Opinion
No. 5-961 / 05-0503
Filed March 15, 2006
Appeal from the Iowa District Court for Sac County, Joel E. Swanson, Judge.
Tracey Roberts appeals the grant of summary judgment in favor of AMCO Insurance Company and Allied Property and Casualty Insurance Company holding that AMCO and Allied did not have a duty to defend or indemnify Roberts. AFFIRMED.
Scott Bandstra of Bandstra Law Firm, P.C., Des Moines, for appellant.
Merrill C. Swartz and John B. Grier of Cartwright, Druker Ryden, Marshalltown, for appellee.
Robert Laubenthal of Smith Peterson Law Firm L.L.P., Council Bluffs, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Appellant, Tracey Roberts, shot and killed Dustin Wehde when Wehde allegedly broke into Roberts's home and assaulted her. Wehde's estate sued Roberts contending she assaulted Wehde and wrongfully caused his death. Roberts contended she acted in self-defense and tendered her defense to appellees, AMCO Insurance Company and Allied Property and Casualty Insurance Company. Roberts contended her actions were insured by policies she had with AMCO and Allied and that the insurance companies were required to defend her pursuant to the policies. AMCO and Allied sought a declaratory judgment that led to this appeal in which they contended Roberts was not covered for her acts and they were not bound to defend or indemnify her. AMCO and Allied moved for summary judgment and their motion was sustained by the district court. In sustaining AMCO and Allied's motion for summary judgment, the district court held that AMCO and Allied did not have a duty to defend or indemnify Roberts. On appeal, Roberts contends (1) the AMCO farm master insurance policy included an exception that prevented application of the expected or intentional injury exclusion, (2) the district court erred in applying the expected or intentional injury exclusion because Roberts's actions were in self-defense and defense of her family, and (3) the district court should have denied the motion for summary judgment pursuant to the reasonable expectation doctrine. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Taking the facts in the light most favorable to Roberts, one could find that Roberts was at her home with her three children on the evening of December 13, 2001. While she was upstairs preparing to give her one-year-old daughter a bath, she heard noises downstairs. When she looked down the stairs she saw two people were coming up the stairs, decedent, Dustin Wehde, and another person, who was never identified. Roberts rushed her young daughter into the room where her eleven-year-old and three-year-old sons were watching a video. Roberts was grabbed from behind and pulled into the hallway by the intruders. Wehde and the other person then assaulted Roberts. She remembers being choked around her neck.
The next thing Roberts remembers is waking up on the floor of the guest bedroom. She heard yelling down the hallway and ran towards it. Roberts was grabbed again and assaulted by the two intruders. She was able to struggle away from them and run into her bedroom. She went to the area between her dresser and bed, where a gun safe was located. While Wehde was standing over her and grabbing at her she was able to get the gun safe open and grab a nine-millimeter gun from the safe. It was dark in the room and Roberts's prescription glasses had been lost in the struggle, so Roberts just aimed the gun in the direction that she was being grabbed from and, after switching the safety off, she discharged the gun. Wehde was struck and went down. Apparently the other intruder fled after Roberts got a hold of the gun.
After shooting Wehde, Roberts took nine-millimeter gun and a revolver, also from the gun safe, and went to the bedroom to check on her children. The children were fine. Roberts then saw a figure moving near her bedroom. Roberts told the figure not to move. The figure continued to move so Roberts fired a shot from the revolver as a warning to the person to stay still. When the figure continued to move she fired the revolver multiple times at the figure. She then closed the bedroom door and went downstairs where her oldest son called 911.
Wehde died as a result being shot by Roberts. As of this date, Roberts has not been criminally charged in the shooting death. The estate of Wehde claims that after shooting Wehde multiple times with the nine-millimeter handgun, Roberts "made the conscious and knowing decision to return to the bedroom and kill Dustin Wehde with a second weapon."
Prior to the incident on December 13, 2001, Roberts had purchased a total of three insurance policies from AMCO and Allied. Roberts had purchased (1) a farm master insurance policy from AMCO, (2) a homeowner's insurance policy from Allied, and (3) a farm excess liability insurance policy from AMCO, which is an umbrella policy that applies only when the underlying policies provide coverage.
In their motion for summary judgment on their petition for declaratory judgment, AMCO and Allied argued that summary judgment must be granted in their favor because the incident, whereby Roberts shot decedent, did not constitute an "occurrence" under the insurance policies and, in the alternative, coverage was excluded under the expected or intended injury exclusions found in the insurance policies.
In granting the motion for summary judgment the district court held AMCO and Allied did not have a duty to defend or indemnify because Roberts's conduct was intentional pursuant to McAndrews v. Farm Bureau Mut. Ins. Co., 349 N.W.2d 117, 120 (Iowa 1984).
In challenging the grant of summary judgment, Roberts argues (1) there was a genuine issue of material fact as to whether the AMCO farm master insurance policy included an exception that prevented application of the expected or intentional injury exclusion where reasonable force was used to protect persons or property, (2) the district court erred in applying the expected or intentional injury exclusion because Roberts's actions were in self-defense and defense of her family, and (3) the district court should have denied the motion for summary judgment pursuant to the reasonable expectation doctrine.
II. SCOPE OF REVIEW.
We review summary judgment rulings for correction of errors of law. Iowa R. App. P. 6.4; Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005). Where the record shows no genuine dispute of a material fact, summary judgment is appropriate. Id. In determining whether summary judgment is appropriate, we view the entire record in a light most favorable to the nonmoving party. Id. We also indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. Id. III. ANALYSIS. A. Exception to Expected or Intentional Injury Exclusion.
There is no dispute that the AMCO farm master policy included an exclusion for bodily injury, property damage or personal injury "which is expected or intended by any `insured.'" Roberts maintains that the policy also included the following exception to the exclusion: "However this exclusion does not apply to bodily injury resulting from the use of reasonable force to protect persons or property."
There are two problems with Roberts's argument. The first problem is one of error preservation. While Roberts argued in her resistance to AMCO and Allied's motion for summary judgment that language as to use of reasonable force was a part of her farm master policy, the district court did not rule on this issue. Roberts did not file a motion to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2). "It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (emphasis added). "When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal." Id.
The second problem with Roberts's claim the expected or intentional injury exclusion included an exception for the use of reasonable force is that AMCO submitted an affidavit and a certified copy of Roberts's farm master policy, which AMCO states was in effect at the time of incident, indicating the reasonable force language was not included in Roberts's policy. While Roberts contends the reasonable force language was a part of her policy, she provided no specific facts to support that contention. In summary judgment proceedings, the nonmoving party may not rest upon the mere allegations, but must set forth specific facts showing the existence of a genuine issue for trial. Iowa R. Civ. P. 1.981(5); Hlubek v. Pelecky, 701 N.W.2d 93, 95-96 (Iowa 2005). Speculation is not sufficient to generate a genuine issue of fact. Walls v. Jacob North Printing Co., 618 N.W.2d 282, 284 (Iowa 2000). After AMCO presented evidence in the form of an affidavit and a certified copy of the farm master policy that indicated the language about reasonable force was not a part of Roberts's policy, it was up to Roberts to provide evidence to create a genuine issue of material fact, which she failed to do. We affirm on this issue.
B. Self-Defense as Non-Intentional Conduct.
To determine whether an insurer has duty to defend, we look to the facts at the outset of the case against the insured, which are generally those facts alleged in the petition against the insured. McAndrews, 349 N.W.2d at 119. We will sometimes expand our inquiry to examine any other admissible and relevant facts found in the record. Id. In the present case, the petition against Roberts and the other relevant facts introduce the issue of self-defense.
Under both policies there must be an "occurrence" before coverage is triggered. Both policies define "occurrence" as an accident resulting in bodily injury. An accident is an event that is unintended from the perspective of the insured. Stine Seed Farm, Inc. v. Farm Bureau Mut. Ins. Co. , 591 N.W.2d 17, 19 (Iowa 1999). Additionally, both policies include exclusions for expected or intentional injuries caused by the insured. The farm master policy states, "Farm liability coverage in the Farm Master Policy does not apply to bodily injury, property damage or personal injury . . . which is expected or intended by any insured." The homeowner's policy states that coverage does not apply to:
1. Expected or Intended Injury
"Bodily injury" or "property damage" which is expected or intended by an insured even if the resulting bodily injury or property damage:
a. Is of a different kind, quality or degree than initially expected or intended; or
b. Is sustained by a different person, entity, real or personal property, than initially expected or intended.
Therefore, our task in determining whether the coverage of the insurance policies is implicated in this case is to resolve whether Roberts's conduct was intentional. Roberts argues her conduct was not intentional because she was acting in self-defense.
The intent to cause the injury may be either actual or inferred from the conduct of the insured. Allied Mutual Ins. Co. v. Costello, 557 N.W.2d 284, 286 (Iowa 1997). Our supreme court has clearly and repeatedly indicated that an action by the insured in self-defense does "not change the fact it was an intentional act." McAndrews, 349 N.W.2d at 120.
The question of self-defense is a standard of [the insured's liability] to [the injured party]. It presents an issue of motive or justification for an intentionally caused harm, but it does nothing to avoid the inference of intent to harm that necessarily follows from the deliberate blow to [the injured party]. . . .
Id. (quoting Home Ins. Co. v. Neilsen, 332 N.E.2d 240, 244 (Ind.Ct.App. 1975); accord Costello, 557 N.W.2d at 286 (reaffirming McAndrews); American Family Mut. Ins. Co. v. De Groot, 543 N.W.2d 870, 871 (Iowa 1996) (summarizing McAndrews in stating, "We concluded the insured's striking of the victim was an act excluded from coverage because it was intentional, even if done in self-defense."); Altena v. United Fire and Cas. Co., 422 N.W.2d 485, 488 (Iowa 1988) (reaffirming McAndrews).
Roberts argues that the present case should be distinguished from McAndrews because Roberts was not convicted or even charged with a crime in connection with her actions, while in McAndrews the insured was criminally charged and pled guilty to a reduced criminal charge. McAndrews, 349 N.W.2d at 119-120. This is not an appropriate basis for a distinction. The McAndrews court stated, "In assessing the duty to defend, however, we look to the facts as they appeared prior to trial, not as they later developed. We assume, for that purpose, that McAndrews in fact did act in self-defense." Id. at 119. Thus, in holding that acting in self-defense did not prevent application of the intentional acts exclusion, the court did not consider whether the insured acted wrongfully; the court instead assumed the insured did act in self-defense.
We recognize that a number of other jurisdictions take the opposite position of Iowa on this issue. The West Virginia Supreme Court observed that there is a growing majority of courts that are examining the present issue and concluding that the insured is not acting with the intent to cause injury to another when acting in self-defense but, rather, the insured is acting with an intent to prevent injury to himself or herself. Farmers and Mechanics Mut. Ins. Co. of West Virginia v. Cook , 557 S.E.2d 801, 809-810 (W.Va. 2001). The West Virginia court collected cases from fifteen other jurisdictions (thirteen of which were decided after McAndrews) that support the position an injury resulting from an act committed by an insured in self-defense is not, as a matter of law, an expected or intended act. Id. at 810 n. 5. There is a growing majority in favor of that rule; however, if a different rule is to be adopted in Iowa it must come from our supreme court.
Faced with the clear and repeated pronouncements of our supreme court, we must conclude Roberts's shooting of Wehde was an intentional act for purposes of the insurance policies at issue, even if it was in self-defense. We affirm on this issue.
C. Reasonable Expectation Doctrine.
Roberts's final argument is that we should apply the reasonable expectation doctrine and hold that a reasonable person would have understood the policies issued to Roberts to include coverage under the facts of the present case.
Once again, we are faced with an issue of error preservation. While Roberts argued in her resistance to AMCO and Allied's motion for summary judgment that the reasonable expectation doctrine should apply, the district court did not rule on this issue. Roberts did not file a motion to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2). "It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Meier, 641 N.W.2d at 537 (emphasis added). "When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal." Id.
Roberts's argument also fails on the merits. The rationale of the reasonable expectation doctrine is that,
in a contract of adhesion, such as an insurance policy, form must not be exalted over substance, and that the reasonable expectations of the insured may not be frustrated even though painstaking study of the policy provisions would have negated those expectations.
Farm Bureau Mut. Ins. Co. v. Sandbulte , 302 N.W.2d 104, 112 (Iowa 1981) (citations and quotation marks omitted). The reasonable expectation doctrine is narrow. Grinnell Select Ins. Co. v. Continental Western Ins. Co. , 639 N.W.2d 31, 37 (Iowa 2002). The doctrine is "employed by courts only `when the insurance coverage provided eviscerates terms explicitly agreed to or is manifestly inconsistent with the purpose of the transaction for which the insurance was purchased.'" Id. (quoting Monroe County v. International Ins. Co., 609 N.W.2d 522, 526 (Iowa 2000)). The doctrine's applicability is triggered by proof that "(1) an ordinary layperson would misunderstand the policy's coverage, or (2) circumstances attributable to the insurer fostered coverage expectations." Id. The doctrine is not applicable here, as it would force us to overlook Iowa's settled law as to the interpretation of what has been held to be the plain language of the policy. Id.; see McAndrews, 349 N.W.2d at 119-120.
AFFIRMED.
Vogel, J., concurs specially; Mahan, J., concurs specially.
I specially concur as the language of the two policies and the posture of the issues preserved for appeal compel us to affirm the district court's ruling on summary judgment.
Because of the presence and force of the intruders, Roberts acted instinctively to protect herself, her children and her property from imminent harm and loss. The irony is that if Roberts had done nothing, she may also have been denied coverage. Under Section One "Exclusions," the Allied Insurance homeowner's policy reads:
We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.
5. Neglect: Neglect means neglect of an "insured" to use all reasonable means to save and preserve property at and after the time of a loss.
Roberts not only acted to save her family, she was also following the dictates of the policy, "to use all reasonable means to save and preserve property". The policy is internally inconsistent if an intentional act to save property is excluded because the act, while causing the death of an intruder, likely saved the lives as well as the property of the insured family from loss. See Schmith v. Union Mut. Cas. Co., 247 N.W. 655, 660 (Iowa 1933) (noting rule of construction that where provisions of an insurance policy are irreconcilable, the policy must be construed most strongly against insurer).
I concur specially. I agree with the majority that we must affirm this case based upon the current state of the law in Iowa as set out in McAndrews v. Farm Bureau Mut. Ins. Co., 349 N.W.2d 117, 120 (Iowa 1984). However, I find compelling the argument by a growing number of courts that acting in self-defense is not acting with the intent to cause injury to another but, instead, acting with an intent to prevent injury to oneself.
In the instant case, this mother was attempting to protect herself and her children. However, the current status of the insurance law would appear to force her to make a decision between possible death or serious injury to herself and her family or coverage under the policy.