COURT OF APPEALS DECISION DATED AND RELEASED November 20, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3337
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
KY T. RASMUSSEN,
Plaintiff-Appellant,
CHERRIE A. RASMUSSEN,
Plaintiff,
WINNEBAGO COUNTY,
Involuntary-Plaintiff,
v.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Defendant-Respondent,
GERALD C. OELERICH,
Defendant.
APPEAL from a judgment
of the circuit court for Winnebago County:
ROBERT A. HAWLEY, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Ky T. Rasmussen has appealed from a judgment
dismissing his complaint against American Family Mutual Insurance Company. The trial court granted summary
judgment after determining that the homeowner's and boat owner's insurance
policies issued by American Family to its insured, Gerald C. Oelerich,
provided no coverage for injuries caused to Rasmussen, a Winnebago County
sheriff's officer, when he was shot by Oelerich while attempting to effect an
arrest of Oelerich. We affirm the trial
court's judgment.
The homeowner's policy
issued by American Family to Oelerich defined an "occurrence" for
purposes of coverage as an "accident." It specifically excluded from coverage bodily injury "which
is expected or intended by any insured."
The boat owner's policy issued to Oelerich similarly excluded bodily
injury "which is expected, or intended or caused by an intentional act of
... an insured."
American Family argued
that the intent to injure which invokes the policy exclusion for injury
"expected or intended" by an insured could be inferred on the facts
of this case as a matter of law. The
trial court agreed and granted summary judgment.
Summary judgment may be
used to address issues regarding insurance policy coverage. Raby v. Moe, 153 Wis.2d 101,
109, 450 N.W.2d 452, 454 (1990). On
appeal, we apply the same methodology as the trial court and decide de novo
whether summary judgment was appropriate.
Coopman v. State Farm Fire & Casualty Co., 179 Wis.2d
548, 555, 508 N.W.2d 610, 612 (Ct. App. 1993).
A motion for summary judgment should be granted when the pleadings,
depositions, affidavits and other papers on file show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Raby,
153 Wis.2d at 109, 450 N.W.2d at 455.
Based on Raby
and the record in this case, we agree with the trial court that there is no
dispute as to any material fact and that American Family was entitled to
judgment dismissing it from the case.
In order for an exclusion for bodily injury "expected or
intended" by an insured to preclude insurance coverage in a given case,
two requirements must be met. Id.
at 110, 450 N.W.2d at 455. First, the
insured must intentionally act. Id. Second, the insured must intend some injury
or harm to follow from that act. Id.
Rasmussen contends that
intent to act cannot be found as a matter of law in this case because, in an
affidavit from Oelerich submitted in opposition to summary judgment, Oelerich
denied intending to shoot or injure Rasmussen.
He contends that the only relevant inquiry concerns Oelerich's intent at
the specific moment of the shooting, and that the events surrounding the
shooting and Oelerich's course of conduct on the night of the shooting cannot
be relied upon to determine his intent as a matter of law.
Based upon Raby,
we disagree. In Raby, the
Wisconsin Supreme Court concluded that an exclusion for injury "expected
or intended" by an insured barred coverage in an action for damages
arising from the shooting of a clerk during an armed robbery. Id. at 104-05, 450 N.W.2d at
453. The parents of the deceased clerk
brought an action against the driver of the getaway car, who waited outside
during the robbery, and his insurer. The
Supreme Court concluded that summary judgment should have been granted
dismissing the insurer, even though the matter had gone to trial and the jury
found that the driver neither expected nor intended that the clerk would be
injured during the robbery. Id.
In reaching this
conclusion, the court determined that the driver's intent to act was
established as a matter of law because it was undisputed that he had willingly
and actively assisted in the commission of the armed robbery by driving the
getaway car. Id. at
110-11, 450 N.W.2d at 455. It further
noted that the driver knew that one of his co-conspirators entered the store
with a loaded shotgun intending to point it at the clerk to successfully carry
out the robbery. Id. at
114, 450 N.W.2d at 457. It concluded
that some type of bodily injury was so substantially certain to occur during
the commission of an armed robbery that the law would infer an intent to injure
on the part of the insured, without regard to his claimed intent. Id. at 114-15, 450 N.W.2d at
457.
The undisputed facts in
the summary judgment record in this case indicate that Rasmussen was shot by
Oelerich during the course of a standoff with police, who had cordoned off
Oelerich's residence and were attempting to arrest him for the murder of his
wife. The record indicated that police
believed Oelerich was in his boat on Lake Winnebago, and that at one point
prior to the shooting of Rasmussen shots were fired from the lake in the
direction of the Oelerich residence. It
was also undisputed that, at approximately 4:00 a.m., Rasmussen observed
Oelerich's boat entering a channel adjacent to his property, told him twice to
raise his hands, heard him say "okay, okay," and then was shot in the
head with shotgun pellets from a gun fired by Oelerich. After shooting Rasmussen, Oelerich engaged
in an hours long standoff with police, during which he shot at a squad car.
Based on these
undisputed facts, we conclude that both intent to act and intent to injure must
be inferred as a matter of law.[1] Like the driver's willing and active
participation in an armed robbery, Oelerich's actions in evading and then
resisting arrest, and picking up or brandishing a loaded shotgun rather than
acquiescing in Rasmussen's order to put up his hands, mandate a conclusion that
he was acting intentionally. Cf. id.
at 110-11, 450 N.W.2d at 455. Because
the risk of injury or death inherent in his conduct was so substantial, intent
to injure on his part must also be inferred as a matter of law, without regard
to his actual claimed intent. See
id. at 114-15, 450 N.W.2d at 457.
The trial court
therefore properly concluded that the exclusions under the American Family
policies prohibited coverage. Based on
this disposition, we need not address the remaining arguments raised by
Rasmussen.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] In making this determination, we have not relied upon Oelerich's criminal conviction following a jury trial of the attempted first degree intentional homicide of Rasmussen. We therefore need not address Rasmussen's argument that principles of issue preclusion (formerly called collateral estoppel) do not bar him from litigating issues decided in the criminal trial.