Opinion
Docket No. 127022.
Decided August 23, 1990. Leave to appeal applied for.
Garan, Lucow, Miller, Seward, Cooper Becker, P.C. (by James L. Borin and Rosalind Rochkind), for plaintiff.
Richard A. Lenter, P.C. (by Richard A. Lenter), for Judith Miller and Mary Rita Bylski.
Silver, Roth Silver, P.C. (by Stephen C. Albery), for Sandra Silver.
Before: WEAVER, P.J., and MAHER and CYNAR, JJ.
On remand from our Supreme Court, we have been asked to reconsider our opinion in Allstate Ins Co v Miller, 175 Mich. App. 515; 438 N.W.2d 638 (1989), in light of our Supreme Court's recent decision in Allstate Ins Co v Freeman, 432 Mich. 656; 443 N.W.2d 734 (1989). On reconsideration, we affirm our original decision reversing the judgment of the trial court.
Pursuant to Court policy, Judge CYNAR has been substituted for visiting Circuit Judge C.W. Simon, Jr., who sat as a member of the original panel in this matter by assignment.
At issue in this case is the following exclusionary clause contained in a homeowner's insurance policy issued by plaintiff to defendant Sandra Silver's decedent:
We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.
In Freeman, supra, our Supreme Court examined an identical clause and agreed that a two-part test must be applied in determining whether an insurer may obviate its duty to defend or indemnify under the exclusion. Pursuant to this clause, coverage will be excluded when (1) the insured acted either intentionally or criminally, and (2) the resulting injury was either reasonably expected or actually intended to result from such intentional or criminal conduct. See Freeman, p 685. As we noted in our original decision, this exclusionary clause requires the presence of two different mind states: the intention to act and the intention to cause injury (either an actual injury or one that is reasonably expected). Miller, supra, p 520. Freeman was primarily concerned with that part of the exclusion dealing with the intent to cause injury, particularly the criteria for evaluating when an injury is reasonably expected. The Court held that an injury is reasonably expected where it is the natural, foreseeable, expected, and anticipated result of the intentional or criminal conduct. Freeman, supra, pp 687-688. Further, the Court held that whether an injury could "reasonably be expected" required application of an objective, as opposed to a subjective, standard of expectation. Id., p 688.
In deciding Miller, however, we did not focus on the portion of the exclusion dealing with the intent to cause injury as did the Court in Freeman. Rather, our focus was on the insured's intent to act in the first instance. In this regard, we noted that insanity may preclude a person from forming a certain specific intent and, therefore, we agreed with those decisions from other states holding that when a person cannot form an intent to act because of insanity he or she has not acted intentionally as that term is used in insurance policies, unless the policy explicitly states otherwise. Miller, supra, pp 521-522. The issue of insanity, and whether it precludes a person from acting intentionally or criminally within the insurance law context, was not discussed in Freeman. Thus, we conclude that Freeman does not change our original decision.
Accordingly, we again conclude that the presence of expert testimony to the effect that plaintiff's insured was either not aware of what he was doing or was unable to control his actions when he embarked on a killing spree established a genuine issue of material fact as to whether the plaintiff's insured acted intentionally. Therefore, summary disposition was improper.
Reversed.