PUBLISHED OPINION
Case No.: 95-3620
Complete
Title
of
Case:RICHARD
SCHWERSENSKA,
Plaintiff-Appellant,
v.
AMERICAN FAMILY MUTUAL INSURANCE
COMPANY,
TRAVIS J. MENGE, AND MICHAEL NEITZKE,
Defendants-Respondents.
Submitted
on Briefs: October 11, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: November 21, 1996
Opinion
Filed: November
21, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Waushara
(If
"Special" JUDGE: Lewis
Murach
so
indicate)
JUDGES: Dykman, P.J., Vergeront and Deininger, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the briefs of Gordon S. Johnson, Jr. of
Berlin.
Respondent
ATTORNEYSFor the defendant-respondent the
cause was submitted on the brief of Russell W. Wilson and Matthew E.
Yde of Ruder, Ware & Michler, S.C., of Wausau.
COURT OF
APPEALS DECISION DATED AND
RELEASED November
21, 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. 95-3620
STATE OF WISCONSIN IN
COURT OF APPEALS
RICHARD
SCHWERSENSKA,
Plaintiff-Appellant,
v.
AMERICAN
FAMILY MUTUAL INSURANCE COMPANY,
TRAVIS
J. MENGE, AND MICHAEL NEITZKE,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Waushara County: LEWIS
MURACH, Judge. Affirmed.
Before
Dykman, P.J., Vergeront and Deininger, JJ.
DYKMAN,
P.J. On March 6, 1994, Travis Menge,
while a passenger in Michael Neitzke's car, shot Richard Schwersenska in the
left arm. Schwersenska was driving a
pickup truck following Neitzke's car.
Schwersenska filed suit against Menge, Neitzke and American Family
Mutual Insurance Company, which had issued a homeowners policy to Neitzke's
parents. The policy covered
Neitzke. American Family moved for
summary judgment, arguing that its homeowners policy specifically excluded
coverage for the claims alleged against Neitzke. The trial court granted American Family's motion because the
policy excluded coverage for bodily injury or property damage "which is
expected or intended by any insured."
Schwersenska appeals, arguing that summary judgment is not appropriate
because a jury, not the court, should determine whether Neitzke intended to
cause bodily injury. We conclude that
Neitzke's intent to injure can be inferred from his conduct as a matter of
law. We therefore affirm.[1]
BACKGROUND
On
Friday, March 4, 1994, Neitzke, then twenty-two years old, was struck on the
side of the face with a snowball at the car wash in Berlin, Wisconsin. Neitzke confronted the individual who threw
the snowball and grabbed him by the shirt.
Menge, who was also twenty-two years old and had been friends with
Neitzke for about ten years, pushed the person away, and Neitzke and Menge
left.
On
Saturday, March 5, Neitzke and Menge drove into Berlin at around 6:30 or 7:00
p.m. in Neitzke's car. They took a
quarter barrel of beer with them and planned to pick up some people and return
to Menge's house to have a party. While
meeting with some people that Menge knew at the car wash, Neitzke and Menge
were confronted about the prior evening by a person who alleged that they
struck the person who threw the snowball.
Neitzke and Menge moved across the parking lot, and their accuser
left.
Neitzke
and Menge drove to Hardees. A car
pulled into the parking lot and Menge, apparently recognizing the people in the
car, told Neitzke that they should leave.
They did, and as they drove past the car wash, people started yelling
and throwing plastic soda bottles and snowballs at them. A vehicle pulled out and followed their
car. After driving about three miles,
Neitzke lost the pursuing vehicle.
Neitzke
and Menge drove into town a second time.
They again drove past the car wash, and again people yelled and threw
things at them. This time, two vehicles
chased Neitzke's car, but Neitzke outraced them.
At
around 11:00 p.m., Neitzke and Menge returned to Menge's house, which was five
or six miles away, so that Menge could get his semi-automatic deer rifle. Menge told Neitzke that he wanted to use the
rifle to scare their adversaries. Menge
took the rifle and about fifteen to twenty rounds of ammunition from his house,
and they again departed.
Neitzke
and Menge returned to Berlin to confront the people at the car wash and find
out why they were upset with them. On
the ride back, Menge loaded the rifle's magazine with ammunition. They reached town about midnight, and the
people at the car wash again started yelling and throwing things. One person chased them with a tire iron, and
four cars followed.
As
Neitzke drove out of town, he noticed a pursuing vehicle seventy-five yards
away. Neitzke gained some distance from
the closest vehicle, but could still see its headlights through the fog. Menge loaded the magazine into the rifle,
sat on the passenger-side door with his body outside the car, and fired four
shots in quick succession at the pursuing vehicle, striking its driver, Richard
Schwersenska, in the arm.
Schwersenska
brought suit against Menge, Neitzke, and American Family Mutual Insurance
Company, which provided liability insurance coverage for Neitzke pursuant to a
homeowners policy issued to Neitzke's father.
American Family moved for summary judgment, arguing that its homeowners
policy specifically excluded coverage for the claims alleged against Neitzke
because the policy in question excluded coverage for bodily injury or property
damage "which is expected or intended by any insured." The trial court granted American Family's
motion, and Schwersenska appeals.
DISCUSSION
Schwersenska
argues that the trial court erred by granting summary judgment because an issue
of material fact existed as to whether Neitzke's act was intentional so as to
fall under the exemption of the homeowner's insurance policy. Summary judgment may be utilized to address
insurance policy coverage issues. Raby
v. Moe, 153 Wis.2d 101, 109, 450 N.W.2d 452, 454 (1990). We have described summary judgment
methodology many times. See State
Bank v. Elsen, 128 Wis.2d 508, 511-12, 383 N.W.2d 916, 917-18 (Ct. App.
1986). We need not repeat it here.
In
Loveridge v. Chartier, 161 Wis.2d 150, 168, 468 N.W.2d 146, 150
(1991), the court summarized how Wisconsin courts construe intentional acts
exclusions in insurance policies:
In Wisconsin, an
intentional-acts exclusion precludes insurance coverage only where the insured
acts intentionally and intends some harm or injury to follow from the act. An insured intends to injure or harm another
if he "intend[s] the consequences of his act, or believe[s] that they are
substantially certain to follow."
In other words, intent may be actual (a subjective standard) or inferred
by the nature of the insured's intentional act (an objective standard). Therefore, an intentional-acts exclusion
precludes insurance coverage where an intentional act is substantially certain
to produce injury even if the insured asserts, honestly or dishonestly, that he
did not intend any harm.
(Citations omitted.)
In
his deposition, Neitzke testified that at no time did he expect that Menge was
going to shoot the gun. Because no
evidence has been offered to establish that Neitzke actually intended to cause
harm or injury, his intent cannot be established under a subjective
standard. Therefore, we must determine
whether Neitzke's intent can be established under an objective standard as a
matter of law.
Ordinarily,
the question of whether an insured intended harm or injury to result from an
intentional act is a question of fact. Raby,
153 Wis.2d at 112, 450 N.W.2d at 456.
However, we may infer that an insured intended to injure or harm as a
matter of law "if the degree of certainty that the conduct will cause
injury is sufficiently great to justify inferring intent to injure as a matter
of law." K.A.G. v. Stanford,
148 Wis.2d 158, 163, 434 N.W.2d 790, 792 (Ct. App. 1988). When determining whether intent can be
inferred as a matter of law, each set of facts "must be considered on a
case-by-case basis; the more likely harm is to result from certain intentional
conduct, the more likely intent to harm may be inferred as a matter of
law." Id. at 165,
434 N.W.2d at 793.
In
Raby v. Moe, 153 Wis.2d 101, 450 N.W.2d 452 (1990), the court
faced a situation similar to the one we face here. Jeff Thompson asked Terrance Moe to assist him in robbing a
liquor store, and Moe agreed to drive the getaway car. Id. at 105-06, 450 N.W.2d at
453. Moe drove Thompson to the liquor
store and waited in the car while Thompson entered the store with a loaded
shotgun, took money from the cash register, and shot and killed Steven Raby,
the store clerk. Id. at
106, 450 N.W.2d at 453. Moe pleaded
guilty to second-degree murder, party to a crime, under §§ 940.02(2) and
939.05, Stats., 1985-86. Id.
Raby's
parents commenced a civil action against Moe and Heritage Mutual Insurance
Company, which provided Moe's homeowners insurance. Id. at 104, 450 N.W.2d at 453. Heritage moved for summary judgment, arguing
that its policy did not cover damages resulting from Raby's death because the
policy excluded coverage for injury "expected or intended" by the
insured. Id.
The
supreme court stated that the rule which permits a court to infer an intent to
injure in limited circumstances "is applicable whenever the criminal
conduct of the insured is of such a dangerous character as to impose a
substantial threat to the well-being and safety of innocent victims caught in
the midst of that criminal conduct."
Id. at 113, 450 N.W.2d at 456. The court concluded:
In the instant case, Thompson [and] Moe ... conspired to
commit an armed robbery and agreed that that robbery would be carried out with
a loaded 12-gauge shotgun. On these
facts, we do not think that it can reasonably be said that the death of Steven
Raby occurred merely by accident. Moe
must be held to know the substantial risk of injury inherent in his criminal
wrongdoing and cannot expect his homeowners insurer to provide coverage for
damages resulting from that wrongdoing simply by saying, after the fact, that
he did not intend for any harm to result.
Id.
Likewise,
Neitzke and Menge conspired to scare their adversaries at the car wash with a
semi-automatic deer rifle. Neitzke saw
Menge take the shells and gun from his house.
Neitzke saw Menge load the shells into the magazine. Neitzke heard the bolt go forward,
chambering a round. And Neitzke saw
Menge climb out of the car and position himself so that he could look back
toward the pursuing car.[2] Yet Neitzke did nothing to stop Menge from
firing four rounds at the following vehicle.
Like Moe, Neitzke must be held to know the substantial risk of injury
inherent in taking Menge to confront a seemingly angry mob with a
semi-automatic deer rifle and fifteen to twenty rounds of ammunition. We infer that Neitzke intended to cause
Schwersenska's injuries as a matter of law.
Schwersenska
argues that this case is distinguishable from Raby because Menge
abandoned the plan to use the rifle to scare the people at the car wash, while
Thompson and Moe never abandoned their plan of armed robbery. The facts set
forth in the court of appeals opinion of Raby v. Moe, 149 Wis.2d
370, 381, 441 N.W.2d 263, 266 (Ct. App. 1989), rev'd, 153 Wis.2d 101,
450 N.W.2d 452 (1990), however, indicate that Moe's plan also was not followed:
Moe testified that, while he thought Thompson might use
the gun to attempt to scare the store clerk, it was not "any part of the
plan for the armed robbery that anybody should shoot [Raby]." According to Moe, when he and the others
planned the robbery, no one expressed any intention to shoot the clerk, and he
stated unequivocally that he neither intended nor expected that any shooting
would occur, or that the clerk would suffer any harm.
What is important, then, is not whether the original
plan was continued, but whether "the degree of certainty that the conduct
will cause injury is sufficiently great to justify inferring intent to injure
as a matter of law." K.A.G.,
148 Wis.2d at 163, 434 N.W.2d at 792.
Schwersenska
argues that this case is analogous to Poston v. U.S. Fidelity &
Guaranty Co., 107 Wis.2d 215, 320 N.W.2d 9 (Ct. App. 1982), in which
the court did not infer an intent to injure.
In Poston, the plaintiff was injured when Thomas Coyne
"sloshed" gasoline on her and an onlooker ignited it. Id. at 217, 320 N.W.2d at 10. Poston brought suit against Coyne and his
insurer. Because Coyne's liability
policy excluded coverage for intentional acts, his insurer moved for summary
judgment, which the circuit court granted.
Id. at 217, 320 N.W.2d at 10. The court of appeals reversed, rejecting the insurer's argument
that "Coyne's acts were done with the intention of causing injury or with
the expectation that some injury was substantially certain to
follow." Id. at 223,
320 N.W.2d at 13.
The
Raby court summarized Poston as follows:
[I]n that case, there was no plan or agreement between
the insured and the third party to commit the crime causing injury to the
plaintiff. Absent such a plan, it could
not be said that the insured's intentional act of "sloshing" gasoline
on the plaintiff was, in itself, so substantially certain to result in bodily
injury that an intent to injure could be inferred from the nature of the
insured's intentional act as a matter of law.
153 Wis.2d at 114, 450 N.W.2d at 457. Because there was no plan or agreement
between Neitzke and Menge to commit the crime causing injury, Schwersenska
argues, this case is analogous to Poston and Neitzke's intent to
injure cannot be inferred as a matter of law.
Schwersenska
misconstrues the Raby court's reading of Poston. Absent a plan or agreement, Coyne had no
reason to expect that a third person would light Poston on fire after he
sloshed gasoline on her. Therefore,
under the facts of Poston, a plan or agreement was needed in
order for Coyne to be substantially certain that his actions would result in
bodily injury. Neitzke, on the other
hand, did not need to be carrying out a plan with Menge to be substantially
certain that Menge's actions would result in bodily injury. Neitzke directly observed Menge's actions in
taking a rifle and ammunition to confront an angry mob, loading the rifle, and
climbing outside the car with the rifle and facing a pursuing car. Poston is thus
distinguishable.[3]
Schwersenska
also argues that this case is distinguishable from Raby because
the confrontation at the car wash is inherently different from armed
robbery. Schwersenska argues that harm
is more likely to result from armed robbery than confrontations at a car wash,
and therefore it is more likely that intent to harm may be inferred from armed
robbery as a matter of law. See K.A.G.,
148 Wis.2d at 165, 434 N.W.2d at 793.
Schwersenska may be correct in concluding that armed robbery is more
likely to result in injury than the confrontation at the car wash. Regardless, because we have concluded that
the degree of certainty that Neitzke's actions would cause injury is
sufficiently great to justify inferring his intent to injure as a matter of
law, the question of which conduct was more certain to result in harm is
irrelevant.
Finally,
Schwersenska argues that Neitzke's intent to injure cannot be inferred as a
matter of law because Neitzke did not plead guilty to criminal charges.[4] In both Raby and N.N. v.
Moraine Mut. Ins. Co., 153 Wis.2d 84, 450 N.W.2d 445 (1990), the court
considered the insured's plea of guilty in inferring an intent to injure. Schwersenska argues that the exception to
the rule that intent to injure is a question of fact should be limited to cases
in which the insured has pleaded guilty to criminal charges. We disagree.
In
Raby, the court did not conclude that Moe's guilty plea was
necessary to establish intent. The
court first stated that "Moe's testimony at the criminal trial of Jeff Thompson
indisputably established that Moe willingly and actively assisted
Thompson in the commission of the armed robbery by driving the getaway
car." Raby, 153
Wis.2d at 110, 450 N.W.2d at 455 (emphasis added). Only after providing that Moe's intent was indisputably
established did the court state that Moe's voluntary plea of guilty
"further established" his intent to act. Id.
Therefore, Raby did not conclude that an admission of
guilt is necessary to establish intent.
In
N.N., the court concluded that the defendant's guilty plea was
the "determinative fact" in the case. 153 Wis.2d at 91, 450 N.W.2d at 448. The court did not, however, maintain that an intent to injure
cannot be inferred absent a guilty plea.
In fact, it appears that the court focused on the guilty plea because
the guilty plea was the focus of the insurance companies' motion for summary
judgment: "Defendant insurance companies made their prima facie case for
summary judgment based first upon the guilty plea of the defendant and additionally
upon the fact that sexual assault is by its very nature an intentional
act." Id. And the court did not focus solely on the
guilty plea in establishing intent: "We conclude on the basis of the
guilty plea and consistent evidence of intentional acts supporting the
acceptance of the plea that the intentional nature of Metz's behavior has been
demonstrated." Id.
at 96, 450 N.W.2d at 450 (emphasis added).
K.A.G.
v. Stanford, 148 Wis.2d 158, 434
N.W.2d 790 (Ct. App. 1988), was the first Wisconsin opinion to conclude that
intent "may be inferred as a matter of law without regard to the actor's
claimed intent." Id.
at 163, 434 N.W.2d at 792. In setting
forth the applicability of this rule, the court did not provide that a guilty
plea is a predicate to inferring intent as a matter of law. Instead, the court provided that for the
rule to apply:
[T]wo requirements must be met. First, the conduct must be intentional. Second, the conduct must be substantially
certain to cause injury. If these
conditions are met, the rule will only be applied if the degree of certainty
that the conduct will cause injury is sufficiently great to justify inferring
intent to injure as a matter of law.
Id. We have already established
that Neitzke's conduct satisfied these requirements.
In
addition, the K.A.G. court noted that the rule "is not
susceptible to a bright-line test and must be considered on a case-by-case
basis." Id. at 165,
434 N.W.2d at 793. If we were to follow
Neitzke's argument that intent to injure cannot be inferred absent the
insured's plea of guilty to criminal charges, we would establish a bright-line
test for determining whether to infer intent to injure. Because the rule is not susceptible to a
bright-line test and must be considered on a case-by-case basis, we reject
Neitzke's argument.
By
the Court.—Order affirmed.
[1] In its motion for summary judgment, American
Family also argued that Neitzke's actions were excluded from coverage because
its homeowners policy specifically excluded coverage for bodily injury or
property damage "arising out of the operation [or] use ... of ... any type
of motor vehicle." Because we
conclude that Neitzke's acts fell under the intentional acts exclusion of the
homeowners policy, we do not reach the issue of whether Neitzke's acts fell
under the motor vehicle exclusion. See
Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App.
1983).
[2] At least in this facet of the case, Neitzke's
intent to injure Schwersenska is more conclusively established than Moe's
intent to injure the store clerk. Moe
waited in the car while Thompson murdered the liquor store clerk, and therefore
was in no position to stop Thompson's actions.
Neitzke, on the other hand, was with Menge at the time of the
shooting. Neitzke could have told Menge
to stay in the car and refrain from firing the gun. Or Neitzke at least could have swerved the car to hinder Menge's
ability to aim. Neitzke's decision to
do nothing to prevent the shooting evinces an intent to cause injury.
[3] The result in Poston might well
have been different had Coyne observed the third person standing near Poston
with a lighted match prior to the gasoline "sloshing." In Raby v. Moe, 153 Wis.2d
101, 450 N.W.2d 452 (1990), in addition to the conspiracy to commit armed
robbery, the supreme court noted that "Moe knew that Thompson
entered the liquor store with a loaded 12-gauge shotgun and intended to point
the gun at the store clerk." Id.
at 114, 450 N.W.2d at 457 (emphasis added).