This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Illinois Farmers Insurance Company,





William C. Rodgers, as trustee for

the next-of-kin of Daniel Justin Rodgers,

Respondent (C7-02-425),

Appellant (C9-02-426),


Daniel Elliott Besse,

Appellant (C7-02-425),

Respondent (C9-02-426),


Steven Elliott Besse,



Rosalie Ann Besse,



Filed November 19, 2002

Affirmed in part, reversed in part, and remanded

Harten, Judge


Dakota County District Court

File No. C9-01-7326


William S. Sherry, Sherry Law Office, 4855 Dominica Way, Apple Valley, MN 55124-8761 (for appellant/respondent Rodgers)


James R. Peterson, L.A.M.P., 95 Mondale Hall, University of Minnesota, 229-19th Avenue South, Minneapolis, MN 55455 (for appellant/respondent Daniel Besse)


John M. Catron, Carrie L. Hund, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for respondent Illinois Farmers Insurance Company)


Mr. Steven E. Besse, 5665 Lower 182nd Street, Farmington, MN 55024 (respondent pro se)


Ms. Rosalie A. Besse, 17595 Eveleth Avenue South, #285, Farmington, MN 55024 (respondent pro se)


            Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.




            Respondent insurer sought a declaratory judgment that it had no duty to defend and indemnify its insureds in an underlying wrongful death action because its policy excluded coverage for injury caused by an insured’s violation of penal law and for injury caused intentionally by an insured. The district court found that coverage was barred by the exclusion for injury resulting from violation of penal law and granted summary judgment for the insurer.  Because we conclude that the application of that exclusion was not within the reasonable expectations of the insured, we reverse the summary judgment.  But because we agree with the district court’s finding that a genuine issue of material fact exists with regard to the insured’s intent, we affirm the denial of summary judgment on the basis of the intentional acts exclusion.


            On 17 October 1997, Daniel Elliot Besse (Besse), then 17, Daniel Rodgers (Rodgers), then 17, and Justin Chlan (Chlan), then 13, were hunting near Buffalo, Minnesota.  Both Rodgers and Besse had shotguns.  The boys sat down to rest on a hillside near a pond.  Besse was facing the pond with his back against a rock; the butt of his gun rested on the ground and the barrel lay across his lap.

            Rodgers stood up to urinate into the pond.  Besse and Chlan were five to ten feet from each other and approximately ten feet behind Rodgers.  Besse was holding a lit cigarette.  He said to Chlan, “Hey, look at this.  I’ll flick a cigarette at him.”  Rodgers said, “You flick a cigarette at me, I’ll turn around and [urinate] on you.”  Besse flicked the cigarette, and Rodgers turned around.  When Besse attempted to move, his gun discharged; the shot hit Rodgers in the abdomen.  Rodgers later died from his wound. 

Besse was prosecuted and convicted of second-degree manslaughter, and William Rodgers, as trustee for Rodgers’s next of kind, brought a wrongful death action against him.  Besse was covered under his parents’ homeowner’s insurance policy with respondent Illinois Farmers Insurance Co. (Farmers).  The policy excluded coverage for injury resulting from an insured’s violation of penal law and for injury caused intentionally by the insured. 

After defending Besse while reserving its rights, Farmers brought this action seeking a declaration that the exclusions applied and eliminated its duty to defend or indemnify.  The district court granted summary judgment on the basis of the violation of penal law exclusion and also denied summary judgment after finding a genuine issue of material fact with regard to the intentional acts exclusion.  

Both the Besses and Rodgers appealed from the summary judgment; their appeals were consolidated.  Farmers filed a notice of review of the denial of its motion for summary judgment based on the intentional acts exclusion.  


            Construction of an insurance policy involves a question of law.  Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn. 1978).  Insurance contract exclusions are construed strictly against the insurer.  Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 613 (Minn. 2001); SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 314 (Minn. 1995).  An insured’s reasonable expectation of coverage is a question of law to be decided by the court.  Sicoli v. State Farm Mut. Auto. Ins. Co., 464 N.W.2d 300, 303 (Minn. App. 1990). 

1.         Violation of Penal Law Exclusion

            The policy provided:

We do not cover * * * personal injury caused by a violation of penal law or ordinance committed by or with the knowledge of consent of any insured.


Appellants argue that the term “penal law” is ambiguous.  We find no Minnesota law construing this term in the context of an insurance policy exclusion, so we look to American Family Mutual Insurance Co. v. Hadley, 648 N.W.2d 769 (Neb. 2002) (construing the identical provision).

            The [insureds] argue that the violation of law exclusion * * * is ambiguous because of its reference to the term “penal law” * * * .  * * *  We disagree.  The word “penal” is defined as “of, pertaining to, or involving punishment, as for crimes or offenses.”  Webster’s Encyclopedic Unabridged Dictionary of the English Language 1065 (1994).  Therefore, “penal law” is synonymous with “criminal law” and is both easily understandable and unambiguous.


Id. at 781.  Several other jurisdictions have considered the term, and none have found it ambiguous.  See, e.g., N. Sec. Ins. Co. v. Perron, 777 A.2d 151, 166 (Vt. 2001) (construing “violation of a penal law” exclusion and holding that it does not apply to juvenile delinquency adjudication); Nodak Mut. Ins. Co. v. Heim, 559 N.W.2d 846, 851 (N.D. 1997) (holding that, when policy excludes “coverage for ‘personal injury’ caused by a violation of penal laws by the insured and for ‘bodily injury’ intended by the insured,” it excludes coverage for intentional acts by the insured); Mroz v. Smith, 617 A.2d 1259, 1261 (N.J. Super. Ct. App. Div. 1992) (applying exclusion to conclude that “[i]t is clear that the policy extends no coverage for a violation of penal laws”); Studley v. Benicia Unified Sch. Dist., 281 Cal. Rptr. 631, 633-34 (Cal. Ct. App. 1991) (noting that “violation of penal law” exclusion might be relevant but not reaching issue of its application), review denied (Cal. 21 Aug. 1991).

            But determining that the exclusion is not ambiguous is only the first step in determining whether it applies.  See Tower Ins. Co. v. Judge, 840 F. Supp. 679, 691 (D. Minn. 1993) (if the literal terms of the exclusion apply, court must decide whether there is sufficient evidence that a criminal act occurred and, if there is, “whether the exclusion does not apply because it is in conflict with the reasonable expectations of the parties”).  In Tower, the court found sufficient evidence that the insured, a 19-year-old man whose act caused the death of his friend, had “committed an unintentional criminal act.”  Id. at 692.  The same is true here: Besse was convicted of second-degree manslaughter.  Tower goes on to reason:

The last issue is whether the criminal act exclusion should be enforced in this case.  * * * The terms of an insurance policy should be construed according to what a reasonable person in the position of the insured would have understood the words to mean rather than what the insurer intended the language to mean.


In Atwater Creamery Co. v. Western Nat’l Mutual Ins. Co., 366 N.W.2d 271 (Minn. 1985), the Minnesota Supreme Court adopted the reasonable expectations doctrine.  In Atwater Creamery, the court held that because of unequal bargaining power and a lack of expertise on the part of insureds, the objectively reasonable expectations of insureds will be honored even if painstaking study of the policy provisions would have negated those expectations.  Id. At 277.  In other words, a court need not enforce the literal terms of a policy exclusion if those terms are contrary to the reasonable expectations of the insured.  The reasonable-expectations doctrine gives the court a standard by which to construe insurance contracts without having to rely on arbitrary rules which do not reflect real-life situations and without having to bend and stretch those rules to do justice in individual cases.


The Court finds that application of the criminal act exclusion to the facts of this case would violate the reasonable expectations of * * * the insureds. * * * The Court is influenced by Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 574 N.E.2d 1035, 571 N.Y.S.2d 429 (1991), a case which also involved the accidental killing of a friend. * * *  The insured pled guilty to second degree manslaughter for recklessly causing his friend’s death.  * * * The court stated that [“]a person may engage in behavior that involves a calculated risk without expecting—no less reasonably—that an accident will occur.  Such behavior, which may be reckless for criminal responsibility purposes, does not necessarily mean that the actor reasonable expected the accident to result.  People classically seek insurance coverage for just such circumstances.[”]


* * * *


In short, although the criminal act exclusion, interpreted as [the insurer] intended, would proscribe coverage, the Court finds that the exclusion is unenforceable in this case.  Ambiguity is not a condition precedent to application of the reasonable expectations doctrine.  The facts of this case present a situation for which people classically seek insurance coverage, and the Court concludes that a denial of coverage would conflict with the reasonable expectations of the insureds.


Id. at 692-93 (quotations and citations omitted).  We find the Tower analysis persuasive.  While there is no ambiguity in the language of the exclusion, its application would conflict with the Besses’ reasonable expectations when they purchased the insurance.  We therefore reverse the summary judgment granted to Farmers.

2.         Intentional Acts Exclusion

            The policy also provides:

We do not cover bodily injury, property damage or personal injury which * * * is either: a. Caused intentionally by or at the direction of an insured; or b. Results from any occurrence caused by an intentional act of any insured where the results were reasonably foreseeable.


The issues, then, are whether Besse intentionally caused bodily injury to Rodgers or whether his act in shooting Rodgers was intentional.

Intent may be established either by proving an insured’s actual intent to injure or by inferring such intent as a matter of law.  See Walser, 628 N.W.2d at 613 (Minn. 2001) (citation omitted) (“[T]he purpose of intentional act exclusions is to exclude insurance coverage for wanton and malicious acts by an insured, and therefore [a court] may, absent a finding of specific intent to injure, infer intent to injure as a matter of law.”) 

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.


Walser, 628 N.W.2d at 613 (citations omitted).  There is no evidence that Besse “acted in a calculated and remorseless manner.”  Whether Besse knew or should have known that harm to Rodgers was substantially certain to result from his conduct is a question for the trier of fact. 

            We are aware that the intentional misuse of a firearm will almost always imply an intent to cause injury.  Donovan v. Commercial Union Ins. Co., 493 N.W.2d 581, 583 (Minn. App. 1992).  The existence of an intent to injure is a question for a trier of fact, however, when an insured’s actions are “more in the nature of an instinctive reflex or a sudden impulsive defensive reaction to a provocative situation”.  Am. Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 421 (Minn. 1987).  Farmers argues that intent should be inferred from Besse’s conduct.  But the situation with Besse and Rodgers was provocative; Besse may have reacted impulsively and defensively.  The issue of Besse’s intent to injure must be determined by a trier of fact.

Because we conclude that the district court erred as a matter of law in determining that the exclusion of coverage for injury caused by a violation of penal law barred coverage, we reverse the summary judgment; because we agree that the insured’s intent is a genuine issue of material fact, we affirm the denial of summary judgment on that claim and remand for determination of that issue by a trier of fact.

            Affirmed in part, reversed in part, and remanded.