U.S. F. & G. Ins. Co. v. Brannan

Decision Date04 January 1979
Docket NumberNo. 2568-III,2568-III
Citation589 P.2d 817,22 Wn.App. 341
CourtWashington Court of Appeals
PartiesU. S. F. & G. INSURANCE COMPANY, a Foreign Company, Respondent, v. Mary L. BRANNAN, Appellant, and John C. Brannan, Alfred E. Deviny and the Estate of Joseph Hedger, Defendants.

Malott, Southwell & O'Rourke, Thomas Malott, Spokane, for appellant.

Lukins, Annis, Bastine, McKay & Van Marter, Eugene I. Annis, Clark H. Richards, Layman, Mullin & Etter, John A. Sherrick and Ronald K. Mullin, Spokane, for respondent.

ROE, Judge.

On November 11, 1975, John C. Brannan shot both his business associates in Triangle Construction Company. He killed Joseph E. Hedger and wounded Alfred E. Deviny. The shootings occurred around 2 p.m. at a job site near Liberty Lake, Washington. The wounded Deviny fled the scene; Hedger was apparently killed instantly. Presumably, Brannan put Hedger's body in the back of his (Brannan's) pickup truck, drove around for a period of time, then left the body on a road in a relatively untraveled area. Brannan was discovered that same evening when his pickup overturned near a farmer's house. Hedger's body was inadvertently discovered about a month later by a CB group on a field trip. Brannan maintained he had no recollection of the event. He remembers the early morning activities on that day: he went to Miller's Tavern and had some wine, looked at a Caterpillar machine, came back and drank some more, and believes he became intoxicated. Around noon, while he was at the tavern, he received a telephone call from one of the victims. They apparently wanted him to take some explosives to the job site. He doesn't recall driving to the job site, seeing Deviny and Hedger, or shooting them. Sometime around 5 o'clock in the afternoon he was pulled out of his overturned pickup by one Bushnell, on whose farm road it overturned. Bushnell testified that Brannan told him he was in deep trouble and threatened to kill himself. This met with no opposition from Bushnell, who indicated he had saved a couple others from suicide and it turned out that they had a lot more trouble afterwards. Brannan went with Mr. Bushnell to his home where he had some coffee and cookies, and talked coherently with Bushnell and a neighbor, Lund, until the sheriffs came. Brannan told the neighbor, Lund, that he had killed a man. According to Brannan, his memory returned at Bushnell's house that evening.

Plaintiff insurance company had issued a homeowner's policy, insuring John C. Brannan and Mary L. Brannan, which was in effect at the time. Anticipating a claim against it, plaintiff carrier brought this declaratory judgment action seeking an adjudication that there was no coverage or duty to defend under the policy. The case was submitted to a jury, which returned a verdict in the form of answers to four interrogatories exonerating the carrier. The effect of it was that Deviny and Hedger's estate were foreclosed, in any action against John C. or Mary L. Brannan, from recovering from the insurer.

The policy did grant coverage to the activities of Mr. Brannan, unless his actions fell within specific policy exclusions. Page 3, paragraph E, in the section relating to coverages, states:

This company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an Occurrence.

(Italics ours.) Page 4 HO3, paragraph 5, under "Additional Definitions," states:

"Occurrence": means an Accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.

(Italics ours.) Instruction No. 10, given to the jury stated that "accident," as used in an insurance policy,

means an unexpected and unforeseen happening or occurrence which produces or brings about the resulting injury or death.

Defendant made no specific exception or objection to this instruction, but merely claims that it should not have been submitted to the jury, since there was no evidence to support a jury finding that it was not an accident. The first interrogatory to the jury was: "Was the wounding of Alfred E. Deviny and the death of Joseph Hedger an accident?" The jury answered: "No." The effect of that answer is a finding that since the event was not an accident, it was not an occurrence, hence was not covered, because only occurrences were within the terms of the policy. Stated another way: If the incident were not an accident, because in effect it was intended, then it was not an occurrence; thus, it is not covered by the terms of the policy. We shall consider the appropriateness of submitting that question to the jury in the discussion regarding exclusions.

The policy further provided, under "Exclusions," that it does not apply

d. to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits.

f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.

In answer to the other interrogatories, the jury stated:

2. That the injuries were intentional.

3. That they arose out of business pursuits.

4. That they were such activity not ordinarily incident to non-business pursuits.

Hence, the plaintiff prevailed on all grounds of exclusion from coverage. The appellant urges that no evidence supports the jury's finding on the first three questions, and that the fourth should not have been submitted to the jury. If there is substantial evidence to support the jury verdict, it must stand.

This was a homeowner's policy and was not concerned with the business pursuits of the insured. Indemnity for such would have to come from a business policy, except that if it appeared that the injuries arose out of business pursuits, and if the activity was ordinarily incident to a nonbusiness pursuit even though it may have appeared to have arisen out of a business pursuit, there still would be coverage. In effect, the jury said by its verdict that the shootings arose out of a business pursuit, were intended, and that shooting a business associate was not ordinarily incident to a nonbusiness pursuit.

There was substantial evidence that the jury could find that Hedger and Deviny were on the job, that they called the insured Brannan to bring out some explosives on the day in question, that he came out and that there was a discussion in reference to the payment of rent on a piece of equipment which concerned Mr. Brannan. He appeared glazed and acted strange. Then suddenly he started shooting. According to the testimony of a psychiatrist, Dr. S Levy, Mr. Brannan had told him he remembered going out to Liberty Lake and had a big argument with Deviny and Hedger; he got sore and "blew his stack." Then there was no more memory. The jury found that the shooting was intentional and arose out of his business pursuit and there is sufficient evidence to support that finding. The jury may not have believed the testimony concerning retrograde amnesia, which is frequently associated with physical impact, other than intoxicants, or it may have considered the evidence that Brannan told Bushnell he was in deep trouble, threatened suicide, and told Lund that he had killed a man.

As stated in Truck Ins. Exch. v. Aetna Cas. & Sur. Co., 13 Wash.App. 775, 777-78, 538 P.2d 529, 531 (1975),

(1) Doubtful terms or phrases are interpreted against the insurer . . .

(2) Exclusionary clauses are to be construed most strongly against the insurer. . . .

(3) The language of insurance policies is to be interpreted as it would be understood by the average man. . . .

(4) On the other hand, courts cannot create ambiguity or doubt where the language of the policy is not susceptible of more than one interpretation.

(Citations omitted.)

Defendants have cited some cases where there was a clear departure from business purposes, such as some personal animosity in striking a person, or a frolic unrelated to business. 1 We believe, however, that this case is controlled by the rationale of McHenry v. Short, 29 Wash.2d 263, 186 P.2d 900 (1947). In that case Short physically assaulted and killed McHenry. Short acted on behalf of the marital community interest when he ejected the deceased from the premises. Short was protecting property of which the community claimed ownership or over which it had some authority. There had been prior difficulties between the two men. Mr. Short made the statement: "I got mad and hit him." McHenry v. Short, supra at 270, 186 P.2d at 904. The court stated that, by a long line of decisions,

it has become the settled law of this state that, if the tortious act of the husband be committed in the management of community property or for the benefit of the marital community, such community is thereby rendered liable for the act, under the doctrine of Respondeat superior.

McHenry v. Short, supra at 273, 186 P.2d at 905. Short's act was committed in the management of the community real estate or in the prosecution of the community's business as being a watchman on the premises. Even though there may have been bad blood between the two men, the altercation was construed as one continuous affair. Thus, the court found that Short had not "shed his character as agent of the community, and was then proceeding upon a misdeed for which he alone was chargeable." McHenry v. Short, supra at 274, 186 P.2d at 906. In that case the tortfeasor was engaged in community business. Here, there was sufficient evidence to show a business quarrel, arising from John Brannan's business pursuits, in which he lost his head or "blew his stack." Certainly this series of events arose out of something, and all the evidence points to its having arisen out of a business call to defendant Brannan at the tavern, to which call he responded...

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