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American Family Mutual Insurance Co. v. White3/20/2003
AFFIRMED
To stop Appellant from assaulting a smaller third person, Travis Wilde hit Appellant in the head with a metal pipe. Travis later pleaded guilty to aggravated assault, and Appellant later sued Travis and his parents ("the Wildes"). The Wildes' insurance carrier, Appellee ("American Family"), then filed this declaratory judgment action and moved for summary judgment, arguing that coverage for Appellant's claims was barred by the "violation of law" exclusion in the Wildes' homeowner's policy. The trial court granted summary judgment to American Family. We affirm.
I.
The grand jury indicted seventeen-year-old Travis Wilde on two counts of aggravated assault. The State prosecuted him as an adult. Count I alleged that Travis "intentionally, knowingly or recklessly caused physical injury to Bryan White, using a deadly weapon or dangerous instrument, to-wit: metal pipe, in violation of A.R.S. §§ 13-1204(A)(2), 13-1203(A)(1), 13-701, 13-702, 13-801 and 13-604." Prison is mandatory on conviction of this class three dangerous felony; the presumptive term is 7.5 years. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-604(I) (2001), -1204(B) (Supp. 2002); see also State v. Burge, 167 Ariz. 25, 28, 804 P.2d 754, 757 (1990). Count II alleged that Travis "intentionally, knowingly or recklessly caused physical injury to Bryan White, using any means of force which caused temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part, or a fracture of any body part, in violation of A.R.S. §§ 13-1204(A)(11), (B), 13-1203, 13-701, 13-702 and 13-801." Because the State apparently did not allege that Count II was a "dangerous offense" pursuant to A. R. S. § 13-604, it appears that prison was not mandatory on conviction of this class four felony.
To avoid the mandatory prison term that would result if he went to trial and the jury rejected his claims of self defense and defense of others and found him guilty as charged on Count I, Travis accepted the State's offer to plead guilty to Count II as a "reckless" aggravated assault, a nondangerous offense for which probation was both possible and recommended by the State. During the change of plea proceeding, when the trial court asked what he had done to commit an aggravated assault, Travis said, "I hit Mr. White with a pipe to the head." The court then asked, "Did you understand, in striking Mr. White, that there was a significant risk that he could suffer a number of damages by you striking him with that pipe?" Travis responded, "Yes, sir." The trial court accepted the guilty plea and dismissed Count I. At sentencing, Travis received probation and a jail term.
Appellant's personal injury action alleged that his injuries were caused by the negligence of Travis, that this negligence should be imputed to the Wildes under A.R.S. § 12-661 (Supp. 2002), and that the Wildes negligently supervised Travis.
American Family's declaratory judgment action was based on the following exclusion in the Wildes' homeowner's policy: "Violation of Law. We will not cover bodily injury or property damage arising out of . . . violation of any criminal law for which any insured is convicted . . . ." (Boldface omitted infra.) In opposition, Appellant argued that the exclusion applied only to intentional acts, and that Travis acted recklessly rather than intentionally. Appellant also argued that the exclusion was contrary to public policy, unconscionable, and contrary to an insured's reasonable expectations. On the negligent supervision claim, Appellant argued that the exclusion was inapplicable because the Wildes were not convicted of violating any criminal law. The trial cour
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