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Thomas v. Benchmark Insurance Co.

March 28, 2007

RENE THOMAS, AS PARENT AND NATURAL GUARDIAN OF JULIANA SANCHEZ AND VIVIANA SANCHEZ, MINORS AND HEIRS AT LAW OF RAMON SANCHEZ; AND VICTOR REYES, APPELLEES,
v.
BENCHMARK INSURANCE COMPANY, APPELLANT.



Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 409, 140 P.3d 438 (2006). Appeal from Wyandotte district court; DANIEL A. DUNCAN, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed.

SYLLABUS BY THE COURT

1. Where there is no factual dispute, appellate review of an order granting summary judgment is de novo.

2. Appellate review of the interpretation of insurance contracts is de novo.

3. An insurance company has the burden to prove that its policy exclusion applies to bar coverage previously granted.

4. Under Kansas public policy, an individual should not be exempt from the financial consequences of his or her own intentional injury to another. Consequently, in K.S.A. 40-3107(i)(6), the legislature has authorized motor vehicle liability insurers to exclude coverage "for any damages from an intentional act." Such exclusionary clauses should be narrowly construed against the insurer.

5. In determining whether an intentional act has caused an intentional injury, which would bar insurance coverage under intentional act or intentional injury exclusion clauses, Kansas has followed the natural and probable consequences test: Where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.

6. In determining whether an intentional act has caused an intentional injury to bar insurance coverage under intentional act or intentional injury exclusion clauses, Kansas' traditional natural and probable consequences test is modified to read as follows: The insured must have intended both the act and to cause some kind of injury or damage. Intent to cause the injury or damage can be actual or it can be inferred from the nature of the act when the consequences are substantially certain to result from the act.

7. In applying the modified test for determining intentional injury to the facts of this case, it is held that the insurance company met its burden demonstrating application of its policy's exclusionary clause; the plaintiffs' injuries were substantially certain to result from their car driver's intentional acts.

The opinion of the court was delivered by: Nuss, J.

This case concerns a dispute about automobile liability insurance. While fleeing police, Melissa Gutierrez lost control of the car she was driving at a high rate of speed, killing her and passenger Ramon Sanchez and injuring passenger Victor Reyes. In a declaratory judgment action, Reyes and Rene Thomas, as parent and natural guardian of minors and heirs at law of Sanchez, sought a ruling that Gutierrez' Benchmark Insurance Company policy provided coverage. The district court entered summary judgment against Benchmark; a divided panel of our Court of Appeals reversed in Thomas v. Benchmark Ins. Co., 36 Kan. App. 2d 409, 140 P.3d 438 (2006). We granted review; our jurisdiction is pursuant to K.S.A. 20-3018(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Does the policy's intentional act exclusion bar coverage?Yes.

2. Does the illegal act exclusion bar coverage? Moot.

Accordingly, the judgment of the Court of Appeals reversing the district court is affirmed; the judgment of the district court is reversed.

FACTS

On November 8, 2003, Victor Reyes, Ramon Sanchez, and Melissa Gutierrez entered a pub in Overland Park. After consuming alcohol, Reyes and Sanchez became involved in a fight that moved outside. Eventually, Sanchez and Reyes got into Gutierrez' car, with Sanchez in the front passenger seat and Reyes in the back. Sanchez then pulled a handgun and, when the car was moving, fired approximately 10 times in the general direction of a group of six or seven people. Once Sanchez' gun was empty, Gutierrez drove away.

A police officer observed the car traveling north on Interstate 35 in excess of 80 miles per hour. While attempting to catch the car, the officer next spotted it on Interstate 635. After the officer activated his lights, Sanchez threw the gun out of the car. Eventually, Gutierrez pulled onto the highway shoulder. After the officer stopped and backup arrived, both officers exited their cars. But before Gutierrez could be ordered from the car, she drove away. According to Reyes, Gutierrez took off despite protest from both passengers.

The officer lost sight of Gutierrez' car as it exited Interstate 635 onto Shawnee Drive. While proceeding on Shawnee Drive, Gutierrez lost control; her car flipped several times and Sanchez was thrown from the car. Gutierrez and Sanchez died, and Reyes, who was wearing a seatbelt, survived with several injuries.

Reyes and Rene Thomas (Plaintiffs) filed a declaratory judgment action against Benchmark Insurance Company seeking a determination of the parties' rights under the automobile liability policy issued to Gutierrez. Benchmark responded that insurance coverage was barred due to (1) the criminal conduct of the driver and passengers--the "illegal act exclusion"--and (2) the intentional conduct of Gutierrez--the "intentional act" exclusion.

Plaintiffs moved for summary judgment. The parties later stipulated to the facts as provided in the police records, which included a statement given by Reyes to police in the early morning hours of November 9, 2003, for the limited purpose of the summary judgment motion.

After a hearing, the district court granted summary judgment for plaintiffs. The court concluded that the illegal act exclusion did not apply but did not address the intentional act exclusion.

A majority panel of the Court of Appeals reversed the district court, holding that Gutierrez' excessive speeding prohibited recovery under the intentional act exclusion. Thomas v. Benchmark Ins. Co., 36 Kan. App. 2d 409, 421, 140 P.3d 438 (2006). The majority also agreed with the district court that the policy's "illegal act" exclusion did not apply. Judge Bukaty dissented from the majority's conclusion that Gutierrez' intentional conduct precluded coverage under the policy. 36 Kan. App. 2d at 426-31.

Plaintiffs petitioned for review, and Benchmark cross-petitioned; this court granted review. More facts will be provided as necessary to the analysis.

ANALYSIS

Issue 1: The Intentional Act Exclusion Bars Coverage

Standard of Review

The parties stipulated to the facts as provided in the police records for the limited purpose of the summary judgment motion. Moreover, we must interpret the insurance contract. Our review is therefore de novo. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004) (Where there is no factual dispute, appellate review of an order granting summary judgment is de novo.); see Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003) (Review of the interpretation of insurance contracts is unlimited.).

Arguments

According to the Benchmark policy's initial grant of coverage, Benchmark agreed to pay: "damages for bodily injury or property damage for which you or any family member becomes legally responsible because of an auto accident." The policy defined an auto accident as "an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance or use of an auto or other motor vehicle."

After the policy's initial grant of coverage, it excluded, among other things, "bodily injury caused intentionally by you or any family member or at your or any family member's direction." (Emphasis added.) Plaintiffs argue that the Court of Appeals majority erred in reversing the district court's summary judgment order on the basis of this intentional act exclusion. While they admit Gutierrez drove recklessly or wantonly and at excessive speeds, they assert that her loss of vehicle control was not intentional. Plaintiffs claim that under the majority's rationale, an insurance company could simply deny coverage any time a wreck occurred if the driver committed a traffic violation, e.g., speeding.

As we understand Benchmark's response, it takes no issue with the initial grant of coverage; rather, it simply argues that this intentional act exclusion barred coverage otherwise existing because the wreck and injuries were "natural and probable consequences" of Gutierrez' intentional act of driving at an excessive rate of speed. It cites, inter alia, State Farm Fire & Cas. Co. v. Falley, 23 Kan. App. 2d 21, 926 P.2d 664 (1996), rev. denied 261 Kan. 1086 (1997). Benchmark has the burden to demonstrate that the exclusion applies. See Buchanan v. Employer's Mutual Liability Ins. Co., 201 Kan. 666, Syl. ¶ 2, 443 P.2d 681 (1968).

Relying upon its interpretation of this court's prior decisions, the Court of Appeals majority felt obligated to apply the natural and probable consequences test. It determined that the injuries were intentionally caused and therefore excluded coverage. 36 Kan. App. 2d at 418. The dissent essentially urged application of a test that required Gutierrez to have intended both the act and to cause some kind of injury or damage.

Before proceeding with the analysis, a review is in order.

Review

Kansas public policy prohibits insurance coverage for intentional acts: "[A]n individual should not be exempt from the financial consequences of his own intentional injury to another." Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 28, 804 P.2d 1374 (1991); see Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 686, 512 P.2d 403 (1973). Consequently, the legislature has authorized motor vehicle liability insurers to exclude coverage "for any damages from an intentional act." See K.S.A. 40-3107(i)(6). Such exclusionary clauses should be narrowly construed against the insurer. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 327, 961 P.2d 1213 (1998).

"In a certain sense, all acts are intentional, save perhaps for involuntary muscle spasms." Dykes, Occurrences, Accidents, and Expectations: A Primer of These (and Some Other) Insurance-Law Concepts, 2003 Utah L. Rev. 831, 846-47 (2003). See Falk v. Whitewater, 65 Wis. 2d 83, 221 N.W.2d 915 (1974) (Almost all negligent conduct is composed of individual intentional components.). Accordingly, a distinction is drawn between intentional acts and the intent to cause injury. See Pachucki v. Republic Insurance Co., 89 Wis. 2d 703, 278 N.W.2d 898 (1979) (An intentional act is a separate legal consideration and must be distinguished from the intent to cause injury.) (citing Falk v. Whitewater, 65 Wis. 2d 83, 221 N.W.2d 915 [1974]). Kansas recognizes, for example, that an intentional act may nevertheless result in unintended injury. See Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. at 687.

The parties agree upon Gutierrez' intentional acts, e.g, driving her car at an excessive speed. Accordingly, we are concerned with the second step of the Kansas intentional act exclusion analysis: whether, through her intentional acts, she intentionally caused the injuries. If so, coverage is excluded. Short of direct evidence of Gutierrez' intent to cause injury, i.e., through her testimonial admission, her intent to cause injury may be inferred. In Kansas, intent to cause injury may be inferred if the injury is the natural and probable consequence of her intentional acts. Particularly because the facts are stipulated to, we may make this intentional injury determination as a matter of law. See Roy v. Young, 278 Kan. at 247 (where there is no factual dispute, appellate review of an order granting summary judgment is de novo); Loveridge v. Chartier, 161 Wis. 2d 150, 468 N.W.2d 146 (1991) (whether defendant intended to injure plaintiff is matter of law based upon undisputed facts).

In Harris v. Richards, 254 Kan. 549, 554, 867 P.2d 325 (1994), we stated that the natural and probable consequences approach had been developed in a series of cases, beginning with Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir. 1968). In Rankin, the driver of a pickup truck, after unsuccessfully trying to stop a motorcyclist traveling alongside, intentionally turned his truck into the motorcyclist. The trucker argued that his insurance carrier's coverage for the motorcyclist's injuries was not excluded by a clause whose operative language was virtually identical to the instant case: excluding liability for "bodily injury or property damage caused intentionally by or at the direction of the insured." 393 F.2d 719. The Tenth Circuit Court of Appeals disagreed, stating:

"Here the driver of a truck, while traveling at a speed of fifty miles an hour alongside of a motorcycle going in the same direction at the same speed, deliberately and purposefully threw his truck against the motorcycle and its rider. Persons are presumed to intend the natural and probable consequences of their acts. State v. Gordon, 151 Kan. 932, 101 P.2d 888 [1940]." (Emphasis added.) 393 F.2d at 720.

The Tenth Circuit concluded:

"The serious injury of the rider of the motorcycle was a consequence of the deliberate collision and should have been expected and hence intended.

". . . Where an intentional act results in injuries which are the natural and probable consequences of the act, the injuries, as well as the act, are intentional. See Wigginton v. Lumbermens Mutual Casualty Co., La. App., 169 So. 2d 170 [1964]." (Emphasis added.) 393 F.2d at 720. Since the Rankin decision in 1968, Kansas appellate courts have faithfully applied its "natural and probable consequences" test to various "intentional act exclusions" and have usually excluded coverage. One frequently addressed clause has provided exclusion from liability for "bodily injury . . . which is either expected or intended from the standpoint of the insured." (Emphasis added.) Apparently, the first Kansas appellate decision to apply the Rankin test to this particular exclusion was Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982). There, a homeowner shot a partygoer in the face at close range with a pistol. After reviewing the arguments, the Thomas court held that "[t]he better rule is found in Rankin, where it was held that where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional." It excluded the plaintiff's injury from coverage. 7 Kan. App. 2d at 721.

Similarly, the following year in Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), this court excluded coverage under this same "expected or intended" clause because the injury to the plaintiff's eye was the "natural and probable consequence" of playing a game where a playmate repeatedly shot at him with a BB gun. Relying upon Thomas, which in turn relied upon Rankin, the court held at 234 Kan. 461, Syl. ¶ 2: "[W]here an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional." See Spivey v. Safeco Ins. Co., 254 Kan. 237, 865 P.2d 182 (1993) (test applied to claims of assault, battery, and infliction of emotional distress and bodily harm; coverage excluded under same clause); Harris v. Richards, 254 Kan. 549, 867 P.2d 325 (1994) (test applied to shooting shotgun at occupied cab of pickup; coverage excluded under same clause); Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 28, 804 P.2d 1374 (1991) (jury instructions not clearly erroneous in school shooting case that provided shooter "would be presumed to have intended the natural and probable consequences of his actions"); see also First Financial Ins. Co. v. Bugg, 265 Kan. 690, 704, 962 P.2d 515 (1998) (Kansas has "adopted the natural and probable consequences test."). In none of these cases did this court address whether there is a distinction between these two terms contained in the intentional act exclusion clause--"expected" or "intended."

Another "intentional act" exclusion clause has excluded liability for "any damages arising from an intentional act." In State Farm Fire & Cas. Co. v. Falley, 23 Kan. App. 2d 21, 926 P.2d 664 (1996), rev. denied 261 Kan. 1086 (1997), the court addressed this particular clause and held that the Rankin natural and probable consequences test should be applied to determine whether coverage was excluded, i.e., because the plaintiff's injury was the "natural ...


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