1. Appeal_record on appeal_inclusion of defendant's deposition
The trial court did not err by allowing defendant's deposition to be included in the record
on appeal from summary judgment for plaintiff insurance company in a declaratory judgment
action to determine whether plaintiff was required to defend and indemnify an insured in a
personal injury action brought by an individual based on the insured shooting the individual,
because: (1) there is no definitive indication in the record whether the deposition was considered
by the trial court in ruling on the parties' opposing motions for summary judgment; and (2) the
trial judge's settlement of the record on appeal is final and cannot be reviewed by the appellate
court.
2. Insurance--personal injury action--expected or intended injury exclusionary
language
The trial court did not err by granting summary judgment in favor of plaintiff insurance
company in a declaratory judgment action to determine whether the insurance company was
required to defend and indemnify the insured in a personal injury action brought by an individual
based on the insured shooting the individual, because: (1) the insured's statement to police after
the shooting indicated that he shot through the door at someone he saw outside and that the
insured shot the individual because he thought he was breaking in; (2) the insured's intentional
act of firing his handgun at the individual in close proximity was sufficiently certain to cause
injury that the insured should have expected such injury to occur; and (3) the expected or
intended injury exclusionary language in the insured's insurance policy precludes coverage for
the individual's injuries.
Robbins May & Rich L.L.P., by P. Wayne Robbins, for defendant-
appellant Joe Hampton Yow.
Pinto, Coates, Kyre & Brown, P.L.L.C., by Paul D. Coates and
John I. Malone, Jr., for plaintiff-appellee North Carolina
Farm Bureau Mutual Insurance Company.
WYNN, Judge.
Joe Hampton Yow appeals from summary judgment favoring North
Carolina Farm Bureau Mutual Insurance Company. We affirm. Farm Bureau Insurance insured Edgar Lewis Allen providing
bodily injury liability coverage “[i]f a claim is made or a suit is
brought against any insured for damages because of bodily injury
. . . to which this coverage applies[.]” The policy also provided
for payment of “necessary medical expenses incurred or medically
ascertained within three years from the date of an accident causing
bodily injury” to persons “on the insured location with the
permission of [the] insured[.]” However, the policy excluded such
personal liability and medical payments coverage from bodily injury
“which is expected or intended by the insured.” This appeal
concerns the interpretation of this exclusionary language.
Allen owned an unoccupied house in Montgomery County, North
Carolina. The house had previously been broken into, and on 4
September 1997, Allen asked Yow to stay with him overnight in the
house to guard against a further break-in. Allen took along
several firearms, including two handguns and two rifles. At some
point during the night, Allen awoke and thought he heard someone
outside, possibly an intruder. Allen pointed one of his handguns
in the direction of the purported intruder; the gun fired, striking
Yow. Yow contends in his brief that Allen fired the gun
accidentally, while Farm Bureau Insurance argues that Allen fired
the gun intentionally. Furthermore, Farm Bureau Insurance contends
that Yow's injuries, even though perhaps not intended by Allen,
could nonetheless be reasonably expected to result from the
intentional act of firing the gun, and therefore were excluded from
coverage under the policy. Under a declaratory action against Allen
(See footnote 1)
and Yow, Farm Bureau
Insurance sought a determination of whether it was required to
defend and indemnify Allen in a personal injury action brought by
Yow based on the shooting. That declaratory judgment action
resulted in the trial court granting summary judgment in favor of
Farm Bureau Insurance against both Allen and Yow; only Yow appeals
to us.
(See footnote 2)
Yow brings forth the following two assignments of error: 1. The Cou
rt erred in granting Plaintiff's
Motion for Summary Judgment.
2. The Court erred in allowing [Yow's]
Deposition to be included in the Record on
Appeal.
At the outset, we note that in his brief, Yow presents a
single “Argument” without reference to his assignments of error, in
violation of our Rules of Appellate Procedure. See N.C.R. App. P.
28(b)(5) (2000) (requiring appellant's brief to separately state
each question presented, followed by a reference to the pertinent
assignment(s) of error, “identified by their numbers and by the
pages at which they appear in the printed record on appeal”).
Although such a failure to comply with our appellate rules may
subject an appeal to dismissal, Steingress v. Steingress, 350 N.C.
64, 511 S.E.2d 298 (1999), we exercise our discretion under N.C.R.
App. P. 2 (2000), and consider the merits of this appeal. See
Naddeo v. Allstate Ins. Co., 139 N.C. App. 311, 533 S.E.2d 501
(2000); May v. City of Durham, 136 N.C. App. 578, 525 S.E.2d 223
(2000).
[1]Regarding his second assignment of error, Yow cites Graham
v. Hardee's Food Systems, 121 N.C. App. 382, 465 S.E.2d 558 (1996),
arguing that his deposition should not have been included in the
record on appeal as he contends it was not considered by the trial
court in ruling upon the parties' opposing motions for summary
judgment. In Graham, this Court declined to consider additional
materials offered by the plaintiff for addition to the record on
appeal, where “the transcript show[ed] these materials were notproperly tendered for consideration on [the] defendant's motion for
summary judgment and were not considered by the trial court.” 121
N.C. App. at 386, 465 S.E.2d at 560-61. As the transcript
indicated those materials were not part of the official record on
appeal, this Court held that they could not be considered by it on
appeal. See id. (citing N.C.R. App. P. 9 (2000)).
In the instant case, there is no definitive indication in the
record whether Yow's deposition was considered by the trial court
in ruling on the parties' motions for summary judgment. Farm
Bureau Insurance's motion requested entry of summary judgment in
its favor on grounds that the materials before the trial court,
specifically including “depositions,” revealed no genuine issue as
to any material fact. However, Farm Bureau Insurance's motion was
filed with the trial court on 16 June 2000, several days prior to
Yow's deposition on 22 June 2000.
Allen moved for summary judgment on grounds that the materials
before the trial court, specifically including “depositions,”
revealed no genuine issue as to any material fact. This motion was
filed with the trial court on 6 July 2000. Nonetheless, this
motion specifically asked the trial court to “consider all
pleadings in the file, the Plaintiff's responses to the Defendant,
Faye Morgan Allen, Administratrix of the Estate of Edgar Lewis
Allen, Request for Production of Documents; the [] Affidavit of
Faye Morgan Allen and all other documents of record.” Noticeably
absent is any mention of Yow's deposition testimony.
Lastly, the trial court's 21 July 2000 order granting summary
judgment to Farm Bureau Insurance states that the court consideredthe “depositions,” among other materials, and found no genuine
issue of material fact. However, we do not deem the trial court's
general recitation of the N.C. Gen. Stat. § 1A-1, Rule 56(c)
language conclusive on the issue of whether the court considered
Yow's deposition testimony in ruling on the motions for summary
judgment.
Regardless of the inconclusive nature of the materials in the
record on this issue, we take this opportunity to point out that
“only the judge of [the] superior court or of [the] district court
from whose order or judgment an appeal has been taken is empowered
to settle the record on appeal when judicial settlement is
required.” N.C. Gen. Stat. § 1-283 (1999). This Court has held
that “the appellate court is bound by the contents of the record on
appeal. The record imports verity and the Court of Appeals is
bound thereby.” State v. Hickman, 2 N.C. App. 627, 630, 163 S.E.2d
632, 633-34 (1968). Where asked to settle the record on appeal,
“[t]he trial judge then has both the power and the duty to exercise
supervision to see that the record accurately presents the
questions on which this Court is expected to rule.” Conrad v.
Conrad, 252 N.C. 412, 416, 113 S.E.2d 912, 914 (1960). “[T]his
Court must receive and act upon the case settled for this Court as
importing absolute verity and as it comes from the court below[.]
. . . This Court . . . has no authority to suggest to, direct or
require the judge, in settling the case, as to . . . what facts he
shall state, or what matter he shall set forth.” Boyer v. Teague,
106 N.C. 571, 573-74, 11 S.E. 330, 330-31 (1890). Thus, the trialjudge's settlement of the record on appeal is final, and cannot be
reviewed by this Court on appeal. See State v. Gooch, 94 N.C. 982
(1886); State v. Johnson, 230 N.C. 743, 55 S.E.2d 690 (1949).
Appellant's second assignment of error is therefore overruled, and
we consider the entire record on appeal, including Yow's deposition
testimony, in ruling on the merits of his first assignment of
error.
[2]We next consider Yow's argument that the trial court erred
in granting summary judgment to Farm Bureau Insurance. With this
argument, we disagree.
Summary judgment is proper where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999). The
party seeking summary judgment must establish the absence of any
triable issue; this burden may be met by (1) proving the
nonexistence of an essential element of the opposing party's claim,
(2) establishing through discovery that the opponent cannot produce
evidence supporting an essential element, or (3) showing that the
opposing party cannot overcome an affirmative defense that would
bar the claim. See Roumillat v. Simplistic Enterprises, Inc., 331
N.C. 57, 63, 414 S.E.2d 339, 342 (1992).
The pertinent issue before us is whether, as a matter of law,
the bodily injury inflicted upon Yow by Allen was “expected or
intended” by Allen such that it is barred from coverage under FarmBureau Insurance's policy. We conclude that the policy excludes
coverage for Yow's injuries.
“The interpretation of language used in an insurance policy is
a question of law, governed by well-established rules of
construction.” N.C. Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C.
App. 530, 532, 530 S.E.2d 93, 95, disc. review denied, 352 N.C.
590, 544 S.E.2d 783 (2000). The language used in such policies is
subject to judicial construction only where it “is ambiguous and
reasonably susceptible to more than one interpretation.” Id.
In Mizell, this Court addressed a factual scenario strikingly
analogous to the instant case. There, plaintiff North Carolina
Farm Bureau Mutual Insurance Company provided homeowner's insurance
coverage to defendant Mizell. One evening Mizell emerged from his
house with his rifle, which he fired in the direction of someone
running away from his house who he believed to be a prowler. At
least one of the bullets fired struck defendant Austin in the head,
injuring him; Austin later filed suit against Mizell seeking to
recover damages from Mizell for his personal injuries.
Subsequently, as in the instant case, Farm Bureau Insurance filed
a declaratory judgment action to determine whether the insurance
policy covered Mizell's actions.
The insurance policy insuring Mizell excluded coverage for
“bodily injury” or “property damage”:
a. Which is intended by or which may
reasonably be expected to result from the
intentional act or omissions or criminal acts
or omissions for one or more 'insured'
persons. This exclusion applies even if:
. . .
(2) The 'bodily injury' or 'property
damage' is of a different kind, quality
or degree than intended or reasonably
expected[.]
138 N.C. App. at 531, 530 S.E.2d at 94. Mizell's statement to the
district attorney indicated that he fired the rifle at a person he
believed to be a prowler. Mizell indicated that he fired in the
prowler's general direction, meaning only to scare the prowler but
not to hit him. Id.
This Court affirmed the trial court's grant of summary
judgment in Farm Bureau Insurance's favor, stating that “when a
person fires multiple shots from a rifle at night in the direction
of a prowler who is approximately fifty feet away, that person
could reasonably expect injury or damage to result from the
intentional act.” Id. at 533-34, 530 S.E.2d at 95. In so holding,
this Court noted that the insurance policy's exclusionary language
“suggests the application of an objective standard as opposed to”
a subjective one. Id. at 533, 530 S.E.2d at 95.
However, even in instances in which an insurance policy's
exclusionary language suggests a subjective standard of intent to
injure or expectation of injury, this Court has held that an intent
to injure may be inferred as a matter of law from certain acts.
See Erie Ins. Group v. Buckner, 127 N.C. App. 405, 489 S.E.2d 901
(1997) (interpreting Virginia law but noting the substantial
similarities of North Carolina law and finding that “intended or
expected” exclusion precluded coverage where insured punched victim
in the forehead); Eubanks v. State Farm Fire and Casualty Co., 126N.C. App. 483, 485 S.E.2d 870, disc. review denied, 347 N.C
. 265,
493 S.E.2d 452 (1997) (intent to inflict emotional injury may be
inferred from solicitation to commit murder, precluding coverage
due to “expected or intended” exclusion); Russ v. Great American
Ins. Companies, 121 N.C. App. 185, 464 S.E.2d 723 (1995), disc.
review denied, 342 N.C. 896, 467 S.E.2d 905, and motion to
reconsider dismissed, 343 N.C. 309, 472 S.E.2d 334 (1996) (intent
to injure may be inferred from intentional act of sexual
harassment). See also Nationwide Mutual Ins. Co. v. Abernethy, 115
N.C. App. 534, 445 S.E.2d 618 (1994); Commercial Union Ins. Co. v.
Mauldin, 62 N.C. App. 461, 303 S.E.2d 214 (1983).
Defendant Yow cites N.C. Farm Bureau Mut. Ins. Co. v. Stox,
330 N.C. 697, 412 S.E.2d 318 (1992), and Miller v. Nationwide
Mutual Ins. Co., 126 N.C. App. 683, 486 S.E.2d 246 (1997), in
support of his contention that the “expected or intended” exclusion
in the instant case does not preclude coverage for his injuries
resulting from Allen's actions. As in Mizell, we distinguish Stox
and Miller in that the insurer in each of those cases failed to
show that the insured's action was expected or intended to cause
injury or damage.
Similar to Mizell, in the instant case, Allen's statement to
police after the shooting indicated that he “shot through the door”
at someone he saw outside. Allen also advised police that “he had
shot Joe Yow because he thought he was breaking in on him.”
According to Yow's deposition, he could clearly see Allenapproximately three feet away through the door when Allen shot him.
We hold that Allen's intentional act of firing his handgun at Yow,
in close proximity, was sufficiently certain to cause injury that
Allen should have expected such injury to occur. See Eubanks;
Russ; Mauldin; Mizell. Accordingly, the “expected or intended”
exclusionary language in Allen's insurance policy with Farm Bureau
Insurance precludes coverage for Yow's injuries. The trial court's
grant of summary judgment in favor of Farm Bureau Insurance is
therefore,
Affirmed.
Judges McCULLOUGH and BRYANT concur.
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