Transamerica Ins. Group v. Meere

• Decision Date: 16 June 1983
• Docket Number: No. 1,CA-CIV,1
• Parties: TRANSAMERICA INSURANCE GROUP, Plaintiff-Appellee, v. Lynne Edward MEERE and Carol Meere, husband and wife, Defendants-Appellants. 6013.
• Court: Arizona Court of Appeals

Page 263

694 P.2d 263

143 Ariz. 433

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

No. 1 CA-CIV 6013.

Court of Appeals of Arizona Division 1, Department D.

June 16, 1983.

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

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

OPINION

HAIRE, Presiding Judge.

Appellants Lynne Edward Meere and Carol Meere appeal from summary judgment in which the trial court found that a homeowner's liability insurance policy issued by Transamerica Insurance Group (Transamerica) did not provide liability coverage or require the insurance company to defend the Meeres in an action brought for injuries inflicted by Lynne Meere on a third party.

On appeal from summary judgment the evidence must be viewed in a light most favorable to the parties opposing the motion. E.g., Portonova v. Wilkinson, 128 Ariz. 501, 502, 627 P.2d 232, 233 (1981); Gulf Insurance Co. v. Grisham, 126 Ariz. 123, 124, 613 P.2d 283, 284 (1980). Viewed in this manner, the record reflects the following events giving rise to this litigation.

In March 1980, Lynne Meere became involved in a fist fight with Dennis Pruitt. Pruitt knocked Meere down; Meere got up, put his hands in front of his face, and attempted to stop the fight. Pruitt took another swing at Meere and hit him on the left side of the face. Pruitt then took a fighting stance and swung several more times at Meere. Meere deflected or blocked those swings and hit Pruitt in the face with his right hand, knocking Pruitt against a pillar. As Pruitt started to go down, Meere kicked him. As Pruitt attempted to get up, Meere kicked him again and knocked him down again. Meere stated that he struck Pruitt in self-defense and that he did not intend to injure Pruitt. However, he admitted that he struck Pruitt intentionally. Pruitt lost part of the use of one of his eyes as a result of the fight. Pruitt then filed an action against Meere to recover for injuries suffered as a result of the fight. At the time of the fight, Meere had a homeowner's insurance policy with Transamerica. The policy 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 brought an action in Maricopa County Superior Court seeking a declaratory judgment that its insurance policy did not provide coverage for Meere for any claim made by Pruitt. The trial court granted Transamerica's motion for summary judgment and this appeal followed.

On appeal, Meere argues that the policy exclusion is not applicable because he did not intend to injure Pruitt. We find that our previous decision in Steinmetz v. National American Insurance Co., 121 Ariz. 268, 589 P.2d 911 (App.1978) is dispositive of this issue. The Steinmetz court specifically addressed the question of whether a similar exclusion ¹ applied to intended acts or only to intended injuries. It concluded that the exclusion applies "if the insured acts with the intent or expectation that bodily injury will result even though the bodily injury that does result is different either in character or magnitude from the injury that was intended." 121 Ariz. at 271, 589 P.2d at 914 (quoting Butler v. Behaeghe, 37 Colo.App. 282, 287, 548 P.2d 934, 938 (1976)).

Meere admitted that he intentionally struck Pruitt; Pruitt's injuries flowed from these intentional acts. 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. See Steinmetz, supra. We therefore find that the bodily injury to Pruitt was "intended" by Meere within the meaning of the policy exclusion.

Meere also argues that the blows inflicted upon Pruitt were inflicted in self-defense and therefore were not "intended" within the meaning of the policy exclusion. This issue was addressed by Division 2 of this court in Lockhart v. Allstate Insurance Co., 119 Ariz. 150, 579 P.2d 1120 (App.1978). ² In that case, the court found that the issue of self-defense, though presenting an issue of motive or justification for an intentional act, was immaterial in determining whether the exclusion for intended acts applied.

We note that Department A of this court has recently held that an act committed in self-defense is not an intentional act excluded from liability coverage. See Fire Insurance Exchange v. Berray, 143 Ariz. 429, 694 P.2d 259 (App.1983). ³ Nevertheless, we agree with the dissent in Berray that such an exception ignores the plain language of the policy excluding coverage for injury resulting from intentional acts of the insured, regardless of motive.

The Arizona Supreme Court has recognized the precedential value of a decision by one division of the Court of Appeals for the other division. "Absent a decision by the Arizona Supreme Court compelling a contrary result, a decision by one division of the Court of Appeals is persuasive with the other division." Scappaticci v. Southwest Savings & Loan Association, 135 Ariz. 456, 662 P.2d 131, 136 (1983). The court in Scappaticci also quoted with approval from Castillo v. Industrial Commission, 21 Ariz.App. 465, 520 P.2d 1142 (1974), which recognized the persuasive authority of prior decisions of coordinate courts unless those decisions are based on clearly erroneous principles.

"[T]he principle of stare decisis and the need for stability in the law in order to have an efficient and effective functioning of our judicial machinery dictate that we consider decisions of coordinate courts as highly persuasive and binding, unless we are convinced that the prior decisions are based upon clearly erroneous principles, or conditions have changed so as to render these prior decisions inapplicable."

Scappaticci, supra (quoting Castillo, supra, 21 Ariz.App. at 471, 520 P.2d at 1148).

We proceed to discuss Berray in light of these principles.

The majority in Berray found that the insured had intentionally fired a gun thus injuring a third party, but then held that the term "intentional acts" within the liability insurance policy exclusion was ambiguous. The Berray majority then construed the exclusion to be inapplicable to claims of self-defense.

In reaching this conclusion, the Berray majority relied upon an apparent ambiguity in the policy exclusion without recognizing the findings in Lockhart and Steinmetz that similar language was unambiguous. In short, the Berray majority failed to accord to the decisions in Lockhart and Steinmetz the "persuasive authority" authorized by the Arizona Supreme Court in Scappaticci.

Furthermore, the Lockhart court expressly rejected the California authority relied upon by the Berray majority and the dissent in this case. As noted by the Lockhart court, the California cases indicate that an exclusion...