This opinion will be unpublished and

may not be cited except as provided by

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







State Farm Mutual Automobile Insurance Company,





Steven Wayne Rasmussen, et al.,



Larry Armstrong, as parent and natural guardian of

Scott J. Armstrong, et al.,



Guidant Elite Insurance Company,



Filed December 4, 2001


Schumacher, Judge

Dissenting, Foley, Judge*


Hennepin County District Court

File No. 002298


Kay Nord Hunt, Reid R. Lindquist, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


Steven Wayne Rasmussen and Julie Rasmussen, 3011 Humboldt Avenue North, Minneapolis, MN 55411 (respondents pro se)


Sharon L. Van Dyck, Paul E. Godlewski, Schwebel, Goetz & Sieben, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for respondents Armstrong)


            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N


In this declaratory judgment action, appellant State Farm Mutual Automobile Insurance Company challenges the district court's determination that it had a duty to defend and indemnify its insured, respondent Steven Wayne Rasmussen,[1] because the incident in which the insured struck Scott J. Armstrong with his motor vehicle was an accident.  State Farm contends that the incident was not an accident because the insured had an intent to injure as a matter of law.  We affirm.


Rasmussen was a long-time newspaper carrier for the Star Tribune.  Early on Sunday morning on November 29, 1998, while it was still dark, he was delivering papers on his route, parking in the customer's driveway or the street and then leaving his vehicle to make the delivery.  One of his customers was the Johnson family, whose residence was near the entrance of a cul-de-sac.

            On two earlier occasions, Bryan Johnson, a high school student, had played practical jokes on Rasmussen while he was delivering the newspaper to the Johnson residence.  On the first occasion, Johnson accused Rasmussen of stealing papers and threatened to call the police.  On the second occasion, Johnson ran at Rasmussen's vehicle while he had a mask over his face.

            On the date in question, Armstrong, another high school student and a friend of Bryan Johnson, spent the night at the Johnson residence.  At about 5:00 a.m., the two young men left through the back door.  They walked around the side of the house so that Johnson could smoke a cigarette, when they saw Rasmussen drive his Ford Ranger into the driveway of the Johnson residence to deliver the Sunday paper.  As Rasmussen was backing out, he saw the two young men wearing dark clothes walk out from behind pine trees on the Johnson property.  Rasmussen testified that when he first saw Johnson and Armstrong, they were yelling and screaming at him.  He felt frightened and threatened and believed the situation could escalate to a physical altercation.  The district court explicitly credited his testimony.

            Rasmussen drove into the cul-de-sac and continued to deliver newspapers.  After finishing, he went back out toward the Johnson residence, driving in the middle of the road.  There were no streetlights on the road, it was cloudy and dark, and rain had just fallen.  Rasmussen testified that he then saw Johnson and Armstrong standing on the opposite side of the road from the Johnson home, just in front of his next delivery stop.  He testified that as he approached the two young men, he was afraid of what would happen.

            As Rasmussen approached Johnson and Armstrong, he sped up slightly and swerved his vehicle toward them.  The front left corner of his vehicle struck Armstrong, who flew up onto the hood, cracked the windshield with his chin, and then landed on the ground on the left side of the vehicle.  Rasmussen immediately stopped his vehicle, went into reverse, and then continued to deliver his newspapers.  Johnson testified that after Rasmussen collided into Armstrong, he heard brakes squealing and Rasmussen appeared to be shocked and stunned by the collision.

            After finishing his deliveries, Rasmussen returned to the newspaper depot.  When he was informed that the police were looking for him, he went back to the accident scene.  Rasmussen cooperated with police and consistently told them that the two juveniles had scared him, that he had swerved at them to scare them away, and that he did not intend to hit anyone.[2]  At the hearing, he also testified he intended to swerve his vehicle at the young men to scare them away, but that he did not intend to hit either of the young men.

            The district court determined that, based on the totality of the evidence, Rasmussen did not intend to hit anyone or collide with anyone, but merely intended to swerve toward the juveniles to scare them.  The court ruled that Armstrong's injuries were caused by an accident arising out of the use of an automobile within the meaning of Rasmussen's insurance policy and that State Farm had a duty to defend and indemnify Rasmussen for any damages.  This appeal followed.


            An appellate court will review the interpretation of an insurance policy de novo.  Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn. 2001).  The words in an insurance contract will "be given their natural and ordinary meaning and any ambiguity regarding coverage is construed in favor of the insured."  Id. (citation omitted).

The insurance policy at issue here provides for liability coverage as follows:

            We will:


            1.         pay damages which an insured becomes legally liable to pay because of:


                        a.         bodily injury to others, and


            b.         damage to or destruction of property including loss of its use,


                        caused by accident resulting from the ownership, maintenance or use of your car; and


            2.         defend any suit against an insured for damages payable under 1. above with the attorneys hired and paid by us.


The term "accident" is not defined in the policy.

            In Walser, the supreme court very recently reviewed the issues that we must examine in this case.  The court reiterated that an accident is "an unexpected, unforeseen, or undesigned happening or consequence.Id. at 611.  In evaluating whether an incident is an accident for purposes of insurance coverage, the court explained that the relevant inquiry is not whether the conduct was intentional, but whether the actor had a specific intent to cause injury.  Id. at 612.  The court nonetheless recognized that there may be circumstances under which a court may infer an intent to injure as a matter of law, even when a specific intent to injure is absent.  Id. at 613.  This may occur

when the insured acted in a calculated and remorseless manner or when the insured's actions were such that the insured knew or should have known that a harm was substantially certain to result from the insured's conduct.


Id. (citations omitted).

The court cautioned that harm that was merely a "natural and probable consequence" of the insured's actions was insufficient to infer intent to injure.  Id. (quotation omitted).  This determination is not subject to a bright-line rule, but instead must be made on a "case by case factual inquiry."  Id. (quotation omitted).

In Walser, the supreme court cited examples of cases in which intent to injure was inferred as a matter of law.  Id. at 614.  Some involved the use of guns, such as when the insured shot a rifle loaded with armor-piercing bullets at a guard's truck known to be occupied, Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570, 573-74 (Minn. 1981), or where the insureds armed themselves with loaded weapons to facilitate an armed robbery, Cont'l W. Ins. Co. v. Toal, 309 Minn. 169, 177, 244 N.W.2d 121, 126 (1976).  The court also cited examples of sexual contact in which the insured knew or should have known that he had herpes and that there was a high probability he could infect his partner.  R.W. v. T.F., 528 N.W.2d 869, 873 (Minn. 1995).

State Farm contends that the motor vehicle was a dangerous instrumentality, and that when Rasmussen swerved toward the two juveniles, he demonstrated an intent to injure as a matter of law.  The district court found that it was dark in the early morning hours when the collision occurred, Rasmussen was shocked by the collision, and he had no intent to collide with or injure anyone.  This example is not like a robbery that was "well planned," when the insured knew "someone might well be injured or killed" and when the acts were "of such a calculated and remorseless character" that intent to injure should be inferred as a matter of law.  Walser, 628 N.W.2d at 614 (citation omitted).  To the contrary, the act here was unplanned and impulsive, arising out of fear rather than calculation.  Under the circumstances presented here, there was no intent to injure as a matter of law.




FOLEY, Judge (dissenting)

            I respectfully dissent.  The supreme court has very recently stated in no uncertain terms that

            the inference of intent to injure as a matter of law arises when the insured acted in a calculated and remorseless manner or when the insured’s actions were such that the insured knew or should have known that a harm was substantially certain to result from the insured’s conduct.


Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 613 (Minn. 2001) (citation omitted).  The supreme court had no difficulty finding intent to injure as a matter of law where the insured fired a rifle at an occupied guard’s truck.  Woida v. N. Star Mut. Ins. Co., 306 N.W.2d 570, 573-74 (Minn. 1981).  A Ford Ranger driven toward individuals under the circumstances here is just as much a dangerous instrumentality as a loaded gun fired toward another person.  The insured knew or should have known that injury would result and, as a result of his conduct in operating his vehicle, injury did in fact result.  Under these facts, I would find intent to injure as a matter of law.

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

[1]  Pro se respondents Steven and Julie Rasmussen did not file a brief.  When a respondent does not file a brief, the case will be decided on the merits.  Minn. R. Civ. App. P. 142.03.

[2]  Rasmussen later pleaded guilty to second-degree assault.