclusion in Lockhart v. Allstate Insurance Co., 119 Ariz. 150, 579 P.2d 1120 (1978). A majority of a different department of Division I reached the opposite conclusion in Fire Insurance Exchange v. Berray, supra, holding that an act committed in self-defense was not within the intentional exclusion from liability coverage.

Those who espouse the view that an intentional act committed in self-defense falls within the exclusion base their position on Steinmetz v. National American Insurance Co., 121 Ariz. 268, 589 P.2d 911 (App.1978) and Clark v. Allstate Insurance Co., 22 Ariz.App. 601, 529 P.2d 1195 (1975). Both cases hold that where the insured intentionally commits an act calculated to cause some injury, he will not be permitted to deny an intent to injure nor be allowed to evade the scope of the exclusionary clause by pleading that the resultant injury "is different either in character or magnitude from the injury that was intended." Steinmetz, 121 Ariz. at 271, 589 P.2d at 914 (quoting Butler v. Behaeghe, 37 Colo.App. 282, 287, 548 P.2d 934, 938 (1976)). However, neither Steinmetz nor Clark was a self-defense case. In both cases it was assumed or presumed from the performance of the act that the insured intended to inflict an injury. That assumption is proper in both Steinmetz and Clark because the insured, acting without justification or privilege, committed an act bound to cause some injury. It is, therefore, of no consequence that he may have intended a different or lesser injury. The exclusion applies whenever the insured intends to injure.

But the issue before us requires a definition of "intent"; does a person acting in self-defense, or with other justification, really "intend" to injure even though he acts in a manner quite likely or even certain to cause some injury? Where, unlike Steinmetz and Clark, there is some justification or privilege connected with the insured's intentional act, do we deal with basic intent or simply with immediate intent--the natural consequences of the act?

We find authority from other states in conflict. See Annot., 2 ALR 3d 1238 (1965). The annotation summarizes the divergence of opinion as follows:

The courts have generally held that injury or damage is "caused intentionally" within the meaning of an "intentional injury exclusion clause" [only] if the insured has acted with the specific intent to cause harm to a third party, with the result that the insurer will not be relieved of its obligations ... unless the insured has acted with such specific intent. Under this view, it is not sufficient that the insured's intentional, albeit wrongful, act has resulted in unintended harm to a third person; it is the harm itself that must be intended before the exclusion will apply. There is, however, some authority for the proposition that such a clause will operate to relieve a liability insurer of its duty to indemnify an insured whose intentional act has caused harm to a third person where the nature or character of the act is such that an intent to cause harm is thereby inferred as a matter of law.

Id. at 1241 (footnote omitted). See also Allstate Insurance Co. v. Steinemer, 723 F.2d 873, 875-76 n. 2 (11th Cir.1984).

Steinmetz and Clark seem to fit within what the annotation scope note indicates to be the minority view. Some of the cases on the supposed majority and minority sides of the question resolve the issue on the fictional basis of the "intent of the parties." See, e.g., Patrons-Oxford Mutual Insurance Co. v. Dodge, 426 A.2d 888 (Me.1981) (holding the clause ambiguous and to be construed against the insurer because it fails to specify whether the intent referred to is the objective intent which accompanied the immediate act of striking the blow or the "actual subjective intention" which motivated the insured's...