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Western Agricultural Insurance Co. v. Brown11/10/1998
DEPARTMENT D
Appeal from the Superior Court in Mohave County
Cause No. 95-CV-404
The Honorable Leonard C. Langford, Judge
AFFIRMED
Dr. Michael Kogianes shot his wife and her companion a total of nine times, and he said to the dying companion, "This is the last marriage you'll ever break up." Kogianes was convicted of two counts of premeditated first degree murder by a jury that rejected his insanity defense. Kogianes and the victims' survivors then sought insurance coverage from Western Agricultural Insurance Co. ("Western"), which insured Kogianes for liability from bodily injury . Western filed this action, seeking a declaration that its insurance policy did not cover Kogianes for these two murders. The trial court granted summary judgment to Western, and we affirm.
I.
Kogianes's policy with Western provided primary liability coverage of $300,000 for each person and occurrence; an umbrella rider provided another $1 million in coverage. The policy required Western to defend a claim or suit against Kogianes for bodily injury or property damage caused by an "occurrence," and to pay up to policy limits all damages for which he was legally liable. The policy defined "occurrence" as "an unexpected and unintended event . . . which results in bodily injury or property damage during the policy period." The umbrella defined "occurrence" as "an accident . . . during the policy term, which results in personal injury or property damage neither expected nor intended by [the insured]."
The policy excluded coverage for bodily injury or property damage that "is intentionally caused by any insured" or " ris out of a violation of a criminal law, except traffic violations, if committed by any insured." The umbrella excluded coverage for injury or damage "arising out of an intentional act committed by or at [the insured's] direction."
In granting summary judgment to Western, the trial court found "that A.R.S. 13-807 would preclude Dr. Kogianes from any sort of recovery against the Plaintiff and based upon the `standing in the shoes' argument, the other Defendants have no greater right against the Plaintiff than Dr. Kogianes would have . . . ." Kogianes did not appeal, but the victims' survivors ("Appellants") did. We have jurisdiction under Arizona Revised Statutes Annotated ("A.R.S.") section 12-2101(B) (1994).
II.
The question is whether, as a matter of law, the intentional acts exclusion applies to these murders. We review this question of law de novo. See State ex rel. Miller v. Superior Ct. (Stephens), 189 Ariz. 228, 230, 941 P.2d 240, 242 (App. 1997).
An intentional acts exclusion is based on the principle that insurance is intended to protect against risk that is beyond the control of the insured. See Transamerica Ins. Group v. Meere, 143 Ariz. 351, 355-56, 694 P.2d 181, 185-86 (1984). The inten- tional acts exclusion also "articulates a public policy which forbids contracts indemnifying a person against loss resulting from his own wilful wrongdoing." Id. at 356, 694 P.2d at 186.
Although intentional acts do not trigger the exclusion unless harm is intended, see Republic Ins. Co. v. Feidler, 178 Ariz. 528, 531, 875 P.2d 187, 190 (App. 1994), where an "act was intentional and there was either a subjective desire to cause some specific harm (intent) or substantial certainty (expectation) some significant harm would occur, the insured will not be heard to say that the exclusion does not apply because the injury was more severe or different from what was intended." Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184, 191, 939 P.2d 1337, 1344
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