No Summary Judgement When Claims of Self-Defense are Questions for Jury
In a case where an altercation between neighbors resulted in injury to one and the death of another resulted in a wrongful death suit and a declaratory relief action to show no coverage for intentional acts. When one claims an unprovoked attack with a knife and the other claims self-defense (an exception to the intentional act exclusion) summary judgment should be impossible before a trier of fact determines which story it believes.
In Brandon S. Wise v. George O’Neil, et al, 20-3, State Of Louisiana Court Of Appeal, Third Circuit (June 17, 2020) the Louisiana Court of Appeal was asked to reverse a decision to grant summary judgment to an insurer applying the intentional acts exclusion.
Brandon Wise (Brandon) moved into a home next door to George O’Neil (George) and his wife, Antoinette O’Neil (Antoinette) in Mermentau, Louisiana several years ago. Brandon’s son, Drey Wise (Drey), his nephew, Trevor Goodwin (Trevor), and other visitors repeatedly caused friction with George and Antoinette. George called law enforcement several times, but the behavior persisted.
George claims he appealed to Brandon to speak with his son and nephew because he believed they would listen to him. He asserts Brandon’s response to that request was just “f**k you.” After George proceeded to dial 911 Trevor physically attacked George. Drey and Brandon joined in the fray. The three continued to “beat” him, “kick” him, “stomp” him, rip gold chains off his neck and punch him. They attacked him, and while he was on the ground, holding onto the knife, being beaten by the three men, Drey was stabbed three times. He was taken to the hospital but died from his wounds.
Brandon alleges a different version of the events in his petition for damages. Based on statements to law enforcement made by Brandon, George was arrested. A grand jury returned a no true bill and George was not charged with any offense.
Brandon sued George and Antoinette for damages resulting from the death of his son, Drey. The O’Neils answered the suit and filed a reconventional demand against Brandon, his son’s estate, and a third-party demand against Trevor. George claimed he suffered injuries in the attack by Brandon, Drey, and Trevor and that he acted in self-defense.
Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau), the O’Neils’ insurer, filed a motion for summary judgment alleging it is not required to defend the O’Neils and it has no liability under its insurance policy for George’s intentional acts under the policy’s exclusions of coverage. The trial court granted Farm Bureau’s motion and dismissed the case against it with prejudice.
Farm Bureau contends that it does not matter which version of the event is closer to the truth for the policy exclusion to apply and asserted: “There is no dispute that George O’Neil intentionally pulled the knife from his pocket, released the blade, ‘brandished’ the knife and made a ‘thrust motion.'”
Farm Bureau, and the trial court, believed that, when George pulled the knife from his pocket and pressed the button opening the blade, this intentional act alone precludes coverage under the “intentional acts” policy exclusion regardless of the result and regardless of whether stabbing Drey was intentional, accidental, unintended, negligent, or unavoidable.
George, however, maintains the policy does not exclude coverage when an insured is forced to act in self-defense and the results of such unintentional and uncontrollable actions in the heat of defending a vicious attack on his person cannot be termed “intentional acts.”
George and Brandon disagree about the factual basis of this event and George’s actions. Indeed, there are several critical facts in dispute concerning the events which resulted in Drey’s untimely death. These disparities cannot be resolved without credibility determinations which are not appropriate for summary judgment. The fact that a grand jury did not charge George with any criminal offense is telling.
Summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. The issue of subjective intent is fact-intensive and is an issue to be determined by the totality of the circumstances examined on a case-by-case basis.
Farm Bureau’s application of the exclusionary language relies on its contention that George’s action in removing the knife from his pocket is an intentional act which alone ipso facto excludes coverage. This proposition turns logic on its head.
The subjective intent of the insured is the critical issue in determining whether an intentional acts exclusion applies. Further, this subjective intent is a factual determination that is the particular province of the trier of fact. The concept of intent requires a thought process, resulting in the resolution to commit a particular act. In the instant case the court recognized that the instinct of self-preservation is primordial.
The court concluded that there are genuine issues of material fact that preclude summary judgment. George claims he, too, simply reacted to a situation without time to consider the consequences of his reaction, and that Drey being stabbed was not intentional. Brandon disputes this claim. Neither the trial court, nor an appellate court, can resolve this pivotal factual dispute on summary judgment. A civil jury convened in this case might well judge his conduct was not intentional and done in self-defense.
The purpose of the intentional injury exclusion is to restrict liability insurance coverage by denying coverage to an insured in circumstances where the insured acts deliberately and intends or expects bodily injury to another. The subjective intent of the insured is the critical issue in determining whether an intentional acts exclusion applies.
The trial court judgment erroneously granted summary judgment to Farm Bureau and was reversed and remanded by the Court of Appeal to the trial court for further proceedings.
To paraphrase John Adams, facts are difficult things. The intentional act exclusion applies to refuse coverage for intentional acts unless those acts are performed in self-defense. Since the facts recited by the insured are a clear description of an act of self-defense and the plaintiffs’ recitation are the opposite, it could not be said as a matter of law that the exclusion applied or did not apply. Factual findings, with the trier of fact viewing the demeanor of the witnesses while they testify subject to cross-examination will establish whether George was a victim of a vicious assault and acted in self-defense or was an aggressor who violently stabbed and killed the plaintiff’s son. What they find will determine coverage and Farm Bureau must defend George up to a determination of the facts.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts
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