This opinion will be unpublished and

 may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1899

 

Tower Insurance Company,

Respondent,

 

vs.

 

Sven Roy Pearson,

Defendant,

 

Amy D. Krueger,

Appellant,

 

Brad Deschampe,

Defendant,

 

Shawn David Alvar, and Jacquelyn Lee Alvar,

Appellants,

 

Ford Pearson, et al.,

Defendants.

 

Filed July 24, 2001

Affirmed

Toussaint, Chief Judge

 

St. Louis County District Court

File No. C100600023

 

James J. Galman, Karen Ruth Cote, Joseph E. Flynn, Jardine, Logan & O’Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

 

Sven Roy Pearson, 4602 Rice Lake Dam Road, Duluth, MN 55811 (pro se defendant)

 

James Barry Peterson, Falsani, Balmer, Peterson & Quinn, 1200 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant Krueger)

 

Craig S. Hunter, Hunter Law Office, 332 West Superior Street, Suite 425, Duluth, MN 55802 (for Ford and Nancy Pearson)

 

Brad Deschampe, c/o St. Louis County District Court Administrator, 100 North Fifth Avenue West, Duluth, MN 55802 (pro se defendant)

 

Michael Orman, Farhan Hassan, Nancy C. Von Seggem, Orman & Nord, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for appellant Alvar)

 

Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, Huspeni, Judge. *

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, ChiefJudge

 

            Respondent insurer brought a declaratory judgment action, seeking a determination that it had no duty to defend or indemnify its insured for claims arising from an incident.  After a trial, the district court granted respondent’s motion for a directed verdict.  Appellants contend that the directed verdict was contrary to an earlier order denying summary judgment and argue that the district court improperly resolved credibility issues and made inferences in favor of respondent.  Appellants also contend that the district court erred as a matter of law in determining that the intentional act exclusion in the policy applied, because they were unaware that their driving would pose a danger to the victims.  Appellant driver also contends that he was entitled to assert self-defense and instinctive act.  Because the record supports the district court’s decision, and the court did not err in it’s application of the law, we affirm.

Respondent Tower Insurance Company brought suit against Sven Pearson, Amy Kueger, Brad Deschampe, Shawn Alvar, and Jacquelyn Alvar seeking a declaratory judgment that it has no duty to defend Sven Pearson and Brad Deschampe on personal injury claims brought by Amy Krueger, Shawn Alvar, and Jacquelyn Alvar.  Ford Pearson and Sandy Pearson, Sven Pearson’s parents, were permitted to intervene.  Ford and Sandy Pearson are the owners of the vehicle that Sven Pearson drove, and are the policyholders under the Tower Insurance policy.  On September 6, 2000, the district court directed a verdict in favor of Tower insurance. 

FACTS

            Shawn and Jacquelyn Alvar hosted a “wild game feed” at their home on September 7, 1998.  There were approximately 15 to 20 guests at the party.  The guests included Grant Williams, Chris Smith, and Amy Krueger.  As the party was ending, Williams and Smith left the Alvar residence and had an altercation with Sven Pearson and Brad Deschampe.[1]  Following the altercation, Williams and Smith returned to the Alvar residence and discussed the incident with the remaining party attendees.

            Pearson followed Williams and Smith to the Alvar residence.  Deschampe was riding in the front passenger seat of Pearson’s car and Joseph Saari was in the back seat, directly behind Pearson.  Pearson entered the Alvar driveway, and waited near the end of the driveway.

            Shawn Alvar and Amy Krueger walked to the Pearson vehicle.  Shawn Alvar stood near the rear left passenger door, next to Saari.  Amy Krueger positioned herself by the driver’s door, near Pearson.  The events that occurred thereafter are somewhat in dispute.[2]  The undisputed facts are as follows: Deschampe grabbed Krueger’s arms. Deschampe held Krueger’s arms in front of Pearson.   Saari grabbed Shawn Alvar in a similar manner, holding him to the side of the vehicle.  The vehicle then began to move, dragging both Krueger and Alvar.  Deschampe released Krueger after the vehicle moved a few hundred yards.  Pearson eventually stopped the vehicle, and Saari released Alvar.  Pearson, Saari, and Deschampe then exited the vehicle and assaulted Shawn Alvar.  Both Alvar and Krueger sustained multiple injuries.

            Ford and Sandy Pearson’s motor vehicle insurance policy states that Tower Insurance “will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident.”  Sven Pearson was covered under this policy.  The policy does not cover non-accidents or intentional acts.

            Tower Insurance moved for summary judgment.  The district court denied the motion.  Following a three-day trial, the district court granted Tower Insurance’s motion for a directed verdict.  The district court found that “all of the evidence leads this Court to conclude that no reasonable jury could find that the incident complained of was an accident.”  Appellants challenge the district court’s decision.

D E C I S I O N

A directed verdict motion presents a question of law regarding the sufficiency of the evidence to present a fact question for the jury.  Minn. R. Civ. P. 50.01; see Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 405, 408 (Minn. 1998) (reinstating trial court’s directed verdict because evidence presented was insufficient to create question of fact for jury); M.W. Ettinger Transfer & Leasing Co. v. Schaper Mfg., Inc., 494 N.W.2d 29, 34 (Minn. 1992) (finding trial court properly granted directed verdict where insufficient evidence existed to submit negligence claim to jury).

On appeal from a directed verdict, this court “makes an independent assessment of its appropriateness.”  Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), reviewdenied (Minn. Aug. 4, 1992).  A directed verdict should be granted only where it would be the duty of the trial court “to set aside a contrary verdict as manifestly contrary to the evidence” or the law.  Citizen’s Nat’l Bank v. Taylor, 368 N.W.2d 913, 917 (Minn. 1985). In considering a motion for a directed verdict, the trial court must construe the evidence, and all reasonable inferences that can be drawn from that evidence, in the light most favorable to the non-moving party.  Id.

Appellants argued at trial that either the vehicle moved by accident, as the result of Deschampe stepping on the accelerator, or that Pearson moved the vehicle in self-defense.  Appellants also contended that Pearson was unaware that Krueger and Alvar were attached to the vehicle when it started moving.

Tower Insurance argued, and the district court found, that the injuries sustained by Krueger and Alvar were the result of Pearson’s intentional conduct, not an accident. The district court found

[t]hat the testimony given by Defendants Sven Pearson and Brad Deschampe was wholly without credibility.  These men gave conflicting testimony as to each other, and which conflicted greatly with other testimony given under oath in related matters (see plea transcripts).  In addition, their deposition testimony blatantly conflicted with their testimony given at trial.

 

Liability insurance coverage is intended to only provide coverage to an insured for “occurrences arising out of the negligence of parties in automobile liability situations.”  Petersen v. Croft, 447 N.W.2d 903, 905 (Minn. App. 1989).  The intentional act exclusion is intended to prevent parties from being afforded indemnification for intentional acts or risks consciously controlled by them.  Id.  The insurance policy provides coverage for an “auto accident” and excludes coverage for injuries that the insured intentionally caused.  The term “accident” is not defined in the language of the policy.  However, the supreme court has defined accident as “a happening that is unexpected and unintended.”  McIntosh v. State Farm Mut. Auto Ins. Co., 488 N.W.2d 476, 478 (Minn. 1992) (citing Weiss v. State Farm Mut. Cas. Co., 64 N.W.2d 366, 368 (Minn. 1954)). The intent that may trigger the intentional injury exclusion can be established by proof of actual intent or may be inferred when “the character of an act is such that intention to inflict injury can be inferred as a matter of law.”  Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570,573 (Minn. 1981).  Whether an incident is an accident should be viewed from the perspective of the tortfeasor.  McIntosh, 488 N.W.2d at 479.

Pearson testified that as Deschampe reached over to hold onto Krueger, Pearson stepped on the gas, causing the vehicle to move.  Pearson testified as follows:

Actually what—what happened was like [Krueger] had * * * her arms in the window tryin’ to get the keys.  And [Deschampe] was reaching way over trying to grab her.  Her arms were already in the car.  So he [Deschampe] just reached over and grabbed her and stepped on the gas * * *

 

Deschampe could neither confirm nor deny this account of the events, because at the time of the incident, he was under the influence of alcohol and psychedelic mushrooms, and does not recall the incident in great detail.  

The district court’s conclusion that Pearson’s account is wholly incredible, such that no reasonable jury would accept his version of the night’s events, is supported by the record.   Pearson has testified under oath on at least four occasions regarding the incident.[3]  Pearson’s account of the incident has varied greatly each time his has offered sworn testimony.  Although his trial testimony is consistent with one prior deposition, it is exactly opposite from his testimony at his guilty plea hearing.  At his guilty plea, Pearson admitted that he was the driver of the car.  Tower Insurance impeached Pearson’s testimony at trial, and presented the inconsistencies to the jury.  Pearson’s ambiguous trial testimony coupled with his impeachment by prior testimony the factual basis established in the criminal case, establishes, the existence of intentional conduct and refutes the claims of negligence.

Appellants also argue that Krueger’s and Alvar’s injuries were the result of an accident because Pearson was unaware that Krueger and Alvar were still attached to vehicle when it began to move. The uncontroverted evidence from all the witnesses and the physical facts lead only to the conclusion that Pearson knew Krueger was still attached to the vehicle as he drove away.  Testimony from all the witnesses revealed that Deschampe pulled Krueger into the car directly in front of Pearson.  Pearson admitted that he saw Deschampe grab onto Krueger.  The district court need not give the jury a fact issue when no real fact issue has been created by reliable, trustworthy, and credible evidence.  Spensley v. Oliver Iron Mining Co., 216 Minn. 451, 462, 13 N.W.2d 425, 430 (1944); Clafin 487 N.W.2d at 247.[4]

Because we conclude that Tower Insurance met its burden of proving that Pearson’s conduct was intentional and therefore excluded under the policy, we affirm the district court’s decision of granting a directed verdict.

Finally, appellants argue that the district court erred in finding that the parties did not create an issue whether Pearson acted in self-defense.  The trier of fact may conclude that an insured did not have the requisite intent (to trigger an intentional injury exclusion), where the insured acted instinctively or in self-defense.  Smith v. Senst, 313 N.W.2d 202, 203-04 (Minn. 1981).  Pearson alleged that he was trying to escape an assault at the time of the incident, but the record does not support that contention. 

Initially, Pearson testified that a group of 15 or 20 people was approaching his parked vehicle.  However, Pearson later admitted that he did not look behind the car, and did not know if anyone was approaching with two-by-fours.  Williams, Alvar, and Krueger all testified that they were approaching the vehicle calmly, while talking to the vehicle occupants.  Because the record supports the district court’s conclusion that Pearson’s testimony was wholly incredible, we affirm the determination that Pearson did not establish a fact question on self-defense.

Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] The facts surrounding this altercation are in dispute.  However, for purposes of this appeal, the underlying circumstances are not relevant.

 

[2] Pearson testified that (a) Krueger attempted to remove the keys from the ignition; (b) he saw a large group of people coming towards his vehicle armed with two-by-fours; and (c) Alvar punched him in the face. Krueger denies attempting to take Pearson’s keys. Williams testified that there was not a large group of armed individuals approaching the vehicle.  Alvar denies punching Pearson in the face.

 

[3] In addition to his testimony at trial, Pearson provided sworn testimony at two depositions and at a plea hearing on criminal charges brought following this incident.

 

[4] Because Tower Insurance has met its burden of proof that Pearson’s conduct toward Krueger was intentional, the evidence is also sufficient to inferred Pearson’s intentional conduct toward Alvar.  See Peterson v. Croft, 447 N.W.2d 903, 906 (Minn. 1989)(holding that intentional conduct can be inferred from the conduct), review denied (Minn. June 12, 1990).