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American Family Mutual Insurance Co. v. Johnson9/16/1991
In American Family Mutual Insurance Co. v. Johnson, 796 P.2d 43 (Colo. App. 1990), the Colorado Court of Appeals held that a clause of a homeowner's liability insurance contract excluding injuries "intended or expected" from the general coverage provisions of the contract does not relieve an insurer from liability for damages resulting from an insured's infliction of injuries on a person mistaken for someone else. Having granted the request of petitioner American Family Mutual Insurance Company (American Family) for certiorari review of the Court of Appeals judgment, we reverse and remand with directions.
I
The basic factual circumstances underlying this dispute are not controverted. During the evening of August 21, 1984, Daniel Johnson, the insured (Johnson); his estranged wife, Christine Johnson; and Charlotte Maria Brown (Brown) were present at a bar. When Johnson saw a woman he assumed to be his wife leave the bar accompanied by one or more men, he followed them to the parking lot, approached her from behind, and kicked her. When the woman turned around, he discovered she was in fact Brown and apologized for his mistake. Brown subsequently filed a civil action against Johnson seeking damages for injuries resulting from the attack on claims of assault and battery and negligence. Brown also filed a civil action against the bar, and the two cases were consolidated for trial.
Prior to trial, Johnson filed a petition in bankruptcy in the United States Bankruptcy Court for the District of Colorado. Brown and Johnson then entered into a limited covenant wherein she agreed to dismiss her assault and battery claim and to seek satisfaction of any judgment she might obtain on her negligence claim from the proceeds of Johnson's American Family insurance policy.
At trial, the trial court entered a directed verdict in favor of Brown and against Johnson on the negligence claim. Issues of co-defendant liability and damages were submitted to the jury, which returned a verdict finding Johnson seventy-five percent negligent, finding the bar twenty-five percent negligent, and awarding damages in the amount of $120,000. Neither defendant appealed the verdict.
While Brown's personal injury action against Johnson was pending, American Family filed a declaratory judgment action seeking determination of its obligations under the contract of insurance. The contract provided general personal liability coverage of $100,000 per occurrence for bodily injury or property damage. The contract also contained an exclusion for bodily injury or property damage "expected or intended by any insured." In the declaratory judgment action, the trial court entered partial summary judgment in favor of American Family. The trial court applied the doctrine of transferred intent, Restatement (Second) of Torts ยง 20 (1965), to conclude that because Johnson expected and intended injury to his wife the injury to Brown was also expected and intended and therefore excluded from coverage.
On appeal, the Court of Appeals reversed. Concluding that the act of kicking Brown was not the probable and expected consequence of Johnson's intended act, the Court of Appeals determined that the exclusionary clause of the insurance contract was not applicable because Johnson acted with the intent to accomplish a certain result but instead accomplished a result that was improbable and unexpected.
II
American Family argues that the language of the exclusionary clause applies to Johnson's conduct in this case and prohibits coverage for the results of that conduct. Johnson contends that the language is inherently ambiguous and therefore should be construed
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