Iowa Kemper Ins Co
v.
Ryan

Michigan Court of AppealsAug 25, 1988
172 Mich. App. 134 (Mich. Ct. App. 1988)
172 Mich. App. 134431 N.W.2d 434

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Docket No. 103808.

Decided August 25, 1988.

Nill, Kirby, Rockwell Swan, P.C. (by Robert H. Shannon), for plaintiff.

Barbier, Petersmarck, Tolleson, Mead, Paige Carlin, P.C. (by James A. Callahan), for defendant Fetterman.

Before: BEASLEY, P.J., and SAWYER and T.J. FOLEY, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


PER CURIAM.

Defendant, Joseph Fetterman, appeals as of right from a July 22, 1987, order granting summary disposition to plaintiff, Iowa Kemper Insurance Company. Plaintiff, the insurer of defendant Michael Ryan, a linebacker on the Central Michigan University football team, had brought the within action seeking a declaratory judgment that it had no obligation under a homeowner's policy to defend or indemnify Ryan for liability arising out of a lawsuit filed against him by Fetterman.

In the underlying action, Fetterman alleged personal injuries resulting from an assault and battery perpetrated by Ryan and others. The complaint alleged:

6. That on or about March 7, 1986, at approximately 11:30 the Plaintiff was a pedestrian lawfully upon Crawford Road, at or near its intersection with Broomfield Road, in the City of Mt. Pleasant, County of Isabella, when he was assaulted and battered against his will by the Defendants herein, intentionally, willfully and wantonly, or negligently without provocation including, but not limited to being punched, kicked, pummelled, slapped and other means of physical contact after the Defendants had exited an automobile in which they were passengers.

7. That immediately prior to the Plaintiff being battered by the Defendants herein, he was placed in fear of being physically battered by the Defendants, they having the present wherewithal to accomplish the same.

8. That after said incident occurred, and approximately 200 yards further down Crawford Road, the Plaintiff again was assaulted and battered by the same Defendants without provocation after the Plaintiff had been placed in fear of being physically struck by the Defendants, they having the present wherewithal to accomplish the same.

9. That although the acts of the Defendants herein were intended by the Defendants, the injuries which were sustained by the Plaintiff were not intended.

In the within action, plaintiff claimed that Fetterman's lawsuit fell outside the coverage provided by Ryan's insurance policy. The policy provided:

This policy does not apply:

1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:

* * *

f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.

The trial court granted plaintiff's motion for summary disposition based upon MCR 2.116(C)(10), for lack of a genuine issue of material fact. The court held that Fetterman's injuries either were intended or expected from the standpoint of the insured.

On appeal, defendant Fetterman argues that the trial court erred because a genuine issue of material fact existed. We disagree. A motion for summary disposition pursuant to MCR 2.116 (C)(10) tests the factual support for a claim. After considering the pleadings, affidavits, depositions and other available evidence, the court must be satisfied that the claim asserted cannot be supported at trial because of some deficiency which cannot be overcome. Giving the benefit of all reasonable doubt to the opposing party, the court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ.

Metropolitan Life Ins Co v Reist, 167 Mich. App. 112, 118; 421 N.W.2d 592 (1988).

Rizzo v Kretschmer, 389 Mich. 363, 371; 207 N.W.2d 316 (1973).

Weeks v Bd of Trustees, City of Detroit General Retirement System, 160 Mich. App. 81, 84; 408 N.W.2d 109 (1987).

The allegations contained in the underlying complaint generally determine an insurer's duty to defend. However, mere allegations of negligence in a transparent attempt to trigger insurance coverage by characterizing intentionally tortious conduct as negligent will not persuade the court to impose a duty to defend.

Frankenmuth Mutual Ins Co v Beyer, 153 Mich. App. 118, 122; 395 N.W.2d 36 (1986).

Linebaugh v Berdish, 144 Mich. App. 750; 376 N.W.2d 400 (1985).

Here, the trial court granted summary disposition after reviewing the depositions of Ryan, Fetterman and several other witnesses to the pair of fights. All of the depositions, including Fetterman's own, indicated that Ryan intentionally and repeatedly struck his victim. The only significant difference between the several versions of the story was about who was the aggressor.

Defendant Fetterman makes much of the fact that Ryan had been drinking and that, at one point in his deposition, Ryan stated that he did not intend to hit his victim. However, nothing else in the record indicated that Ryan's striking Fetterman was anything but volitional. Ryan's bare statement that he did not intend to hit Fetterman contradicted every other shred of evidence. Ryan himself maintained that he struck Fetterman in self-defense. Fetterman stated that it was "raining fists." This statement belied Fetterman's claim of negligence on Ryan's part. Bodily injury is "expected or intended" from the standpoint of the insured if it is the natural and foreseeable result of the insured's intentional act.

See Yother v McCrimmon, 147 Mich. App. 130; 383 N.W.2d 126 (1985).

Based upon the record before it, the trial court properly concluded that no factual development was possible from which reasonable minds could find anything but injuries to Fetterman "expected or intended from the standpoint of the insured."

Affirmed.