Opinion
No. 52640-5-I
Filed: November 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-2-04927-1. Judgment or order under review. Date filed: 11/13/2002, Judge signing: Hon. George Bowden.
Counsel for Appellant(s), Franklin William Shoichet, Attorney at Law, 900 4th Ave Ste 3250, Seattle, WA 98164-1072.
Frank Robert Willson, Bigsby Willson, 1907 Everett Ave, Everett, WA 98201-3576.
Counsel for Respondent(s), Peter B Klipstein, Merrick Hofstedt Lindsey, 710 9th Ave, Seattle, WA 98104-2099.
Sidney Robert Jr Snyder, Attorney at Law, 710 9th Ave, Seattle, WA 98104-2017.
Dennis Cramm was convicted of first degree murder with extreme indifference for intentionally firing a semi-automatic rifle and killing Jason Thompson and Jesse Stoner. Farmers Insurance Company (Farmers) filed a declaratory judgment action and argued the Cramm family's homeowner's insurance policy did not provide coverage for the deaths of Thompson and Stoner. We conclude Dennis Cramm's conduct of intentionally firing his semi-automatic rifle into a car and killing Thompson and Stoner is excluded under the policy's intentional act exclusion. We affirm the trial court's conclusion that there is no coverage for the deaths of Thompson and Stoner under the Cramms' homeowner's insurance policy.
FACTS
On May 28, 2000, seventeen-year-old Dennis Cramm and Martel Batten had a fight. Dennis kicked Batten in the face then drove away. Batten contacted Dennis, threatened him, and demanded he return to continue the fight. Dennis refused. Later that day, Dennis told his father, Dale Cramm, about the fight with Batten and Batten's threats. Dennis told his father he wanted to call the police. Dale refused to contact the police because of their involvement in selling illegal drugs.
We refer to Dennis and Dale Cramm by their first names to ensure clarity.
The next day, Batten and his friends drove to the Cramms' house. Dale was home but Dennis was not. Dale exchanged threats with Batten and Batten's friends. That night, Batten called and talked to Dale. Dale and Batten agreed to a fight the next day between Batten and Dennis at a nearby beach. After this conversation, Dale told Dennis and his friends to load ammunition into the semi-automatic weapons Dale kept at the house. They loaded the magazines for the weapons and taped multiple magazines together so they could be reloaded more quickly.
The next day when Dennis did not show up at the beach to fight, Batten called the Cramms' house. Dale answered the phone and told Batten to come over to their house to fight with his son. Dale then provided several of Dennis's friends with firearms and other weapons and told them to hide in the yard. At least three carloads of teenagers came to the Cramms' house to watch the fight between Dennis and Batten. One of the cars was driven by Chris Gulsvig. Seventeen-year-olds Jason Thompson and Jesse Stoner were in Gulsvig's car, along with two other passengers.
After about ten minutes, when the fistfight between Batten and Dennis appeared at a draw, somebody fired a gun. The crowd immediately scattered. Several rounds of gunfire followed. Gulsvig tried to get everyone who came with him back in his car to leave. Thompson and Stoner climbed into the back seat with a third person.
Dennis believed that Anthony Bovan, a friend of Batten's, had pointed a gun or shot at his father and a friend of his. Dennis grabbed one of the semi-automatic assault rifles and began shooting at Bovan. Bovan used Gulsvig's car as a shield. Dennis tried to shoot Bovan through the car. Dennis deliberately aimed and fired ten rounds from his semi-automatic assault rifle through the back window, adjusting his aim with each shot. Dennis said he did not see anyone in Gulsvig's car. On his last shot, the back window of the car fell out and Dennis saw people inside the car.
Gulsvig heard the shots and saw the back window shatter. Gulsvig also saw that Thompson and Stoner were injured. Gulsvig drove to a nearby store and called for help. Thompson and Stoner both died from the gunshot wounds.
Dennis Cramm was charged with two counts of first degree murder under circumstances manifesting an extreme indifference to human life in violation of RCW 9A.32.030(1)(b).
RCW 9A.32.030(1) provides:
A person is guilty of murder in the first degree when: (b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person.
In the criminal trial, Dennis admitted purposefully trying to shoot Bovan through Gulsvig's car, but argued self-defense and defense of others. Dennis testified that he feared for his own life as well as that of his father and his friend. The court instructed the jury on the elements of murder in the first degree with extreme indifference, self-defense and the lesser-included crime of first degree manslaughter. The jury convicted Dennis Cramm of first degree murder with extreme indifference for the deaths of Thompson and Stoner.
Cramm's conviction was affirmed on appeal by this court in an unpublished decision, State v. Cramm, 116 Wn. App. 1065, 2003 WL 21055444 (2003).
Following Dennis Cramm's conviction, Farmers filed a declaratory judgment action asking the court to rule there was no coverage for the deaths of Thompson and Stoner under Dale and Jacqualine Cramm's homeowner's insurance policy. In addition to naming the insureds Dennis Cramm and his parents, Dale and Jacqualine Cramm, as defendants, Farmers also named the personal representatives of the Thompson and Stoner estates (the Estates) as parties to the declaratory judgment action.
An order of default was entered against the Cramms.
Farmers filed a motion for summary judgment contending that as a matter of law, the jury's conviction of Dennis Cramm established the intentional act exclusion of the homeowner's policy barred coverage for the deaths of Thompson and Stoner. The Estates filed a cross motion for summary judgment. Relying on the criminal trial record, the Estates argued that because there was no evidence Dennis Cramm intended to injure Thompson and Stoner, they were entitled to coverage under the policy.
The trial court ruled the homeowner's policy provided no coverage for the deaths of Thompson and Stoner and Farmers had no duty to defend or indemnify the insureds. The Estates sought direct review and the Supreme Court transferred the case to this court.
ANALYSIS
On review of summary judgment, this court engages in the same inquiry as the trial court. Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 (1998). Summary judgment is properly granted when the pleadings and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The moving party bears the burden of demonstrating there is no genuine dispute as to any material fact. Green v. A.P.C., 136 Wn.2d 87, 100, 960 P.2d 912 (1998). The court must view the facts and all reasonable inferences in the light most favorable to the nonmoving party. Right-Price Recreation, LLC v. Connells Prairie Com. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002). Only when reasonable minds could reach but one conclusion on the evidence should the court grant summary judgment. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 485, 78 P.3d 1274 (2003).
The parties agree that the facts are undisputed. Because there is no dispute as to the facts, the only questions are those of law, which this court reviews de novo. Wash. Equip. Mfg. Co. v. Concrete Placing Co. Inc., 85 Wn. App. 240, 244, 931 P.2d 170 (1997). Interpretation of an insurance policy is a question of law. McDonald v. State Farm Fire Cas. Co., 119 Wn.2d 724, 730, 837 P.2d 1000 (1992). We interpret insurance contracts as an average purchaser would understand them and give undefined terms their plain, ordinary, and popular meaning. Daley v. Allstate Ins. Co., 135 Wn.2d 777, 784, 958 P.2d 990 (1998).
The Cramms' homeowner's insurance policy with Farmers provides coverage for bodily injury or property damage from an occurrence covered by the policy. Under the policy, coverage for bodily injury is excluded if the injury is:
3. Either:
a. caused intentionally by or at the direction of an insured, or
b. resulting from any occurrence caused by any intentional act of any insured person where the results are reasonably foreseeable.
Clerk's Papers (CP) at 370 (bold font for defined terms omitted).
The exclusion in 3(a) provides no coverage for injury intentionally caused by an insured and is referred to as the `intentional injury' exclusion. The exclusion in 3(b) provides no coverage for injury that is the reasonably foreseeable result of an intentional act of an insured and is referred to as the `intentional act' exclusion. The policy defines `occurrence' as `a sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor intended by the insured.'
CP at 360.
The Estates and Farmers agree that the interpretation of the `intentional injury' exclusion and `occurrence' requires using a subjective standard and an analysis of the insured's intent, whereas the interpretation of the `intentional act' exclusion requires using an objective standard to determine whether the results of an insured's act are reasonably foreseeable. Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 430-31, 932 P.2d 1244 (1997). In Peasley, the insured argued the phrase "injury which may reasonably be expected to result" was ambiguous because it could be read as requiring the insured's subjective expectation that the injury could result. Peasley, 131 Wn.2d at 430. The Court held this provision required use of an objective standard because `reasonably' implies a removed observer. The Court also held that when there is a separate exclusion denying coverage for any injury which is "in fact intended by an insured person," using a subjective standard creates a redundancy. Peasley, 131 Wn.2d at 430-31.
The Estates claim the intentional act exclusion does not preclude coverage because it is undisputed that Dennis Cramm did not intend to shoot Thompson and Stoner. The Estates argue the intentional act exclusion must be interpreted to require both intentional conduct and a subjective intent to cause the resulting injury. But the Estates' interpretation is contrary to Peasley and does not give effect to the separate and distinct intentional injury and intentional act exclusions. The Estates' argument also conflates the subjective and objective standards that apply to the two independent exclusions. We consider the contract in its entirety and must give effect to each policy provision. Peasley, 131 Wn.2d at 424. Because the intentional injury exclusion prevents coverage for any injury subjectively intended by the insured, to interpret the intentional act exclusion to require a subjective intent to cause an injury creates a redundancy. When each of the provisions is given effect, it is clear that the intentional act exclusion cannot require a subjective intent to cause injury.
The Estates also argue the intentional injury exclusion does not apply because Dennis did not intend to shoot Thompson and Stoner.
The Estates also argue the intentional act exclusion is ambiguous because there is more than one reasonable construction of the intentional act exclusion and because the word `intentional' is ambiguous. A provision is ambiguous if, on its face, it is fairly susceptible to more than one reasonable interpretation. Daley, 135 Wn.2d at 784. If a policy provision is ambiguous, the interpretation most favorable to the insured applies. Id. The court must enforce unambiguous language in an insurance contract as written and may not modify the contract or create an ambiguity where none exists. State Farm Mutual Auto. Ins. Co. v. Ruiz, 134 Wn.2d 713, 721, 952 P.2d 157 (1998).
The Estates contend the intentional act exclusion should be interpreted to exclude coverage `if and only if there has been a true `intentional act' by one insured, and a less-than-intentional act by a co-insured and an objectively foreseeable (though unintentional) result caused by that co-insured.' App. Br. at 40 (emphasis in original). But the requirement of multiple actors and multiple contributing causes of injury is not a reasonable interpretation of the intentional act exclusion. The exclusion is not limited to situations where more than one insured is sued, or to situations where the acts of more than one insured cause injury.
The Estates primarily rely on Preferred Mutual Ins. Co. v. Gamache, 42 Mass. App. Ct. 194, 675 N.E.2d 438 (1997), to argue that the intentional act exclusion is ambiguous and requires both an intent to act and intent to injure. The Estates' reliance on Gamache is misplaced. In Gamache, the insured (Gamache) injured a police officer while the officer was attempting to restrain and arrest him. Gamache's insurer brought a declaratory judgment action arguing there was no coverage for the officer's injuries under the intentional act exclusion, which stated: "[t]his policy does not apply to bodily injury which results directly or indirectly from an intentional act of the insured." Gamache, 675 N.E.2d at 440. Gamache argued the policy exclusion did not apply because he did not intend to injure the police officer when he resisted arrest. On appeal, the Massachusetts court ruled Gamache was entitled to coverage because the policy was ambiguous. The court said: `Standing alone, the phrase `intentional act' may appear to be unambiguous. However, using the phrase `intentional act' as the basis for an exclusion in a policy that provides coverage for an `accident' — a word that has been interpreted to encompass injuries resulting from an insured's volitional act — produces ambiguity.' Gamache, 675 N.E.2d at 441. The Gamache court also decided the insurer's definition of `intentional act' was too broad because it was not limited by reference to the likelihood of the injury caused by the act. The court concluded that under the policy any volitional act of the insured would be an intentional act excluded from coverage. Gamache, 675 N.E.2d at 442.
Here, unlike the policy in Gamache, Farmers homeowner's insurance policy includes separate and distinct intentional injury and intentional act exclusions and limits the application of the intentional act exclusion to the reasonably foreseeable results of an intentional act. And unlike Gamache, the Estates' interpretation of the intentional act exclusion to require a subjective intent to injure creates a redundancy with the intentional injury exclusion. See Peasley, 131 Wn.2d at 430-31.
The Estates also cite two out of state cases, Orear v. Allstate Ins. Co., 619 So.2d 974 (Fla.Dist.Ct.App. 1993), and Allstate Indem. Co. v. Lewis, 985 F. Supp. 1341 (M.D. Ala. 1997), to argue that where the phrase `reasonably foreseeable' is included in an intentional acts exclusion, the only results excluded are those where the act and the result are subjectively intended. Neither case is persuasive here. In Orear, the court concluded there was a material issue of fact regarding whether an injury to a person who was pushed by an insured while the two were playfully `slam dancing' was excluded by the provision excluding "bodily injury which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person." Orear, 619 So.2d at 975. The court remanded the case for a determination of whether the conduct of the insured was intended or could reasonably be expected to result in bodily injury. In Lewis, the court concluded that an exclusion of "any injury or property damages intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person" did not bar coverage for injuries caused by an insured firing a gun where the insured did not intend to shoot the gun. Lewis, 985 F. Supp. at 1345. Here, it is undisputed that Dennis aimed at Gulsvig's car and intentionally shot the gun.
The Estates also rely on Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 817 P.2d 861 (1991), and Aetna Cas. and Sur. Co. v. Brathwaite, 90 Or. App. 109, 751 P.2d 237 (1988), to argue coverage is allowed under an intentional act exclusion where an intentional act is directed at someone or something other than the person harmed. McGrath and Brathwaite are distinguishable. In both McGrath and Brathwaite, the courts were asked to determine whether an insured, who admittedly intended to fire a gun, intended injury within the meaning of an intentional injury exclusion, not an intentional act exclusion.
In McGrath, the insured (McGrath) was involved in an altercation in a parking lot and shot his opponent in the neck. McGrath admitted shooting in the general direction of the victim, but denied any intent to injure him. The court held that McGrath's shooting in the direction of the victim `in and of itself does not establish intent to injure because under these circumstances there could be an intent merely to warn or to intimidate.' McGrath, 63 Wn. App. at 173-74.
In Brathwaite, the insured went into a stadium and fired several rounds from a rifle, hitting and killing Brathwaite, who was jogging on a trail outside the stadium. The trial court found the insured intended to shoot into the area where Brathwaite was jogging, but there was no evidence the insured intended to hit him. The Oregon Court of Appeals affirmed the trial court's decision that because there was no evidence that the insured had a motive to shoot Brathwaite, the insurer had not met its burden of showing that the shooting was excluded from coverage under an intentional injury exclusion.
The Estates attempt to distinguish the present case from the circumstances in Safeco Ins. Co. of America v. Butler, 118 Wn.2d 383, 823 P.2d 499 (1992), where an insured, a trained marksman, deliberately chased, aimed and shot a rifle at a truck he knew was occupied. The issue in Butler was whether the insured's act of firing into an occupied truck was an `accident' within the meaning of the policy. The court's determination that coverage was not available did not depend on Butler's intent, but rather on whether the ricochet of a bullet fired at a metal truck was an unexpected, independent and unforeseen event. Here, Dennis Cramm was admittedly shooting at Bovan through Gulsvig's car and knew there were a number of people in the immediate vicinity just seconds before he started shooting. Under these facts, no reasonable person could conclude the deaths of Thompson and Stoner were not reasonably foreseeable.
The Estates also claim their interpretation of `intentional act' to include both the intent to act and the intent to injure is supported by dictionary definitions of `intentional' that emphasize purpose, rather than intentional conduct. `Intentional' is defined in the dictionary as `done of one's own will,' `done deliberately,' and `done on purpose.' While the cited dictionary definitions support the Estates' claim that an intentional act must be deliberate or purposeful rather than volitional, the definitions do not support the Estates' argument that `one must look to the ultimate purpose of the act, not merely the unforced choice attending the physical gesture.' The dictionary definitions cited do not require that an intentional act result in the intended effect. At most, the definitions require some intended effect, which is established by Dennis Cramm's intent to shoot Bovan.
Webster's New Collegiate Dictionary 1303 (1979).
American Heritage Dictionary of the English Language 911 (4th ed. 2000).
Oxford English Dictionary 1080 (1980).
App. Br. at 27.
The Estates argue Farmers' interpretation of the intentional act exclusion is overly broad and would eliminate coverage for all negligent acts. We need not address whether the intentional act exclusion might, in some cases, reach too far, because here, Dennis Cramm's conduct and the resulting deaths of Thompson and Stoner clearly meet the objective standard of the Farmers homeowner's insurance policy's intentional act exclusion. Dennis intentionally fired ten shots from a semi-automatic rifle into a car to shoot Bovan. Dennis adjusted his aim with each shot, and although he knew there were a number of people in the immediate vicinity just seconds before, he continued shooting through the car.
This is not like a case where a gun is fired in a desert by one who intends to pull the trigger but who does not know a person is there and hit by the bullet, nor is it like a case where a person intends to back a car up but does so negligently and causes an accident with a vehicle having the right of way. See Snyder v. Nelson, 278 Or. 409, 564 P.2d 681, 683 (1977), quoted in App. Br. at 22; Queen City Farms, Inc. v. Central Nat'l Ins. Co., 126 Wn.2d 50, 66, 882 P.2d 703 (1994), quoted in App. Br. at 20. Instead, this case is akin to one where a person in a desert fires a gun at one person, fails to hit that person, but succeeds in hitting a person that the shooter did not know was there. Or it is analogous to one where a person is backing up a car, tries to hit a car, and ends up hitting another car.
The Estates also contend that because intent is not an element of murder with extreme indifference, Dennis Cramm's criminal conviction establishes only that he was guilty of aggravated negligence, not that his acts were intentional.
While specific intent to kill is not an element of murder with extreme indifference, the mental state required for murder with extreme indifference is `intent to engage in conduct that creates risk of death.' State v. Pettus, 89 Wn. App. 688, 696, 951 P.2d 284 (1998).
In State v. Dunbar, 117 Wn.2d 587, 590-95, 817 P.2d 1360 (1991), the court held that first degree murder with extreme indifference does not require specific intent to kill.
To convict Dennis Cramm of murder in the first degree with extreme indifference, the jury had to find beyond a reasonable doubt:
(1) That on or about the 30th day of May, 2000, [Dennis Cramm] shot a semi-automatic rifle;
(2) That the conduct of the defendant created a grave risk of death to another person;
(3) That the defendant engaged in that conduct under circumstances manifesting an extreme indifference to human life;
(4) That [Stoner/Thompson] died as a result of the defendant's acts; and
(5) That the acts occurred in the State of Washington.
CP at 304.
Based on the evidence and instructions at trial, the jury convicted Dennis Cramm on two counts of murder in the first degree with extreme indifference and found his conduct created a grave risk of death and manifested an extreme indifference to the lives of Thompson and Stoner. The jury's conviction of Dennis Cramm establishes that although Dennis may not have intended to kill Thompson and Stoner, he did intentionally engage in conduct that manifested extreme indifference and caused their deaths.
CONCLUSION
No reasonable person could conclude Dennis Cramm's acts were not intentional conduct and that the resulting deaths of Thompson and Stoner were not reasonably foreseeable under the intentional act exclusion. We affirm the trial court's decision that there is no coverage under the Farmers policy for the deaths of Thompson and Stoner.
The Estates also argue the intentional injury exclusion does not bar coverage for Thompson and Stoner's deaths and the deaths were covered `occurrences' under the policy because there is no evidence Dennis Cramm subjectively intended to injure them. Because we conclude coverage is barred by the insurance policy's intentional act exclusion, we need not address whether coverage is also barred by the intentional injury exclusion or whether the deaths were the result of an `occurrence' within the meaning of the policy.
APPELWICK, J. and AGID, J., Concur.