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American Family Mutual Insurance Co. v. Johnson3/22/1990
(insured victim shot by an officer intending to shoot suspected robber); Utter v. Travelers Insurance Co., 65 Mich. 545, 32 N.W. 812 (1887) (insured victim shot by an officer thinking victim was someone else), and intentional acts which resulted in expected bodily harm albeit to innocent bystanders, where the exclusion was held applicable. See Curtain v. Aldrich, 589 S.W.2d 61 (Mo. App. 1979) (where insured assaulted brother-in-law in the mistaken belief that his brother-in-law was a burglar, exclusion was inapplicable because the act was a product of mistaken identity. Court distinguished, as an example, case in which insured deliberately rams car into another occupied car).
The reasoning here is that the former circumstances involve acts in which the specific results are not the expected or probable consequences of the intended acts whereas the latter type of cases involved acts in which the results are both probable and expected. Compare Mah See v. North American Accident Insurance Co., 190 Cal. 421, 213 P. 42 (1923) and Newsome v. Travelers Insurance Co., 143 Ga. 785, 85 S.E. 1035 (1915) with Subscribers at Auto Club Inter-Insurance Exchange v. Kennison, 549 S.W.2d 587 (Mo. App. 1977) and Kraus v. Allstate Insurance Co., 379 F.2d 443 (3rd Cir. 1967).
Here, the act of kicking Brown was not the probable and expected consequence of Johnson's intended act -- to kick and injure his wife. Johnson acted with the intent to accomplish a certain result, but accomplished instead a result that was improbable and unexpected. Thus, Johnson did not commit "bodily injury expected or intended," and the exclusion does not apply.
Finally, we note also that this interpretation comports with the policy of construing insurance policies in favor of the insured when there is uncertainty as to coverage. See Republic Insurance Co. v. Jernigan, 753 P.2d 229 (Colo. 1988).
Because of our resolution of this issue, we do not reach Brown's other contention of error.
The judgment is reversed and the cause is remanded for entry of judgment in favor of Brown and directing American Family Mutual Insurance Company to provide coverage for the judgment entered in the tort action.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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