Docket No. 99759.
Decided October 7, 1988.
Garan, Lucow, Miller, Seward, Cooper Becker, P.C. (by Sharon C. Ranucci and Rosalind Rochkind), for Allstate Insurance Company.
William M. Hatchett, for Robert Spicer.
Defendant Robert Spicer appeals as of right from a March 25, 1987, circuit court order granting plaintiff Allstate Insurance Company's motion for summary disposition under MCR 2.116(C)(10). We affirm.
Plaintiff, the insurer of defendant James Fisher, filed the present action seeking a declaratory judgment that it had no duty to defend or indemnify Fisher under a homeowner's policy for liability arising out of separate lawsuits filed against him by Spicer and defendant Richard Maloney. In the underlying actions, Spicer and Maloney filed lawsuits against Fisher alleging claims of assault and battery and negligence arising out of a shooting that occurred at Fisher's house on February 24, 1985.
On that night, Spicer, Maloney, Marv Berlin and Fisher played cards at Fisher's house. Maloney testified in his deposition that Fisher, who was his card-game partner, had been argumentative with him. After the game, Fisher then argued with Berlin and Berlin subsequently left the house.
Maloney testified that, after Berlin left, Spicer was sitting on the floor next to him when Fisher aimed a shotgun at them and fired it. Maloney and Spicer were hit by pellets. Fisher was standing three to four feet from them when he fired the gun. Maloney further testified that Fisher aimed the gun at them again but Maloney grabbed the gun and threw it into another room. As Fisher started to move towards the gun, Maloney knocked him out.
Spicer, on the other hand, testified that after Berlin left, he went upstairs. When he returned downstairs, he saw Fisher standing in the hallway holding a shotgun. Spicer was concerned for his own safety. As he was trying to get around the corner, he heard a shotgun blast and was hit in the back. Spicer further testified that he did not know if Fisher had intended to shoot him.
Here, plaintiff insurer claimed that it had neither the duty to defend nor indemnify Fisher because the lawsuits of Spicer and Maloney fell within the policy exclusion for
any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal act of an insured person or which is in fact intended by the insured person.
The circuit court agreed with plaintiff and granted summary disposition in favor of plaintiff and against Spicer and Maloney under MCR 2.116(C)(10) — no genuine issue of material fact. The court also granted a default judgment in favor of plaintiff and against Fisher. Only Spicer appeals from the court's order.
On appeal, Spicer does not argue that a genuine issue of material fact exists over whether Fisher's act of shooting was intentional. In fact, he states on appeal that Fisher obviously intended to fire the gun. Instead, he argues that the court erred by granting summary disposition because a genuine issue of material fact exists regarding whether Fisher intended or expected to injure Spicer. We disagree.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Hagerl v Auto Club Group Ins Co, 157 Mich. App. 684, 687; 403 N.W.2d 197 (1987), lv den 428 Mich. 900 (1987). The trial court must consider the affidavits, pleadings, depositions, admissions and documentary evidence then submitted or filed in the action. MCR 2.116(C)(10) and (G)(5). The party opposing the motion must show that a genuine issue of disputed facts exists. MCR 2.116(G)(4). The test is whether the kind of record that might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. Rizzo v Kretschmer, 389 Mich. 363, 371-373; 207 N.W.2d 316 (1973); Linebaugh v Berdish, 144 Mich. App. 750, 754; 376 N.W.2d 400 (1985).
This Court has ruled that a distinction should be made between the terms "intentional" and "expected" when a policy excludes coverage for intended or expected injuries. State Farm Fire Casualty Co v Jenkins, 147 Mich. App. 462, 467-468; 382 N.W.2d 796 (1985). The Court in Jenkins concluded that in order to avoid liability for an expected injury it must be shown that the injury was the natural, foreseeable, expected and anticipatory result of an intentional act, citing Group Ins Co of Michigan v Morelli, 111 Mich. App. 510, 516; 314 N.W.2d 672 (1981). See also State Farm Fire Casualty Co v Groshek, 161 Mich. App. 703, 707-708; 411 N.W.2d 480 (1987), and Allstate Ins Co v Freeman, 160 Mich. App. 349, 354-355; 408 N.W.2d 153 (1987), lv gtd 430 Mich. 857 (1988).
We conclude that Spicer's injuries could reasonably have been expected to result from Fisher's intentional act of shooting a shotgun in the area where Spicer was located. Even if Fisher did not intend to injure, or even hit, Spicer, Spicer's injuries were nevertheless the natural, foreseeable, expected and anticipatory result of Fisher's act. On the basis of the record developed below, the circuit court properly ruled that Fisher could have anticipated Spicer's injuries. Because Fisher could have reasonably expected injury to result from his intentional act, the policy exclusion applies. Hence, plaintiff does not have a duty to indemnify Fisher.
This is true despite Fisher's convictions for felonious assault and negligent discharge of a firearm in connection with the shooting. During the hearing on plaintiff's motion for summary disposition, the parties' attorneys commented on Fisher's testimony in the criminal trial and the resulting convictions. However, their comments were unclear regarding Fisher's version of the shooting. Moreover, no documentary evidence was submitted or filed by Spicer or Maloney setting forth facts to establish a genuine issue of material fact. MCR 2.116(G)(4). Finally, Spicer states on appeal that Fisher obviously intended to shoot the shotgun.
See Groshek, supra, p 712; Transamerica Ins Co v Anderson, 159 Mich. App. 441, 445; 407 N.W.2d 27 (1987); Yother v McCrimmon, 147 Mich. App. 130, 134; 383 N.W.2d 126 (1985) (evidence of criminal convictions can be used in declaratory action to determine whether the insurer has a duty to defend the insured in the underlying action).
Although we conclude that plaintiff does not have a duty to indemnify Fisher, we decline to consider whether it has a duty to defend him because the issue is raised by Spicer, not Fisher. An insurer's duty to defend a lawsuit brought against its insured is separate and severable from its duty to indemnify the insured for liability imposed after trial. State Farm Fire Casualty Co v Huyghe, 144 Mich. App. 341, 345; 375 N.W.2d 442 (1985); Reurink Bros Star Silo, Inc v Maryland Casualty Co, 131 Mich. App. 139, 142; 345 N.W.2d 659 (1983). Fisher's right to have plaintiff defend him is his personal right as the insured; no benefit inures to Spicer or Maloney. Even if we decided that a duty to defend exists, Spicer has no interest or right to that duty and no relief could be granted as to Spicer. Moreover, Fisher has not appealed the default judgment that was entered against him.
Accordingly, we affirm.