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Ohio Casualty Co. v. Clark8/18/1998
Filed 8/18/98 by Clerk of Supreme Court
Ohio Casualty Insurance Company, Plaintiff and Appellee v. Daniel Clark, insured, and Kelly Girodengo, a minor child, sole surviving child of George Girodengo, Deceased, by and through her Grandmother, and next Friend, Maria Entzel; and Maria Entzel, surviving Mother of George Girodengo, Deceased, Defendants and Appellants
Appeal from the District Court for Stark County, Southwest Judicial District, the Honorable Maurice R. Hunke, Judge.
AFFIRMED.
[ ] Daniel Clark, Kelly Girodengo, and Maria Entzel have appealed a judgment declaring Ohio Casualty Insurance Company has no duty to defend or indemnify Daniel Clark in a pending lawsuit for the wrongful death of George Girodengo. We conclude there are no genuine issues of material fact about Daniel Clark's intent in shooting George Girodengo. Daniel Clark's killing of George Girodengo was an intentional act for which insurance coverage was excluded, and the issue of self defense is res judicata. We affirm.
I.
[ ] "Early on January 17, 1996, Daniel Clark shot George Girodengo twice, after finding him in Clark's wife's bedroom. Girodengo died in surgery. Clark was charged with murder. On May 17, 1996, a jury returned a verdict finding Clark not guilty of murder, but guilty of manslaughter." State v. Clark, 1997 ND 199, 2, 570 N.W.2d 195. On appeal from his criminal conviction, Clark contended the trial court erred in instructing the jury on the lesser offense of manslaughter, arguing "' his was an intentional shooting. . . . Unless Clark had some right to intentionally pull the trigger, he was guilty of murder. . . . He was either excused by reason of self defense or he was not. . . . The evidence did not support giving an instruction of manslaughter.'" Id. at 10. In affirming the conviction, we said, " he fact a shooting was intentional does not preclude a verdict of manslaughter if the shooting resulted from an unreasonable belief in the necessity of using force" and concluded "the trial court did not err in instructing the jury on the offense of manslaughter." Id. at 11.
[ ] Maria Entzel, George Girodengo's mother, and Kelly Girodengo, his daughter, sued Daniel Clark and his wife, Peggy Clark. Against Daniel Clark, the complaint alleged: " n or about January 17, 1996, Daniel Clark carelessly and negligently discharged a firearm," resulting in George Girodengo's death. Against Peggy Clark, the complaint alleged: "On or about January 16 and 17, 1996, Peggy Clark invited George Girodengo into the Clark residence" and "Peggy Clark negligently misrepresented to George Girodengo the safety of his presence at the Clark residence."
[ ] While providing a defense, Ohio Casualty Insurance Company, which had issued a homeowner's insurance policy to Daniel Clark, brought an action against Daniel Clark, Kelly Girodengo, and Maria Entzel for " declaratory judgment stating that the acts of Daniel Clark are excluded from coverage under the Ohio Casualty policy, and therefore that Ohio Casualty owes no duty to defend or indemnify Daniel in connection with the Girodengo lawsuit." The policy contains the following coverage provision:
COVERAGE E - Personal Liability
If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, 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, even if the suit is groundless, false or fraudulent.
The policy co
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