This opinion will be unpublished and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
Illinois Farmers Insurance Company,
Matthew Klinkhamer, Adam Klinkhamer, and
Michael J. Faber,
Filed May 7, 2002
Ramsey County District Court
File No. C2006754
Roger L. Kramer, Votel, Anderson & McEachron, 444 Cedar Street, Suite 1250, St. Paul, MN 55101 (for respondent)
Emmett D. Dowdal, 995 Wildwood Road, White Bear Lake, MN 55115 (for appellant Matthew Klinkhamer)
Paul Applebaum, The Minnesota Building, 46 East Fourth Street, #1030, St. Paul, MN 55101 (for appellant Adam Klinkhamer)
Jay M. Quam, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402-3397 (for appellant Michael J. Faber)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
Respondent insurer sought a declaration that it has no duty to defend or indemnify appellants Matthew and Adam Klinkhamer, its insureds, on the ground that the conduct that injured appellant Michael J. Faber was an intentional act. Appellants challenge the district court’s grant of summary judgment to respondent, arguing that (1) the existence of an intent to injure is a question for a trier of fact and (2) the Klinkhamers could be liable for negligently precipitating the incident that resulted in Faber’s injury. Because we conclude that there are no genuine issues of material fact and that the district court did not err in its application of the law, we affirm.
Faber was injured after celebrating Halloween in downtown Minneapolis. As he and his friends were about to leave downtown, a person snatched a wig that Faber was wearing as part of his costume. After following the person and exchanging words, Faber retrieved the wig. Seconds later, another person, wearing a white tank top and face paint, confronted Faber, stating, “You f*** with my brother, you f*** with me.” Faber responded, “Whatever, tough guy,” and turned away. As he was turning, the person wearing the tank top struck Faber in the face with a fist.
The Klinkhamers were also in downtown Minneapolis, and both were wearing white tank tops and face paint. After police arrived, Adam Klinkhamer was arrested for assaulting Faber. The charge against Adam Klinkhamer was dismissed after Faber identified Matthew Klinkhamer as the person who struck him.
Faber sued the Klinkhamers for personal injury, alleging that they were jointly liable for assaulting him and for negligently participating in activities that were likely to lead to his injury. Matthew and Adam Klinkhamer denied the allegations and tendered their defenses to respondent Illinois Farmers Insurance Company (Illinois Farmers), which insured them, respectively, under a homeowner’s policy and a townhouse-and-condominium policy. Illinois Farmers accepted the tenders of defense subject to a reservation of its right to deny any obligation to defend or indemnify.
After Faber and the Klinkhamers were deposed, Illinois Farmers brought a declaratory-judgment action against them and moved for summary judgment on the ground that the intentional-act exclusions in the insurance policies excluded coverage because the person who struck Faber intended to injure him as a matter of law.
The district court granted Illinois Farmers’ motion, concluding that “there was an intent to injure as a matter of law” and that, because both insurance policies contained an intentional-act exclusion, the “question as to whether it was Adam or Matthew Klinkhamer who struck the blow” was not a material fact for the purpose of the motion for summary judgment. This appeal follows.
D E C I S I O N
On appeal from summary judgment, this court determines (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. Progressive Specialty Ins. Co. v. Widness ex rel. Widness, 635 N.W.2d 516, 518 (Minn. 2001). This court views the evidence in the light most favorable to the parties against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
An insurer has a duty to defend an insured when any part of the claim against the insured is arguably within the scope of the insurance policy. Metro. Prop. & Cas. Ins. Co. & Affiliates v. Miller, 589 N.W.2d 297, 299 (Minn. 1999). An insurer seeking to escape its duty to defend must show that all parts of the claim fall clearly outside the scope of coverage. Id. Whether an insurer has a duty to defend is a question of law, which this court reviews de novo. Id.
The Klinkhamers’ policies with Illinois Farmers provide liability coverage for bodily injury unless the injury was intentional. For an insured to be excluded from liability coverage under an intentional-act exclusion, the insured must have specifically intended to cause injury. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 610-11 (Minn. 2001). 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. Id. at 613. A court may infer an intent to injure as a matter of law 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). But when an insured’s actions are “more in the nature of an instinctive reflex or a sudden impulsive defensive reaction to a provocative situation,” the existence of an intent to injure is a question for a trier of fact. See Am. Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 421 (Minn. 1987).
Appellants argue that the circumstances surrounding Faber’s injury were such that a trier of fact could find that the person who struck Faber was reacting to a provocative situation. They point to evidence that (1) both Faber and the person who took the wig “fluffed up” their chests; (2) the person who confronted Faber stated, “You f*** with my brother, you f*** with me”; (3) Faber was struck only once; and (4) Faber’s friends may have been arriving to help. On these facts, appellants contend, a trier of fact could reasonably find that a confrontational atmosphere existed and that the person who struck Faber acted reflexively to a perceived threat or in self-defense.
But the undisputed record shows that when Faber was struck he posed no threat and had abandoned any confrontation that occurred. After Faber retrieved his wig and the person in the white tank top confronted him, he responded, “Whatever, tough guy,” in a normal voice and without raising his hands, and turned away. Faber was then struck in the face with a fist. The punch fractured facial bones and landed with such force that a police officer “observed Faber’s left eye socket and left cheek bone to be severely indented,” which caused the eye “to look as if it was ready to pop out.” Further, there is no evidence that Faber’s friends were threatening anyone.
We conclude that the record shows that the person who struck Faber acted in a “calculated and remorseless manner” in circumstances that do not support a finding that the act was “more in the nature of an instinctive reflex or a sudden impulsive defensive reaction to a provocative situation.” See Walser, 628 N.W.2d at 613; Haarstad v. Graff, 517 N.W.2d 582, 583, 585 (Minn. 1994) (stating that intent to injure existed when insured crossed room and punched person several times in the face, breaking his jaw); Farmers Ins. Group v. Hastings, 366 N.W.2d 293, 293-94 (Minn. 1985) (stating that intent to injure existed when insured suddenly and spontaneously struck friend in face “just to shut him up”). The district court did not err in determining that the person who struck Faber did so with an intent to injure as a matter of law.
Appellants also contend that summary judgment is precluded because there is a factual dispute as to the identity of the person who struck Faber. Faber asserts that Matthew Klinkhamer struck him, and both Klinkhamers deny being involved in any altercation with Faber. But the relevant inquiry here is the scope of liability coverage provided by the insurance policies at issue, which do not include coverage for injuries resulting from intentional acts. See Miller, 589 N.W.2d at 299. Because Faber’s injury was the result of an intentional act, the Klinkhamers’ policies with Illinois Farmers do not provide coverage. Without coverage, Illinois Farmers has no duty to defend. See id. Therefore, the identity of the person who struck Faber is not a material fact in this declaratory-judgment action, and summary judgment is not precluded on this ground.
Appellants argue that summary judgment is precluded because a trier of fact could find that Matthew or Adam Klinkhamer “was engaged in what he thought was relatively harmless taunting, unknowingly leading to violent intervention by his brother” or that they acted in a way that “increased the general level of hostility in the area, unknowingly inciting the incident” in which Faber was injured. Thus, appellants contend, a trier of fact could find the Klinkhamers liable for negligence, which is not excluded from coverage by their policies’ intentional-act exclusions.
To prove negligence, a plaintiff must show that (1) a duty of care existed, (2) the duty was breached, (3) an injury was sustained, and (4) breach of the duty proximately caused the injury. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). But appellants cite no authority for the propositions that a person has a duty to avoid taunting that would lead to “violent intervention” or that increasing the “general level of hostility” can be a proximate cause of an injury that was the result of an intentional act. We therefore do not address appellants’ argument. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegation unsupported by legal analysis or citation).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.