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Allstate Insurance Company v. McCarn6/11/2002
pull the trigger of an unloaded gun." Slip op at 16 (emphasis added). However, what Robert's reasonable expectations should have been, not what his actual subjective beliefs may or may not have been, are the focus of the Masters standard.
The majority erroneously maintains that the test we articulated in Masters and Nabozny is a subjective one. However, the majority fails to explain our objective application of the test in both cases. In addition, the term "reasonably" has consistently been construed as indicating an objective rather than a subjective standard. In Allstate Ins Co v Freeman, 432 Mich 656; 443 NW2d 734 (1989), six justices, including the author of the current majority opinion, agreed that "'reasonably be expected' is unambiguous" and "requires application of an objective standard of expectation." 432 Mich 688. In Fire Ins Exchange v Diehl, 450 Mich 678, 685; 545 NW2d 602 (1996), the Court held that injury "'neither expected nor intended by the insured'" required a subjective standard of expectation where the policy language did "not employ the term 'reasonably.'" (Emphasis added.) The majority simply refuses to acknowledge that the test adopted in Masters and Nabozny utilizes the same language that has been construed by this Court as requiring an objective standard of inquiry.
Without offering any rationale for doing so, the majority makes the insured's subjective belief regarding the status of the gun definitive, as though no contrary conclusion were possible. The issue is whether, in intentionally creating a direct risk of harm--pulling the trigger of a shotgun without ascertaining if it was loaded--the insured should have reasonably expected the consequences. Given that the applicable standard is objective, the insured's subjective belief is not controlling.
Inexplicably, under the standard adopted by the majority, neither the holding nor the outcome in Masters or Nabozny could be sustained today.
III. APPLICATION OF MASTERS AND NABOZNY
In the present case, it is uncontested that Robert McCarn intentionally aimed the weapon at the victim, engaged the hammer, and pulled the trigger. Because he denied intending the actual injury , the event is an "occurrence" only if he should not have reasonably expected the consequences in light of the direct risk of harm intentionally created.
The scope of the direct risk of harm created by an insured's act is necessarily dependent upon the nature of the intentional act and the facts and circumstances surrounding the event. The direct risk of harm created by intentionally throwing knives, for example, is far greater than the direct risk of harm created by intentionally throwing cotton balls. In each instance, the natural result of the voluntary act must be considered. See 9 Couch, Insurance, 3d, ยง 126:27, p 126-53.
What is the direct risk of harm consonant with pulling the trigger of a firearm? The obvious risk is that the weapon, if loaded, might discharge and cause an injury . In my view, the evidence adduced at the summary disposition stage warrants the conclusion that the insured should have reasonably expected the consequences of his intentional act.
In his deposition testimony, McCarn testified that he consumed marijuana before taking the weapon out of storage. He also testified that he believed that the gun was unloaded and that he was "just playing" when he pulled the trigger of the weapon. However, he later admitted that he intended to frighten LaBelle into parting with crackers.
In addition, McCarn admitted that he did not check the status of the gun before pulling the trigger. He also testified that the last time he used the gun, he p
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