This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






American Family Insurance Company,


Andy Walser,

Matthew Jewison, a minor by and through

Gary Jewison, his parent and natural guardian, et al.,

Jason Shoemaker,

Blue Cross and Blue Shie
ld of Minnesota,



Filed August 22, 2000


Crippen, Judge


Blue Earth County District Court

File No. C8982198


Steven J. Hovey, Hoversten, Johnson, Beckmann, Wellmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN 55912 (for appellant)


Philip R. Reitan, Reitan Law Office, 142 South Riverfront Drive, P.O. Box 142, Mankato, MN 56002-0142 (for respondent Jewison)


Jane McMahon, 5555 Blue Cross Road, P.O. Box 64560, St. Paul, MN 55164-0560 (for respondent Blue Cross)


            Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N




            Respondent Matthew Jewison contends that his injuries, which occurred when he was pulled down while hanging by his hands from the rim of a basketball hoop, were the consequence of an “accident” and as such were covered by a homeowners’ insurance policy issued by appellant American Family Insurance.  This holding is precluded by precedent, and we reverse the trial court’s judgment declaring coverage for the injuries.


            Appellant American Family Insurance wrote a policy of insurance covering respondent Andy Walser’s parents. Walser and another boy were engaged with respondent Jewison in horseplay in their school gym.  While Jewison was hanging by his hands from the rim of a basketball hoop, the other two boys pulled him down from the rim.  Jewison fell to the floor and injured his hand.

            Appellant initiated a declaratory judgment proceeding, arguing there was no coverage under the Walser policy because Jewison’s injuries were not due to an “accident.”  The trial court concluded that appellant’s coverage for “accidents” extended to an incident where Jewison was intentionally pulled from the basketball rim but suffered an unexpected injury.



            The interpretation of an insurance policy, including whether a legal duty to defend or indemnify exists, is a question of law which this court reviews de novo.  Metropolitan Property and Cas. Ins. Co. and Affiliates v. Miller, 589 N.W.2d 297, 299 (Minn. 1999); Auto-Owners Ins. Co. v. Todd, 547 N.W.2d 696, 698 (Minn. 1996).  In reviewing a case tried by the court without a jury, this court is “limited to determining whether the trial court’s findings are clearly erroneous and whether it erred in its conclusions of law.”  Thuma v. Kroschel, 506 N.W.2d 14, 18 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993) (citations omitted).

The insurance policy issued by appellant American Family to the Walsers provided liability coverage in the portion of the policy identified as Section II - Description of Liability and Medical Expense Coverages.  This coverage is confined to injuries or damages from an “occurrence.”  The term “occurrence” is defined as an “accident.”

            It is not disputed in this case that the nature of the incident must be viewed from the perspective of the boys who pulled respondent Jewison from the basket ball rim.  See Nygaard v. State Farm Ins. Co., 591 N.W.2d 738, 741 (Minn. App. 1999) (examining accident question from perspective of insured tortfeasor for purposes of her liability insurance), review denied (Minn. June 29, 1999).  Respondent asserts that there was an accident because the evidence does not indicate that the boys who pulled him down intended to hurt him. 

Respondent’s argument has been previously rejected by this court, and we follow that precedent.  See Gilman v. State Farm Fire & Cas. Co., 526 N.W.2d 378, 383 (Minn. App. 1995).  In Gilman, we determined that when the injury is precipitated by a wrongful act, the “proper analysis requires the fact-finder to determine whether the wrongful or tortious event was an accident.”  Id.  In Gilman, the insured tackled an acquaintance and claimed he did not intend to break the man’s leg when he tackled him.  See id. at 380.  Because the tackle was not an accident, there was no accident under the policy and thus no coverage.  Id. at 383.  This is indistinguishable from the situation in this case, where respondent’s fall was deliberately produced by the act of pulling him, despite the fact that the actual injury to his hand was not necessarily intended.

            Respondent, addressing the Gilman decision, suggests that there was no wrongful act in this case but rather only innocent “horseplay.”  He also suggests that no tort occurred until Jewison’s hand was injured.  He asserts as an analogy the examination of an injury that could follow from a player’s legitimate striking of a golf ball.  These arguments are unpersuasive.  Jewison was wrongfully pulled from the basketball rim to the ground.  However playful the act, it constituted an intentional tort, and no matter what specific injury resulted from the conduct.[1]  See, e.g., Johnson v. Sampson, 167 Minn. 203, 205, 208 N.W. 814, 815 (1926) (actual physical harm is not an essential element of assault).

Respondent contends the case is governed by the Milbank decision, which held that an accident includes “all negligently caused injury, provided such injury was not intentional.”  Milbank Ins. Co. v. B.L.G., 484 N.W.2d 52, 58 (Minn. App. 1992), review denied (Minn. Jul. 16, 1992) (citation omitted).  The Milbank decision, also distinguished in Gilman, 526 N.W. 2d at 382-83, deals with different circumstances, where the injury was not a consequence of an intentional tort but rather was the consequence of negligent transmission of an illness in the course of consensual sexual contact.  Milbank, 484 N.W. 2d at 58. 

As appellant contends, Gilman is especially persuasive in the circumstances of a coverage question involving a search for the existence of an “occurrence.”[2]  It is evident the policy calls for evaluation of the event, not the consequences of the event.

Gilman governs our decision in this case, where a wrongful act was the causative event.  The causative event in this instance was the intentional pulling of respondent Jewison from his intended hanging position.  Because this causative event was not an accident, there was no occurrence under the terms of the policy.


[1] Contrary to the trial court, we also observe that intent to injure might be inferred as a matter of law in the circumstances of this case, where injury, however mild, was sure to occur where respondent Jewison was forcefully pulled to the ground.  See, e.g., Fireman’s Fund Ins. Co. v. Hill, 314 N.W.2d 834, 835 (Minn. 1982) (inferring intent to harm where insured had sexual contact with a child).  Respondent contends this case is more akin to the German Mutual case, where this court refused to infer an intent to harm where insured exploded an illegal pipe bomb and had earlier exploded similar bombs without incident.  See German Mut. Ins. Co. v. Yeager, 554 N.W.2d 116, 118 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996).  But German dealt with a situation where there was little reason to suspect that the explosion of the bombs would touch the lives of anyone.  To the contrary, in the circumstances of this case, it was certain that Jewison would be forced to the ground if he were pulled down from the basketball hoop.

[2] As appellant asserts for the circumstances of this case, we needn’t address the comparability of similar issues arising under an exclusion and “injury that is expected or intended.”  Rather, we deal here with a coverage issue that focuses upon the causative event of injuries, the “occurrence” which produces them.  Our analysis in this case focuses only upon coverage, not exclusions from coverage.