Yount v. Maisano

• Decision Date: 29 November 1993
• Docket Number: No. 93-C-1276,93-C-1276
• Citation: 627 So.2d 148
• Parties: Scott YOUNT and Royce Yount v. John MAISANO, Dr. Joseph V. Maisano, Individually and on Behalf of his Minor Son, William Maisano and William Maisano; Buelah Pommels, Individually and on Behalf of Her Minor Son, Charles Pommels and Charles Pommels and United Services Automobile Association.
• Court: Louisiana Supreme Court

Page 148

627 So.2d 148

Scott YOUNT and Royce Yount v. John MAISANO, Dr. Joseph V. Maisano, Individually and on Behalf of his Minor Son, William Maisano and William Maisano; Buelah Pommels, Individually and on Behalf of Her Minor Son, Charles Pommels and Charles Pommels and United Services Automobile Association.

No. 93-C-1276.

Supreme Court of Louisiana.

Nov. 29, 1993.

Rehearing Denied Jan. 6, 1994.

Timothy G. Schafer, Wade Dillard Rankin, Schafer & Schafer, New Orleans, for applicant.

Michael E. Wanek, Hulse, Nelson & Wanek, John A. Stewart, Jr., Lozes & Cambre, Felicien P. Lozes, New Orleans, Barry F. Viosca, Metairie, for respondent.

HALL, Justice. ^*

We granted certiorari in this case to determine whether defendant's homeowner's insurance policy, issued by United Services Automobile Association, provides coverage for injuries sustained by plaintiff as a result of a beating inflicted by the insured when the policy contains an exclusion for bodily injury "expected or intended by the insured." The trial court found the exclusion did not apply and the court of appeal affirmed. We reverse.

I.

While vacationing in Destin, Florida on the evening of July 4, 1987, plaintiff Scott Yount (Scott), age 18, his brother, Louis Dean Yount, Jr. (Dean), age 20, and Peter Wanek (Peter), age 19, were walking along the beach when a bottle rocket struck Peter in the back, fell away and harmlessly exploded. Peter, angered by the incident, confronted a group of young men sitting on the beach, William Maisano (Billy), age 17, John "Bo" Maisano (Bo), age 20 and enlisted in the army, Charles "Casey" Pommels (Casey), age 17, and John Durnin (John), age 20 and also in the army. All of the young men, except Billy, had been drinking all day and were intoxicated. There was an exchange of unpleasantries between Casey and Peter, which erupted into a minor fight during which Casey and John hit Peter. Peter, Scott and Dean retreated and continued down the beach.

Peter, who sustained a bloody lip in the altercation, was still seething over the confrontation. Scott found a stick on the beach and gave it to Peter to use as a weapon if he wanted to get even with the other crowd. Peter, with stick in hand, returned a second time to confront the other group and resume the fight. Scott and Dean followed closely behind. As the two groups converged, John managed to disarm Peter, threw the stick to Bo, who used it to strike Peter. Scott, at that point, reacting to the situation, hit Bo in the face. There is some dispute in the record as to what occurred next. Scott testified that he then ran away, but Bo, Billy and Casey testified that Scott was tackled by Billy, and Bo was able to get in a few blows before Scott's retreat. No serious injuries resulted from this second altercation.

Scott, Dean and Peter continued down the beach and then stopped to rest on an overturned boat. At that time, Scott discovered that his keys and wallet were missing. He and Dean decided to search the area of the beach they had traversed in hope of finding the items. Coincidentally, Bo, Billy, Casey and John were also walking back to the area where the two earlier confrontations had occurred after they were unsuccessful in finding a friend's condominium. During this time, Bo discovered that the punch thrown by Scott during the second fight had broken one of his teeth, and as a result Bo was extremely angry.

Bo caught sight of Scott walking on the beach and his pace quickened. He jumped Scott from behind, without warning, and took him down. Scott was on his hands and knees as Bo punched and kicked him. Scott was unable to offer any resistance other than to put his hands over his head. Finally, Billy pulled Bo off Scott, making a comment to the effect that Scott had had enough.

Scott and Dean ran down the beach and met up with Peter. At that point, it was discovered that Scott was seriously injured. An ambulance was called and after receiving treatment that night at a Destin, Florida hospital for facial injuries, Scott was transported to New Orleans the next day for more treatment and surgery. His injuries consisted of multiple fractures of the jaw, broken and lost teeth, lacerations of the ears, contusions, abrasions and bruises. These injuries required his jaw be wired shut for six weeks.

Scott and his father, Royce Yount, filed suit against Bo Maisano, Billy Maisano, Dr. Joseph Maisano, as father of his minor son Billy, Casey Pommels, and Catherine Authement, as mother of her minor son, Casey. ¹ Bo Maisano filed a third-party demand against United Services Automobile Association (USAA), his homeowner's insurer, for indemnity and a defense. USAA denied it provided coverage for this incident based on the intentional act exclusion in its policy that barred coverage for bodily injury "which is expected or intended by the insured."

The jury ruled in favor of plaintiffs, specifically finding in answer to an interrogatory, that the injuries to Scott were not intended or expected from the standpoint of Bo. Judgment was originally rendered against Bo Maisano, Billy Maisano, Casey Pommels and USAA for $160,000 in damages. Motions for new trial were filed by all parties, after which the trial judge entered a new judgment finding only Bo Maisano and USAA liable to plaintiffs for $160,000.

USAA appealed, contending that it was not liable under its policy exclusion and complaining of prejudicial misstatements made by plaintiffs' counsel during closing arguments. Bo Maisano and his father answered the appeal seeking attorney's fees from USAA for failure to defend. ² The court of appeal affirmed and remanded, with Judge Bowes dissenting, 616 So.2d 1382 (La.App. 5th Cir.1993). The court of appeal ruled that "there was a reasonable, factual basis for the jury's conclusion that Scott Yount's serious injuries were neither intended nor expected by the insured, Bo Maisano." The court also found that the comments made during closing arguments were cured by the jury instruction that argument of counsel is not evidence to be considered by the jury. Finally, since the court concluded that USAA was liable and had a duty to defend Bo Maisano, USAA was held liable to Bo Maisano for attorney's fees in the amount of $3,000 for the appeal, and the court remanded for a determination of the amount of attorney's fees due for the trial court proceedings.

In dissenting, Judge Bowes found that the testimony of Bo Maisano established that he wanted to get Scott, punched plaintiff twenty times and kicked him at least twice. From these actions, Bo should have expected that the injuries would result. Judge Bowes commented that the majority opinion defeats the purpose of the intentional act exclusion, since it allowed the insured to severely and intentionally beat the plaintiff, knowing that his insurance company would pay for the damages. Finally, Judge Bowes concluded by noting:

... this is not a case of one or two thoughtless (but powerful) blows inflicting much damage as was the case in Breland, Keathley [v. State Farm Fire & Casualty Ins. Co., 594 So.2d 963 (La.App. 3rd Cir.1992) ], and Baugh [v. Redmond, 565 So.2d 953 (La.App. 2d Cir.1990) ] where it was held that the insured did not "intend nor expect" the damages that resulted. This is a case of a long, deliberate and intentional beating, resulting from anger and intention that was built up within over two previous earlier incidents and ( 1/2 hour), with the hope and expectation of inflicting severe damage on another human being as revenge.

Yount v. Maisano, 616 So.2d at 1389-90 (footnotes omitted).

We granted USAA's writ application, 620 So.2d 823 (La.1993).

II.

Policies should be construed to effect, not deny, coverage. Breland v. Schilling, 550 So.2d 609, 610 (La.1989); Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1984); LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978). Any ambiguity in an exclusion should be narrowly construed in favor of coverage. Great American Insurance Company v. Gaspard, 608 So.2d 981 (La.1992); Breland, supra; Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972). The "expected or intended" exclusion has been held to be ambiguous. Pique v. Saia, 450 So.2d 654 (La.1984); Breland, supra; Great American Insurance Co., supra. The insurer bears the burden of proving the applicability of the intentional injury exclusion. LA. Maintenance v. Certain Underwriters, 616 So.2d 1250 (La.1993); Great American Insurance Co., supra. The purpose of the intentional injury provision is "... to prevent an insured from acting wrongfully with the security of knowing that his insurance company will 'pay the piper' for the damages." Breland, 550 So.2d at 610, quoting Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181, 186 (1984); Great American Insurance Co., supra.

The exception, by its language, makes it clear that not all injuries resulting from an intentional act will be excluded, but only those injuries that were themselves intended. Breland, supra; Great American Insurance Co., supra. "The subjective intent of the insured, as well as his reasonable expectations as to the scope of his insurance coverage, will determine whether an act is intentional. An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur." Great American Insurance Co., 608 So.2d at 985; Breland, supra, quoting United Servs. Auto. Ass'n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982, 989 (1986). As for the reasonable expectation of the insured regarding the scope of his coverage, this court has held that:

... when minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when minor injury is intended,...