Opinion
Docket No. 119469.
Decided December 30, 1991, at 9:00 A.M. Leave to appeal sought.
Draugelis Ashton (by John A. Ashton), for State Farm Fire Casualty Company.
Garan, Lucow, Miller, Seward, Cooper Becker, P.C. (by James L. Borin and Mark C. Smiley), for League General Insurance Company.
Rifkin Kingsley, P.C. (by Brian J. Kingsley), for Mary Davis.
Before: DOCTOROFF, P.J., and GILLIS and REILLY, JJ.
Intervening defendant Mary Davis, personal representative of the estate of Kendrick Davis, deceased, appeals as of right from the circuit court's orders granting plaintiff State Farm Fire and Casualty Company's and intervening plaintiff League General Insurance Company's motions for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
Kendrick Davis was shot and killed by James Curtis Fisher, Jr., a minor, on June 28, 1986. At the time of the shooting, Davis was a passenger in a car driven by Jerome Rucker and James was a passenger in his parents' Jeep, which was being driven by his sister, defendant Carrie Fisher, age nineteen.
On the day of the incident, Carrie and James were left home by their parents and other siblings, who went on a trip to Illinois. Earlier in the evening, before the shooting, Carrie apparently was physically assaulted by Jerome Rucker. When Carrie told James of the assault, he went to the garage and retrieved a tire jack. He then used the jack to pry open a closet that was secured by a Yale lock, in order to get his father's rifle. He loaded the gun with shells he found in his father's dresser. Then he and Carrie left the house, took their parents' Jeep, and began their search for Rucker. They located Rucker's car and pursued it. James fired three shots, none of which hit the moving vehicle. The fourth shot penetrated the rear window, killing Kendrick Davis. James and Carrie were subsequently convicted in Detroit Recorder's Court of voluntary manslaughter. MCL 750.321; MSA 28.553.
Mary Davis brought an action in the Wayne Circuit Court, alleging that the decedent died as a result of James' negligent use of a firearm. The complaint was subsequently amended to include allegations of automobile negligence on the part of Carrie and James. State Farm, which had issued a homeowner's insurance policy to James Fisher, Sr., and Sharon Fisher, the parents of Carrie and James, brought this declaratory judgment action, claiming that it was not liable to defend or indemnify Carrie and James in the underlying action brought by Davis. League General, the insurer of the Jeep, subsequently intervened and also asserted that it owed no duty to defend or indemnify James and Carrie. Davis intervened as a defendant.
The complaint also alleged that James Fisher, Sr., and Sharon Fisher, the parents of James and Carrie, were negligent in the supervision of their children and in their entrustment of the vehicle to Carrie. The trial court granted the parents' motion for summary disposition. We affirmed this decision in Davis v Fisher, unpublished opinion per curiam of the Court of Appeals, decided December 6, 1991 (Docket No. 119678).
Both State Farm and League General brought motions for summary disposition pursuant to MCR 2.116(C)(10), claiming that their policies excluded coverage for the type of injury suffered by Kendrick Davis. The trial court found that, because the convictions of James and Carrie conclusively established that the shooting of Kendrick Davis was intentional, the exclusions in the State Farm and League General insurance policies applied. Accordingly, the court determined that the insurance companies did not have a duty to defend or indemnify James or Carrie in the underlying lawsuit.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. The trial court, in ruling on the motion, must consider the pleadings, affidavits, depositions, and other documentary evidence submitted by the parties. The court must decide, giving the benefit of any reasonable doubt to the nonmoving party, whether the kind of record that might be developed will leave open an issue upon which reasonable minds might differ. This Court is liberal in finding a genuine issue of material fact. However, where the opposing party fails to come forward with evidence, beyond allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted. Zeniuk v RKA, Inc, 189 Mich. App. 33, 36; 472 N.W.2d 23 (1991); MCR 2.116(G)(4).
Davis claims that the trial court erred in granting the motions for summary disposition. She argues that the policy exclusions should not apply because the decedent's injuries were accidental and were not expected or intended by James and Carrie. We will address each policy separately.
STATE FARM'S HOMEOWNER'S POLICY
State Farm's homeowner's policy excludes liability for "bodily injury . . . which is expected or intended by an insured." This exclusionary clause is applicable if the decedent's injuries occurred as the natural, foreseeable, expected, and anticipated consequence of James' or Carrie's intentional acts. Allstate Ins Co v Freeman, 432 Mich. 656; 443 N.W.2d 734 (1989); State Farm Fire Casualty Co v Johnson, 187 Mich. App. 264, 266; 466 N.W.2d 287 (1991). James and Carrie were convicted of voluntary manslaughter. An essential element of the crime of voluntary manslaughter is the intent to kill or commit serious bodily harm. People v Delaughter, 124 Mich. App. 356, 360; 335 N.W.2d 37 (1983). See also People v Pouncey, 437 Mich. 382, 388; 471 N.W.2d 346 (1991).
Davis argues that the trial court erred in finding that the convictions of Carrie and James conclusively established that the decedent's injury was intended or expected by James or Carrie and was therefore within the policy exclusion. Davis asserts that the court should have employed a subjective test in order to determine the intent of James and Carrie. She argues that, because James and Carrie both have asserted that the shooting was an accident, there was a factual issue whether they expected or intended to cause the fatal injury suffered by Davis, and therefore summary disposition was inappropriate. We disagree.
The trial court granted summary disposition under MCR 2.116(C)(10), relying on Aetna Casualty Surety Co v Sprague, 163 Mich. App. 650; 415 N.W.2d 230 (1987). In Sprague, the insured was found guilty but mentally ill of first-degree murder. The trial court granted the insurer's motion for summary disposition, finding that there was no genuine issue of material fact with regard to whether the insured expected or intended to kill the victim. A panel of this Court affirmed, noting that the insured's conviction established that he intended, or at least expected, that the victim would die and that the insured's proof in support of the opposite contention did not raise any issue of fact. Id. at 654-655.
We agree with the trial court that no genuine issue of material fact existed with regard to the application of the exclusionary clause in the State Farm policy. A criminal conviction is admissible in a declaratory action in order to determine whether an insurer has a duty to defend and indemnify its insured. State Farm Fire Casualty v Moss, 182 Mich. App. 559, 562; 452 N.W.2d 816 (1989). The deposition testimony of James and Carrie presents essentially the same recitation of facts as was presented at the criminal trial. The Fishers' convictions were based in part on the court's finding that they intended to kill the decedent or inflict serious bodily harm. Carrie and James' denial of intent to injure is not sufficient to overcome the incontrovertible conviction. There is no issue of fact regarding intent. Moss, supra; Sprague, supra at 654-655.
Davis asserts that this Court must employ the subjective test in order to determine the insureds' expectations or intent. It is argued that, because James and Carrie denied at trial and in their deposition testimony that the shooting was intentional, intent cannot be established under the subjective test. In Metropolitan Property Casualty Ins Co v DiCicco, the companion case to Freeman, supra, a majority of the Court interpreted an insurance provision that excluded coverage for injuries either "expected or intended from the standpoint of the insured" as requiring the use of a subjective test to determine the expectations or intent of the insured. Freeman, supra at 672. Justice BOYLE noted that the absence of the word "reasonably" together with the clause "from the standpoint of the insured" clearly imparted a subjective standard. Id. at 709.
The Fishers' policy does not contain the language "from the standpoint of the insured." Therefore, we would find that the subjective test is not required in the present case. See Secure Ins Co v Blotsky, 182 Mich. App. 637, 642; 452 N.W.2d 899 (1990). However, in Alber v Farm Bureau Ins Co, 187 Mich. App. 557, 560; 468 N.W.2d 282 (1991), another panel of this Court found that a clause excluding coverage for injuries "caused intentionally by or at the direction of the insured" requires application of the subjective test. We disagree with the conclusion reached in Alber that "[w]here the exclusionary language requires that the injury be intentionally caused, the exclusionary clause is applicable only if the insured subjectively intended both his act and the resulting injury." Id. (Emphasis added.) Although we do not believe the subjective test is required by Freeman unless the policy language covers injuries "expected or intended from the standpoint of the insured," we are bound to follow Alber. Administrative Order No. 1990-6, 436 Mich. lxxxiv.
Nevertheless, whether we apply the objective or the subjective test, the actions of Carrie and James come within the exclusion for an injury either "expected or intended by an insured." As noted above, both Carrie and James were convicted of voluntary manslaughter, which required a finding that each intended to kill or commit serious bodily harm. It makes no difference that death resulted when only serious bodily harm was intended. Once intended harm is established, the fact of an unintentional injury is irrelevant. Johnson, supra at 267. The convictions resolved any factual issue with respect to the subjective intent of Carrie and James. Therefore, although the trial court did not employ the subjective test, we find that the court properly granted State Farm's motion for summary disposition. See State Mutual Ins Co v Russell, 185 Mich. App. 521, 528; 462 N.W.2d 785 (1990).
The insured in Alber was convicted of third-degree criminal sexual conduct under MCL 750.520d(1)(c); MSA 28.788(4)(1)(c). In order to establish criminal liability in that case it was only necessary to prove that the insured "knew or had reason to know" that the woman with whom he had sexual intercourse was mentally incapacitated. Alber, supra at 564, n 2. Whether the victim acquiesced was irrelevant. It was not necessary to prove that the defendant intended to harm her. Therefore, the conviction in Alber differs from the convictions in the present case, which were based on the trial court's findings that James and Carrie acted with intent to kill or commit serious bodily harm.
LEAGUE GENERAL'S AUTOMOBILE INSURANCE POLICY
The League General policy provides an exclusion from coverage where the bodily injury was "caused intentionally by or at the direction of the insured." This is the same policy language involved in Alber, supra. However, as we have already noted, we conclude that under either the objective or the subjective test, the conviction of James and Carrie for voluntary manslaughter incontrovertibly proves that they each acted intentionally and intended the resulting injury.
Accordingly, we conclude that the trial court properly granted League General's motion for summary disposition. Russell, supra at 528.
Affirmed.