 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Allstate Insurance Co. v. Dempsey11/22/2005
UNPUBLISHED
Before: Fort Hood, P.J., and White and O'Connell, JJ.
In this declaratory action, plaintiff appeals as of right the circuit court's order denying its motion for summary disposition and granting summary disposition to defendants. We affirm the circuit court's denial of plaintiff's motion for summary disposition, vacate the grant of summary disposition to defendants, and remand for further proceedings.
While at a friend's party, and after exchanging words, defendant Jacob Dempsey struck Joseph Harris just above his left eye. Dempsey maintained that he thought Harris was about to strike him, and that he threw the punch defensively to prevent being struck. Harris fell and hit the back of his head on the ground. He died the following day. Defendant Deborah Harris, personal representative of Joseph Harris' estate, brought the tort suit underlying this action against Dempsey (and others).
At pertinent times, Dempsey was insured under a homeowner's insurance policy plaintiff issued. Plaintiff provided a defense to Dempsey in the tort litigation under a reservation of rights. Plaintiff then filed the instant declaratory judgment action and filed a motion for summary disposition, asserting that there was no "occurrence" under the policy, and that the intentional acts exclusion barred coverage. The circuit court denied plaintiff's motion and granted defendants summary disposition, concluding that under Allstate Ins Co v McCarn (McCarn I), 466 Mich 277; 645 NW2d 20 (2002), a question of fact remained whether Dempsey's striking of Joseph Harris was an accident. This appeal ensued.
I.
We review the circuit court's denial of plaintiff's motion for summary disposition de novo. West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). "Issues involving the proper interpretation of insurance contracts are reviewed de novo." Allstate Ins Co v McCarn (After Remand) (McCarn II), 471 Mich 283, 288; 683 NW2d 656 (2004). "An insurance policy must be enforced in accordance with its terms." McCarn I, supra, 466 Mich at 280. The policy's terms are given their commonly used meanings unless clearly defined in the policy. Twichel v MIC General Ins Corp, 469 Mich 524, 534; 676 NW2d 616 (2004). Determination of the scope of coverage is a separate inquiry than whether coverage is negated by an exclusion. Heniser v Frankenmuth Mutual Ins, 449 Mich 155, 172; 534 NW2d 502 (1995). Exclusions are strictly construed in favor of the insured. McKusick v Travelers Indemnity Co, 246 Mich App 329, 333; 632 NW2d 525 (2001).
A.
The homeowners' policy at issue provides:
Losses We Cover Under Coverage X:
Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.
The policy defines "occurrence" as:
an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage.
The term "accident" is not defined in the policy.
The intentional acts exclusion in the policy states:
Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:
a) such insured person lacks the mental
Page 1 2 3 4 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|