Western Fire Ins. Co. v. Persons
| Decision Date | 16 September 1986 |
| Docket Number | No. C7-86-73,C7-86-73 |
| Citation | 393 N.W.2d 234 |
| Parties | WESTERN FIRE INSURANCE COMPANY, Respondent, v. James R. PERSONS, Respondent, Mark Henry Duwal, Appellant, Howard Johnson Company, et al., Respondents. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Trial court did not abuse its discretion by severing declaratory judgment action
concerning insurance coverage from underlying tort action.
2. Trial court erred in failing to instruct jury on self-defense as possible bar to application of intentional tort exclusion of insurance policy.
Reversed.
George W. Flynn, Kari L. Anderson, Faegre & Benson, Minneapolis, for Western Fire Ins. Co.
James R. Persons, pro se.
J. Kevin McVay, McVay and O'Connor, Minneapolis, for Duwal.
Michael S. Kreidler, Lasley, Gaughan, Stich & Angell, P.A., Minneapolis, for Howard Johnson Co. et al.
Heard, considered and decided by LESLIE, P.J., and WOZNIAK, and CRIPPEN, JJ.
Mark Duwal appeals from an order denying his motion for new trial and from a judgment that his injuries were not covered by an insurance policy issued by respondent because they resulted from an intentional act of the insured. We reverse.
Respondent Western Fire Insurance Company (Western) insured James Persons under a homeowner's policy. The policy stated that the company would defend Persons if a suit was brought against him. The policy excluded coverage for "bodily injury * * * which is expected or intended by the insured." Under the heading "additional coverages," the policy stated that the company would pay "reasonable expenses incurred by any insured at our request * * *."
On July 13, 1983 Persons shot appellant Mark Duwal in the parking lot of the Howard Johnson's Motel in Bloomington, Minnesota. The record reflects two main versions of the facts leading to the shooting incident.
James Persons, senior vice-president of a major bank in Eau Claire, Wisconsin, testified that on the night of the shooting he was staying at the Howard Johnson's Motel while on business. Persons further testified that he went for a walk that evening after having drunk beer in the motel bar. While walking through the motel parking lot he heard a woman scream. He obtained a derringer loaded with birdshot from his van and rushed to where the noise had come from. Persons claimed that after he approached the woman appellant Mark Duwal attacked him. Persons further indicated that he fired a first shot to scare away his assailant and a second shot to unload the gun, so as to prevent the assailant from using the gun against him.
Duwal testified that Persons confronted him and two women in the motel parking lot that night. Persons approached the women, asked which one was for him, and then, at Duwal's suggestion, walked away. Duwal claimed that Persons then spun around to a shooting stance and shot him in the hip. Duwal then attempted to disarm his attacker, whereupon he was shot in the palm of his hand.
Duwal commenced a tort action against Persons on January 12, 1984, alleging negligence and/or intentional tort. The tort action also named as defendants Howard Johnson Company and its bartender Deonne Wilkins, alleging a dram shop violation. Respondent Western, the homeowner's liability insurer of defendant Persons, agreed to defend the tort action with a reservation of rights, selecting and paying attorney Robert Austin to represent Persons. The tort action was certified ready for trial on February 8, 1985. In May 1985, Western commenced a declaratory judgment action, alleging that Persons intended to injure Duwal and that therefore coverage was excluded.
The trial judge held a pre-trial conference for the tort action on July 23, 1985. Counsel for Western attended the conference to discuss the relationship between the declaratory judgment and tort actions. The judge indicated that if both cases were assigned to him after a calendar motion hearing to the chief judge, he would probably try the cases together. Neither Persons nor Austin, the attorney hired by Western to represent Persons, attended this conference. The chief judge, upon a motion by Western, consolidated both cases before the trial judge.
The trial judge called both cases for trial on Friday afternoon, September 27, 1985. All attorneys for both cases appeared. Persons did not appear because Austin had arranged for him to meet in Austin's office on the following Monday morning, the day it was expected the trial would actually begin.
Western moved for sequential trials in a motion dated September 26, requesting that the court try the declaratory judgment action first. At the hearing, Austin joined in the motion arguing that such procedure would avoid conflict of interest and prejudice to the parties and further judicial economy. Appellant's counsel argued against severing the cases and pointed out that Persons would not have an attorney on the declaratory judgment action if the court were to grant the motion. The trial judge granted the motion and set trial on the declaratory judgment action to commence on Monday afternoon, September 30.
At trial the primary issue was whether or not Persons' shooting of Duwal fell under the provision of Persons' homeowner's insurance policy excluding coverage for "bodily injury * * * which is expected or intended by the insured." Persons, appearing pro se, and appellant's counsel disputed respondent counsel's claim that Persons' actions resulted in bodily injury which was expected and intended. If respondent's claim was correct, the incident would not be covered by the insurance policy issued by respondent.
Additionally, appellant requested a special jury instruction providing for self-defense as a possible bar to application of the insurance policy's exclusionary provision. The trial court rejected such an instruction.
The jury found that James Persons expected or intended bodily injury to occur when he fired the two shots. Judgment was entered that the insurance policy did not afford Persons coverage for the shooting incident and that Western had no obligation to defend and/or indemnify Persons in the tort action. The trial court denied appellant's motion for new trial and judgment notwithstanding the verdict.
1. Did the trial court properly act within its discretion in severing the declaratory judgment action from the tort action?
2. Did the trial court err by failing to instruct the jury as to self-defense as a possible bar to application of the exclusionary provision of the insurance policy?
1. Appellant argues that the trial court abused its discretion in severing the declaratory judgment action from the tort action on the day of trial. Initially, we must recognize the long-standing policy of encouraging resolution of insurance coverage disputes in separate declaratory judgment actions. Grain Dealers Mutual Insurance Co. v. Cady, 318 N.W.2d 247, 249 n. 3 (Minn.1982). The trial court may order a separate trial of any issue for convenience, to avoid prejudice, or to serve the interest of expedition and judicial economy. Minn.R.Civ.P. 42.02. On the other hand, consolidation may be properly ordered when actions pending before the court involve "a common question of law or fact." Minn.R.Civ.P. 42.01. Questions of consolidation and severance rest within the sound discretion of the trial court. Fitzer v. Bloom, 253 N.W.2d 395, 401-02 (Minn.1977). The trial court must balance convenience against the possibility of prejudice. Id. at 402. The court may sever the actions for trial if undue confusion might otherwise result. Id.
The trial court concluded that the actions should be severed to avoid the conflict that may result from requiring the insurer to take two positions at trial: defending the insured in the tort action and defending itself on the coverage action. In the interest of judicial economy and to minimize possible prejudice to both parties, the court decided to first try the declaratory judgment action. We cannot say the trial court abused its discretion in so holding. See Clemens v. Wilcox, 392 N.W.2d 863 (Minn.1986).
Appellant argues that Glens Falls Group Insurance Corp. v. Hoium, 294 Minn. 247, 200 N.W.2d 189 (1972) mandates that such coverage disputes be resolved at trial along with the underlying tort issues. Appellant claims that submission of a special verdict on the issue of intent is part of this mandated procedure. We disagree.
The language appellant cites in Glens Falls is dicta which, if given appellant's meaning, would be inconsistent with subsequent case law. In fact Glens...
To continue reading
Request your trial
-
Vermont Mut. Ins. Co. v. Walukiewicz
...572, 574 (Del.Super.1997), reargument denied, 1998 WL 437138, 1998 Del.Super. Lexis 292 (April 29, 1998); Western Fire Ins. Co. v. Persons, 393 N.W.2d 234, 237 (Minn.App.1986); Allstate Ins. Co. v. Novak, 210 Neb. 184, 193, 313 N.W.2d 636 (1981); Preferred Mutual Ins. Co. v. Thompson, 23 Oh......
-
Stoebner v. S. DAK. FARM BUREAU MUT. INS.
...or intended by the insured.1 Safeco Ins. Co. of America v. Tunkle, 997 F.Supp. 1356, 1360 (D.Mont.1998); Western Fire Ins. Co. v. Persons, 393 N.W.2d 234, 237 (Minn.App. 1986); Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636, 641 (1981); Preferred Mut. Ins. Co. v. Thompson, 23 Ohio......
-
State Farm Fire and Cas. Co. v. Poomaihealani
...64 (D.Or.1984).3 Other jurisdictions and this court do not find this mechanical interpretation appropriate. See Western Fire Ins. Co. v. Persons, 393 N.W.2d 234 (Minn.App.1986); Preferred Mut. Ins. Co. v. Thompson, 23 Ohio St.3d 78, 23 Ohio B.R. 208, 491 N.E.2d 688 (1986); Fire Ins. Exchang......
-
Watkins v. S. Farm Bureau Cas. Ins. Co.
...582, 966 A.2d 672 (2009); Deakyne v. Selective Ins. Co. of Am., 728 A.2d 569 (Del.Super.Ct.1997); [Ark. App. 9]W. Fire Ins. Co. v. Persons, 393 N.W.2d 234 (Minn.App.1986); Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981); Preferred Mut. Ins. Co. v. Thompson, 23 Ohio St.3d 78,......