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Safeco Insurance Co. v. McGrath7/29/1991
Thomas McGrath and Frederick Hayes were involved in an altercation in a restaurant parking lot in the early morning hours on February 12, 1980. McGrath and Hayes argued in the restaurant bar, confronted each other again outside, and McGrath shot Hayes in the neck.
McGrath claims that Hayes approached him in a menacing fashion and he acted in self-defense. He also claims at various times that (1) he did not intend to injure Hayes, but
only prevent Hayes's advance, and (2) he was not aiming at Hayes, but in that general direction.
McGrath was charged with two counts of second degree assault with a firearm. McGrath entered a plea of guilty to one count of second degree assault in exchange for dismissal of the other charges. Hayes and Frounfelter then filed a complaint against McGrath alleging he negligently caused them damages. The jury found McGrath was negligent and awarded Hayes $1.3 million.
McGrath's insurers, Safeco Insurance Company and Lumbermen's Mutual Casualty Company (Lumbermen), brought a declaratory judgment action, claiming McGrath's conduct was intentional and excluded from coverage. McGrath counterclaimed for bad faith for failure to defend and failure to act in good faith. The court granted summary judgment in favor of the insurers and dismissed McGrath's counterclaim. McGrath subsequently assigned his rights to Hayes and Frounfelter. Hayes and Frounfelter appeal the summary judgments. We reverse and remand.
Exclusion Language
[1, 2] The pertinent portions of Lumbermen's policy read as follows:
The company agrees to pay on behalf of the insured the ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay as damages because of personal injury or property damage.
This policy does not apply:
(f) to any act committed by or at the direction of the insured with intent to cause personal injury or property damage;
For the exclusion under such policies to apply, the insured must intend both the physical act, here pulling the trigger, and the resulting injury, here wounding Hayes. The subjective intent of the insured is controlling in interpreting such clauses. Exclusionary language is construed against the insurer and in favor of coverage.
These rules are not seriously challenged. Rather, Lumbermen asserts: (1) on these facts the law will impute to McGrath the intent to harm regardless of his subjective intent, citing Rodriguez v. Williams ; and (2) that McGrath's testimony establishes as a fact McGrath's subjective intent to injure. We disagree.
In Rodriguez the court held as a matter of law that where the insured admitted he intended to commit incest, his intent to injure the victim was established irrespective of his claim that he did not intend to injure. In New York Underwriters Ins. Co. v. Doty, this court extended the imputation of intent to include not only sexual assaults but physical assaults. The rationale of these cases is that where the act is indissolubly bound with the injury, the law imputes the intent to injure to the insured, and the exclusion applies. McGrath's shooting in the direction of Hayes in and of itself does not establish intent to injure because under
these circumstances there could be an intent merely to warn or to intimidate. Accordingly, the Rodriguez line of cases is inapplicable to the facts here present. Lumbermen's reliance on Grange Ins. Co. v. Brosseau is misplaced. The distinguishing feature of Brosseau is that the court found "Brosseau's own words confirm he deliberately fired the shotgun at Anderson. The fact that he claims to
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