Summary
finding that the insured's "volitional acts of pointing the weapon at [the decedent] and pulling the trigger are not accidents and, therefore, are not covered under the policy."
Summary of this case from Trustgard Ins. Co. v. Old Nat'l Wealth Mgmt.Opinion
IP 01-0478-C-T/F.
May 15, 2002
ENTRY ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This is a declaratory judgment action brought by an insurance company against an insured homeowner and the estate of the deceased shot by the insured, seeking a construction of the terms of a homeowner's policy of insurance issued by the insurer to the homeowner and a determination of the rights and liabilities of the insurance company, if any. The insurance company has moved for summary judgment.
I. Background
Unless otherwise noted, the following facts are not in dispute. State Farm Fire and Casualty Company ("State Farm"), issued a homeowners policy of insurance, policy number 14-CE-4639-3 (the "Policy") to Wilson E. and Joyce F. Henderson (Compl. ¶ 8 Ex. A; Answer Def. Joyce Henderson ¶ 3), which was in effect from June 26, 1998 to June 26, 1999, (Compl. ¶ 9; Answer Def. J. Henderson ¶ 3.) The Policy provides in relevant part:
If a claim is made or a suit is brought against an insured for damages because of bodily injury . . . to which this coverage applies, caused by an occurrence, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice.
(Compl., Ex. A, § II, Liability Coverages, Coverage L — Personal Liability (emphasis in original).) The Policy defines "occurrence" as "an accident . . . which results in . . . bodily injury . . . during the policy period." (Compl., Ex. A, Definitions, ¶ 7.) The Policy defines "bodily injury" as "physical injury, sickness, or disease to a person. This includes . . . death resulting therefrom." (Id. ¶ 1.) The Policy excludes coverage for "bodily injury . . . (1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured. . . ." (Compl. ¶ 22; Def. Estate's Resp. Req. Admis. ¶¶ 10,16, 20; Compl., Ex. A, § II, Exclusions, ¶ 1.)
The Estate denies this fact, asserted in the Statement of Material Facts, numbers 10 and 11, arguing that reckless homicide is not an intentional act and that Joyce Henderson did not intend to shoot Alan Morgan. The Estate's response does not refute the fact asserted, and, the Policy language speaks for itself. The Estate therefore fails to raise a genuine issue of fact as to whether the Policy contains these exclusions.
Defendants, John F. Morgan and Marilyn F. Morgan, the personal representatives of the Estate of Alan Lee Morgan, brought a state wrongful death claim against Ms. Henderson. Their claim is based upon the events of December 13, 1998, when Ms. Henderson pulled the trigger of a weapon, causing a bullet to be projected, which bullet struck and killed Alan Lee Morgan. Ms. Henderson deliberately, consciously, intentionally and willfully pulled the trigger and knew she was pulling the trigger. (Req. Admis. J. Henderson Nos. 11-15; Def. Estate's Resp. Req. Admis. Nos. 11-15.) When Joyce Henderson fired the weapon, an injury was practically certain to occur. (Def. Estate's Resp. Req. Admis. No. 18.)
Having admitted these facts in response to requests for admissions, the Estate now attempts to deny them in reliance on Joyce Henderson's failure to serve a written answer or objection to the Estate's requests for admission served on her. Ms. Henderson's admissions, however, are not binding on State Farm. See, e.g., R.J. Alipour v. State Auto. Mut. Ins. Co., 131 F.R.D. 213, 215 (N.D.Ga. 1990) (Rule 36 admissions admissible into evidence only as against party who made admissions and not binding on other party). The Estate contends that Ms. Henderson's admissions are binding on State Farm because State Farm advised her on defense and trial strategy, relying on the Estate's exhibits R and M. But the Estate cites no authority to establish that either exhibit, Henderson's Motion to Stay Enforcement of Judgment in the wrongful death action or a letter written by her attorney in which he states that his client will not be attending the wrongful death trial and the insurer had approved, provides a sufficient basis for concluding that State Farm may be bound by Ms. Henderson's admissions. The Estate also relies on Ms. Henderson's denial in her Answer to the complaint in the wrongful death action that Alan's death was her fault and her denials in her answer to State Farm's complaint in this action. Ms. Henderson's pleadings are insufficient to overcome the matter admitted by the Estate's Rule 36 admission. Because State Farm was not a party or privy to these civil and criminal actions, the judgments cannot have preclusive effect against it. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7 (1979). Besides, Ms. Henderson testified at her criminal trial that "I got the gun and I pointed it [at Alan Morgan and her husband]. . . . I just fired it." (Estate's Ex. G at 677.) Thus, she admits to pointing the gun at Alan and shooting it.
Having admitted this fact in response to requests for admissions, the Estate attempts now to deny the assertion, citing Ms. Henderson's testimony at her criminal trial that she did not know how she hit Alan Morgan instead of her husband. This testimony does not raise an issue as to whether an injury was practically certain to occur, but rather, whether Alan or Bill was the one who was practically certain to be injured.
Joyce Henderson was convicted, after a jury trial, of the crime of Reckless Homicide for the actions which resulted in Alan Lee Morgan's death. She gave the following voluntary statement to police: "I pointed the gun at Alan and told him to stop, stop. Alan said he was going to kill me next. I then shot Alan once." (Estate's Resp. Req. Admis. ¶ 1; Req. Admis. J. Henderson No. 22.) She also stated in a telephone call to 911 that she shot the boyfriend, meaning Alan Morgan. (Estate's Resp. Req. Admis. ¶ 2; Req. Admis. J. Henderson No. 23.) At her criminal trial, Ms. Henderson testified that: "I got the gun and I pointed it, and they [Bill Henderson and Alan Morgan] was together and he [Alan] had Bill around the shoulders. I just fired it. I don't know how I hit him [Alan] instead of Bill[.]" (Estate's Resp. Req. Admis. ¶ 3 Ex. C at 677; Req. Admis. Def. J. Henderson No. 24.) This trial testimony was consistent with her grand jury testimony that she shot Alan. At sentencing, Ms. Henderson testified that "It was an awful thing that happened but as God as my witness, I had no other choice. It was either mine or Bill's life or both of us and he [Alan] made that really clear to us. . . ." (Estate's Resp. Req. Admis. ¶ 4 Ex. C at 1225; Req. Admis. J. Henderson No. 27.)
State Farm served requests for admissions pursuant to Rule 36 of the Federal Rules of Civil Procedure on Joyce Henderson to which she did not respond.
II. Analysis
State Farm contends it is entitled to summary judgment against Ms. Henderson and the Estate because (1) Alan Lee Morgan's death was not the result of an "occurrence" as the term is defined in the Policy, and (2) the exclusionary provision for bodily injury which is "expected or intended" by the insured applies in this case. State Farm also contends it is entitled to summary judgment against Ms. Henderson because of her failure to respond to its requests for admissions.
Summary judgment should be granted if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The record is viewed in the light most favorable to the nonmoving party with all reasonable inferences drawn in that party's favor. See Nat'l Soffit Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 264 (7th Cir. 1996).
Under Indiana law, the interpretation of an insurance policy is a legal question for the court. Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind. 1992); Nat'l Fire Cas. Co. v. West By Through Norris, 107 F.3d 531, 535 (7th Cir. 1997). If a policy's language is clear and unambiguous, it will be given its plain and ordinary meaning. Tate, 587 N.E.2d at 668; Nat'l Fire Cas. Co., 107 F.3d at 535.
In Transamerica Insurance Services v. Kopko, 570 N.E.2d 1283 (Ind. 1991), the Indiana Supreme Court held that an insurer's "duty to defend is determined solely by the nature of the complaint." Id. at 1285. The Indiana Court of Appeals subsequently has said that an insurer's duty to defend is determined from the allegations of the complaint and the facts known to or determinable by the insurer after reasonable investigation, see, e.g., Wright v. Am. States Ins. Co., 765 N.E.2d 690, 695 (Ind.Ct.App. 2002). As the Seventh Circuit noted in Huntzinger v. Hastings Mutual Insurance Co., 143 F.3d 302 (7th Cir. 1998), federal courts interpreting and applying Indiana law are bound by Kopko. Id. at 309 n. 8. Thus, the court follows Kopko and examines the factual allegations of the underlying complaint to determine whether State Farm has a duty to defend Joyce Henderson.
Even if the court were to apply the more liberal standard of the Indiana Court of Appeals, the outcome would be the same as the Estate has not pointed to any facts known or determinable by State Farm after a reasonable investigation which would support a finding that State Farm has a duty to defend Joyce Henderson.
A. Coverage
The Policy provides coverage for bodily injury caused by an "occurrence," which is defined as "an accident." The Policy, however, does not define "accident." Under Indiana law, an intentional act is not an "accident" as the term is used in the standard insurance policy definition of "occurrence." See Fid. Guar. Ins. Underwriters, Inc. v. Everett I. Brown Co., L.P., 25 F.3d 484, 487-89 (7th Cir. 1994) (holding insurer had no duty to defend or indemnify where underlying complaint alleged intentional conduct which was not an "accident" and not an "occurrence" under the policy's terms); Allstate Ins. Co. v. Norris, 795 F. Supp. 272 (S.D.Ind. 1992) (no "accident" and no duty to defend where the insured fired several shots in an attempt to "pin down" an unidentified man, but struck a passerby instead).Norris is particularly instructive. At issue there was whether an insurer was liable under a homeowner's policy for damages sustained by a bystander shot by the insured as he attempted to "pin down" an assailant until law enforcement arrived. 795 F. Supp. at 273. The homeowner's policy provided that the insurer would pay for damages arising from an "accident," but the term was not defined in the policy. Norris, 795 F. Supp. at 274. In deciding whether the insurer was liable under the policy, the court noted the distinction "between an event that is unexpected or unintended (which is an accident), and an event or act that is intended, but causes unexpected consequences (which is not)." Id. at 275. The court said that "a volitional act — which is always intended — does not constitute an accident, even where the results may be unexpected or unforeseen." Id. The court concluded that the plaintiff's injuries did not result from an accident and, therefore, were not covered under the policy. The court said this conclusion applied even if the insured did not intend to hit anyone in particular because "it is undisputed that [the insured] meant to fire his gun, and that he meant to fire it in the direction of the house where [the bystander] was standing. [The insured's] actions therefore were volitional, and clearly not accidental, whether or not their consequences were unforeseen." Id.
The court does not cite Norris for its discussion of any exclusionary provision, so the Estate's attempt to distinguish the case on the basis of such a provision fails.
The Estate has admitted in its responses to State Farm's requests for admissions that Joyce Henderson deliberately, consciously, intentionally, and willfully pulled the trigger of the weapon that projected the bullet that struck and killed Alan Lee Morgan and that she knew she was pulling the trigger of the weapon. Thus, these facts are "conclusively established" as against the Estate. Fed.R.Civ.P. 36(b). These facts also are "conclusively established" as against Joyce Henderson by her failure to answer or object to the requests for admissions served on her by State Farm. Id. Other evidence, namely Joyce Henderson's voluntary statement to police, her testimony before the grand jury, at her criminal trial and at sentencing, as well as the transcript of her 911 phone call, also establish that the shooting of Alan Lee Morgan was an intentional act rather than an accident.
Even assuming that Joyce Henderson did not intend to kill Alan Morgan, it is undisputed that she intended to point the weapon at him, intended to pull the trigger, and did, in fact, pull the trigger of the weapon that discharged the bullet that struck and killed him. Her volitional acts of pointing the weapon at Alan Morgan and pulling the trigger are not accidents and, therefore, are not covered under the policy. Following Norris, this conclusion applies even if Joyce did not know how she hit Alan rather than her husband. Cf. Norris, 795 F. Supp. at 275 (concluding that plaintiff's injuries did not result from an accident even if insured did not intend to hit anyone in particular because he meant to fire his gun and meant to fire it in the direction of the house where the plaintiff was standing). Ms. Henderson intended to shoot her weapon and intended to shoot at Alan. (And she did.)
As the material facts are not in dispute, State Farm is entitled to judgment as a matter of law that the incident is not an "occurrence" and thus not a covered loss under the State Farm homeowner's policy issued to the Hendersons.
B. Exclusion
State Farm also argues that there is no coverage under the Policy because the "expected or intended" exclusion applies. Indiana cases have addressed the meaning of expected or intended exclusionary provisions like the one at issue here. "Intentional" has been defined by the Indiana Supreme Court as "the volitional performance of an act with an intent to cause injury, although not necessarily the precise injury or severity of damage that in fact occurs." Allstate Ins. Co. v. Herman, 551 N.E.2d 844, 845 (Ind. 1990) (quotation omitted) (holding that when insured intentionally fired a gun into a fleeing crowd, he was deliberately committing an act any reasonable person would deem calculated to cause injury and, therefore, policy exclusion for intentional acts applied); Home Ins. Co. v. Neilsen, 332 N.E.2d 240, 244 (Ind.Ct.App. 1975) (intent to cause injury may be established by showing actual intent to injure or by showing the nature and character of the act to be such that intent to cause harm to the other party must be inferred as a matter of law).
Bolin v. State Farm Fire and Casualty Co., 557 N.E.2d 1084 (Ind.Ct.App. 1990), relied on by the Estate, is factually distinguishable. The court concluded that the insured's act of shooting a pellet gun at the rear of the victim's truck was not intentional as a matter of law, but rather, created a jury question. Id. at 1090. The evidence was that the insured aimed for the rear of the truck rather than at the victim, and did so because it created more noise and was safer. Id. at 1089. In contrast, Joyce Henderson aimed the weapon at Alan Morgan (as well as her husband) and pulled the trigger. Her actions in aiming the weapon and pulling the trigger are nothing like aiming for the rear of the truck.
Even if the undisputed facts did not establish that Joyce Henderson intended to injure Alan, an inference of intent to harm him must be drawn from the nature of the act itself. See, e.g., Herman, 551 N.E.2d 845 (inferring intent where there was no evidence that insured intended to specifically shoot the victim, but intended to and deliberately shot into a crowd of people, thus injuring the victim); Neilsen, 332 N.E.2d at 244 (inferring intent to injure where insured deliberately struck victim in the face with his fist). Joyce Henderson intended to and deliberately pulled the trigger of the weapon she aimed at Alan Morgan. Therefore, the necessary intent to cause injury to Alan Morgan must be inferred as a matter of law. Accordingly, even if her acts were an occurrence under the policy, the intended or expected injury exclusion would apply.
This determination renders it unnecessary to consider whether the willful and wanton act exclusion also applies.
C. State Farm's Requests for Admissions to Joyce Henderson
State Farm also is entitled to summary judgment against Joyce Henderson on the basis of her failure to answer or object to its requests for admissions. A party who fails to respond to a request for admission within thirty days after service of the request admits said request. Fed.R.Civ.P. 36(a); see Walsh v. McCain Foods Ltd., 81 F.3d 722, 726 (7th Cir. 1996). Any matter admitted by failure to respond to a request for admission is "conclusively established," Fed.R.Civ.P. 36(b), and "can serve as the factual predicate for summary judgment." United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987).By failing to respond to State Farm's requests for admissions, Joyce Henderson admitted the following material facts which are conclusively established: On December 13, 1998, she pulled the trigger of a weapon, which caused a bullet to be projected out of the weapon, which bullet struck Alan Lee Morgan, causing his death (Req. Admis. Nos. 6-9); she deliberately, consciously, intentionally and willfully pulled the trigger, and knew she was pulling the trigger (Req. Admis. Nos. 11-15); when she fired the weapon, an injury was practically certain to occur (Req. Admis. No. 18); and her conduct is excluded as a bodily injury expected by an insured and thus is not covered under the policy at issue. (Req. Admis. No. 19.) Consequently, State Farm is entitled to judgment as a matter of law against Joyce Henderson.
D. Equitable Estoppel and Laches
The Estate argues that the defenses of equitable estoppel and laches raise genuine issues of material fact. Detrimental reliance by the defendant is an element of the defense of equitable estoppel. Lake County v. State ex rel. Manich, 631 N.E.2d 529, 534 (Ind.Ct.App. 1994); see also Ind. Dep't of Envtl. Mgmt. v. Conard, 614 N.E.2d 916, 921 (Ind. 1993). The defense of laches has three elements: inexcusable delay in asserting a right, implied waiver, and prejudice. The Estate has not offered any evidence to show that it can prove the elements of either of these defenses. Merely arguing that there is a triable issue is not enough to defeat summary judgment.
III. Conclusion
As the material facts are not in dispute, State Farm is entitled to judgment as a matter of law that Joyce Henderson's shooting and killing of Alan Lee Morgan is not an "occurrence" and thus not a covered loss under the State Farm homeowner's policy issued to the Hendersons; State Farm has no duty to defend Joyce Henderson in any litigation, specifically including the wrongful death civil action in the Lawrence County Circuit Court, Estate of Alan Lee Morgan v. Joyce Henderson, Cause Number 47C01-9912-CP-1100; and State Farm is not liable to satisfy or pay any judgment or portion thereof that may be rendered against Joyce Henderson and in favor of the Estate in that wrongful death action. State Farm's motion for summary judgment will be granted, and its motion for protective order is denied as moot.
ALL OF WHICH IS ORDERED.