This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed June 20, 2000
Reversed and remanded
Kalitowski, Judge, dissenting
Carver County District Court
File No. C7-99-1413
Timothy J. Leer, Johnson & Condon, P.A., 7235 Ohms Lane, Minneapolis, MN 55439-2152 (for respondent Nationwide Insurance)
Paul Downes, D. Scott Dunham, Park Place East, Suite 610, 5775 Wayzata Boulevard, St. Louis Park, MN 55416 (for appellant)
James Piegat, 5421 Zumbra Drive, Victoria, MN 55331 (pro se respondent)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.*
Respondent Nationwide Insurance Company (Nationwide) brought this declaratory judgment action against its insured, respondent James Piegat, and against appellant Leigh Harrod, seeking a declaration that Piegat’s actions in pushing Harrod are excluded under the intentional act exclusion of Piegat’s homeowner’s policy and that it has no duty to defend or indemnify Piegat.
The district court granted summary judgment to Nationwide, and Harrod appeals. Because we cannot conclude, as a matter of law, that the nature and circumstances of Piegat’s actions were such that harm was substantially certain to result, we reverse and remand.
To be excluded as an intentional act, an insured must intend the harm itself, not merely the act that caused the harm. R.W. v. T.F., 528 N.W.2d 869, 872 (Minn. 1995). The necessary intent may be established either by proving an insured’s actual intent to injure or by inferring such intent as a matter of law. State Farm Fire & Cas. Co. v. Wicka, 474 N.W.2d 324, 329 (Minn. 1991). An inference of intent may arise “when the nature and circumstances of the insured’s act were such that harm was substantially certain to result.” Id. (citations omitted).
“The determination to infer intent as a matter of law results from a case by case factual inquiry, not a bright line rule of law”; thus, intent is not inferred any time an insured commits an intentional tort or even a criminal act. R.W., 528 N.W.2d at 873 (inferring intent to injure in action alleging negligence, where jury found insured knew or should have known he had herpes and could transmit disease through unprotected sexual intercourse); see Continental W. Ins. Co. v. Toal, 309 Minn. 169, 175, 244 N.W.2d 121, 125 (1976) (“[T]he presumption in tort and criminal law that a person intends the natural and probable consequences of his intentional acts has no application to the interpretation of terms used in insurance contracts.”). In cases involving assaults, intent to injure has been inferred when an insured’s actions qualify as “vicious[ ]” and “unprovoked,” “wanton and malicious,” or when “the injury * * * was intended but its severity was not.” Haarstad v. Graff, 517 N.W.2d 582, 585 (Minn. 1994); American Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 422 (Minn. 1987); Hartford Fire Ins. Co. v. Wagner, 296 Minn. 510, 511, 207 N.W.2d 354, 355 (1973). These types of cases generally involve an insured punching, stabbing, or shooting another person. See, e.g., Graff, 517 N.W.2d at 585 (no duty to defend insured who, after discovering girlfriend in bed with another man, crossed room, punched man several times in the face, breaking his jaw); Farmers Ins. Group v. Hastings, 366 N.W.2d 293, 293-94 (Minn. 1985) (during argument, insured suddenly and spontaneously struck friend in face “just to shut him up”); Smith v. Senst, 313 N.W.2d 202, 203 (Minn. 1981) (during barroom brawl, insured walked over to another customer, punched him in face, and fractured his jaw); Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570, 573 (Minn. 1981) (insured made plans with several other men to arm themselves with rifles and shoot at truck in which they knew guards were sitting); Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886 (Minn. 1978) (during physical altercation, insured struck plaintiff in head with fist wrapped in leather belt); Economy Fire & Cas. Ins. Co. v. Meyer, 427 N.W.2d 742, 745 (Minn. App. 1988) (inferring intent to injure when insured, after finding girlfriend with another man, grabbed knife, returned to bedroom, and stabbed man in abdomen).
The nature and circumstances surrounding Piegat’s actions, however are not so extreme. On the evening prior to the incident, Harrod started an argument with Piegat about a professional presentation the two had agreed to give. Piegat eventually tired of the argument and went home. The next day, Harrod decided to continue the argument and arrived, unannounced, at Piegat’s home. Harrod admitted that she became “more and more frustrated and visibly angry” while talking to Piegat. She eventually threw a briefcase across the living room, kicked over a stack of magazines, and hit Piegat in the foot as he sat in a chair. Intending to leave, she went over to the top of six stairs that led to Piegat’s front door. For most of the argument, Piegat was sitting in his easy chair, 10 to 12 feet away from the top of the stairs. He asked Harrod to leave several times, but she continued what both parties characterized as a “tongue-lashing.” Piegat testified:
And something happened in me and, well you’re going now, I said internally. That’s it, you’re going now. And I got up and with the intention of removing her from the house. And next thing I know she was at the bottom of the stairs * * * .
Piegat claimed he had little recollection of actually pushing Harrod down the stairs. Harrod stated by affidavit that Piegat came over, grabbed her, and pushed her down the stairs. Harrod claimed that she was “very surprised” that Piegat pushed her and that she did not believe he intended to hurt her.
Given these facts, we cannot conclude as a matter of law that Piegat intended to injure Harrod. Piegat’s actions do not qualify as malicious or vicious. Rather, his actions are more akin to the restaurant patron in Caspersen v. Webber, 298 Minn. 93, 95, 213 N.W.2d 327, 328 (1973), who pushed aside a hatcheck girl in an attempt to get into the checkroom to look for his coat; the highway employee in Farmers Ins. Exch. v. Sipple, 255 N.W.2d 373, 376 (Minn. 1977), who struck a farmer with his hand during an argument as the farmer was advancing toward him; or the airline passenger who hit a baggage clerk with his open hand during a scuffle over a piece of luggage. Brown v. State Auto & Cas. Underwriters, 293 N.W.2d 824-25 (Minn. 1980). In those cases, while the insured acted intentionally or even criminally, the issue of whether the insured actually intended to injure was left to the fact finder.
We therefore reverse the grant of summary judgment to Nationwide and remand for further proceedings.
Reversed and remanded.
KALITOWSKI, Judge (dissenting)
I respectfully dissent. The supreme court has stated:
There are assaults by an insured where reason and commonsense require, from the very nature of the act, an inference that the insured intended his assault to injure the claimant. In such cases, the insured will not be heard to say he did not intend to hurt the person; rather, it will be held as a matter of law that the conduct comes within the intentional act exclusion of a liability policy.
American Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 420-21 (Minn. 1987). The district court properly applied this standard and correctly concluded that Piegat’s conduct of getting up from his chair, walking 10 to 12 feet across his living room and proceeding to “push Harrod down the stairs with such force that it shattered her heel” was neither reflexive nor the result of a sudden impulse and that therefore, an intent to injure should be inferred as a matter of law.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.