Insurance_business liability policy--coverage for shooting_exception for intended injury
There was sufficient evidence to support the trial court's judgment that an insurance
company was not obligated to defend or indemnify its insured under a business liability policy
(Grier) for an incident in which Grier shot Fields following a theft at Grier's business. The facts
of the shooting meet the definition of expected or intended injury in a policy exclusion; while
there is an exception to the exclusion for the use of reasonable force, there is sufficient evidence
that Grier voluntarily became the aggressor.
ARTHURS AND FOLTZ, by Nancy E. Foltz, for plaintiff appellee.
WOMBLE CARLYLE SANDRIDGE & RICE, P.L.L.C., by Richard T. Rice
and Candice S. Wooten, for defendant appellee Charter Oak Fire
Insurance Company.
JONES, HEWSON & WOOLARD, by Lawrence J. Goldman, for defendant
appellants Cicero A. Grier and The Bounty Corporation.
TIMMONS-GOODSON, Judge.
Cicero A. Grier (“Grier”) and The Bounty Corporation (“Bounty
Corp.”) appeal from a judgment declaring that insurance policies
issued by Auto Owners Insurance Company (“Auto Owners”) and Charter
Oak Fire Insurance Company (“Charter Oak”) do not provide coverage
or a duty to defend Grier for an incident which occurred on 12
September 2000. For the reasons stated herein, we affirm the
judgment of the trial court. The pertinent facts of the instant appeal are as follows:
Grier is the chief executive officer and sole owner of Bounty Corp.
Bounty Corp. consists of three entities, a food mart, laundromat
and car wash. All three entities are located on the same premises
in Charlotte, North Carolina.
On the morning of 12 September 2000, Grier drove to Bounty
Corp. with a loaded gun to complete his “usual chores.” When Grier
arrived at Bounty Corp., he noticed four figures walking toward the
store. Grier recognized one of the figures as an employee who
worked in the deli, but did not recognize the three men behind her.
Instead of walking into the store as the employee did, the men
walked past the van and stopped just a few feet behind it to talk.
The men appeared to be a little older than “school age.” Grier
remained inside the van until the men left.
After the men left, Grier got out of his van and began to
remove the coins from the vacuum machines. As Grier was emptying
the last vacuum box, he saw the same three men walking toward him.
At deposition Grier testified that, “I hurriedly dropped the keys
into the money jug with the money that I had taken from the coin
boxes, and I walked fast. I really had to walk real fast to get
into the equipment room before they got to me.” The men followed
Grier to the equipment room and began smoking drugs directly beyond
the door to the equipment room. Grier stated that he believed the
men were trying to “wait me out,” but Grier waited until the men
moved beyond the door before he left the equipment room and asked
the men to leave. Grier approached Victor Fields, Jr. (“Fields”) first, but kept
his distance “to where [Fields] would not have been able to attack
[him].” When asked to leave, Fields did not respond. Grier moved
to the next man and told him to leave. This man did not move, but
instead asked Grier for the time. After Grier responded with the
time, he looked back at the equipment room and saw the third man
leave the room with Grier's money and keys. Grier chased the third
man, but did not catch him.
Grier returned to the store for his van to try “to cut this
guy off” and bring him to the police. During his drive, Grier
spotted Fields walking alongside a street. Grier pulled his gun,
jumped out of his van, grabbed Fields by his jacket and told him
that he was taking Fields back to Bounty Corp. to await the police.
Although Fields initially resisted, Grier drove them back to Bounty
Corp. and asked an employee to call the police.
Grier held Fields by the back of his jacket, with his gun
drawn, while they awaited the arrival of the police. Before the
police arrived, Fields “pulled out” of his jacket and turned to
face Grier. Grier fired his gun at the ground to “put some
distance between us.” The bullet penetrated Fields's hand and
leg. Fields was taken to the hospital while Grier was taken to the
police station. No charges were filed against either Grier or
Fields.
Grier was insured under a homeowners insurance policy provided
by Auto Owners. Bounty Corp. was insured under a business
liability policy provided by Charter Oak. It is uncontested thatthe above policies were in effect on the date in question.
Fields initiated a law suit against Grier for damages
resulting from the 12 September 2000 injuries. Grier sought a
declaratory judgment in Mecklenburg County Superior Court that the
Auto Owners and Charter Oak policies required both insurance
carriers to defend and indemnify Grier in the lawsuit filed by
Fields. The trial court entered a judgment on 6 December 2002
declaring that neither policy provides coverage to Grier for the 12
September 2000 incident. Grier and Bounty Corp. appeal the trial
court's declaratory judgment in favor of Charter Oak.
1. Insuring Agreement
. . . .
b. This insurance applies to “bodily injury” and
“property damage” only if:
(1) The “bodily injury” or “property damage” is
caused by an “occurrence” that takes place in
the “coverage territory” . . . .
. . . .
2. Exclusions
This insurance does not apply to:
a. Expected or Intended Injury
“Bodily injury” or “property damage” expected or
intended from the standpoint of the insured. This
exclusion does not apply to “bodily injury”
resulting from the use of reasonable force to
protect persons or property.
. . . .
SECTION V - DEFINITIONS
. . . .
12. “Occurrence” means an accident, including continuous or
repeated exposure to substantially the same general
harmful conditions.
The dispositive issue on appeal is whether the 12 September
2000 incident is excluded from coverage under the “Expected or
Intended Injury” exclusion defined above. Charter Oak may deny
Grier coverage only if Fields's injury was expected or intended
and did not result from Grier's use of reasonable force to
protect himself or his property.
This Court has addressed similar circumstances in at least
two previous cases. In N.C. Farm Bureau Mut. Ins. Co. v. Mizell,
the insured homeowner shot a rifle in the direction of a prowler
running away from his house. 138 N.C. App. 530, 531, 530 S.E.2d
93, 94 (2000). The insured stated that he intended to shoot at
the ground and above the prowler's head to scare the prowler, but
did not intend to hurt him. Id. The parties moved for summary
judgment. Mizell, 138 N.C. App. at 532, 530 S.E.2d at 94. The
trial court granted summary judgment and concluded that the
insurance carrier has no responsibility for coverage. Id. On
appeal, this Court determined 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.”
Mizell, 138 N.C. App. at 533, 530 S.E.2d at 95.
This Court later found in N.C. Farm Bureau Mut. Ins. Co. v.
Allen that intentionally firing a handgun at another who was
three feet away “was sufficiently certain to cause injury that
[the insured] should have expected such injury to occur.” 146
N.C. App. 539, 546, 553 S.E.2d 420, 424 (2001). In Allen, theinsured owned an unoccupied house that had been broken into on a
previous occasion. 146 N.C. App. at 541, 553 S.E.2d at 421. The
insured asked his friend, Yow, to stay overnight in the home with
him to guard against a future break-in. The insured took along
several firearms, including two handguns and two rifles.
Sometime during the night, the insured awoke and heard someone
outside the house. The insured, fearing a prowler beyond the
door, pointed a gun at the door and fired, striking Yow. In a
declaratory judgment action, the trial court concluded that the
insured's insurance carrier had no duty to defend or to indemnify
the insured against Yow. Id. On appeal, this Court determined
that the insurance policy's “expected or intended” exclusionary
provision precluded coverage for Yow's injuries. 146 N.C. App.
at 546, 553 S.E.2d at 424.
Mizell, Allen, and the instant case all have facts in
common: (1) the insured intentionally carried a gun; (2) the
insured admitted to shooting the victim; and, (3) the insured
asserted at trial that he did not intend to harm the victim
either because he accidentally discharged the gun or because he
was not aiming at the victim. In Mizell and Allen, this Court
determined that these facts sufficiently support the exclusion of
coverage based on an “expected or intended” provision shared in
both insurance policies. Mizell, 138 N.C. App. at 533, 530
S.E.2d at 95; Allen, 146 N.C. App. at 546, 553 S.E.2d at 424.
Charter Oak's policy provisions pertinent to the instant appeal
also include an exclusion for “expected or intended injur[ies].” As such, we conclude that the facts alleged herein meet the
definition of “expected or intended” injury. See Mizell, 138
N.C. App. 530, 530 S.E.2d 93; Allen, 146 N.C. App. 539, 553
S.E.2d 420.
The policy in question provides an exception to the
exclusionary provision cited above. If the insured submits that
the injury resulted from the use of reasonable force, even if the
injury was “expected or intended,” the exclusionary provision
does not apply.
Grier asserts that because he fired the gun at the ground to
“put distance” between himself and Fields, that his actions were
the result of reasonable force to protect himself and his
property. However, we note that “the right of self-defense is
only available to a person who is without fault, and if a person
voluntarily, that is aggressively and willingly, enters into a
fight, he cannot invoke the doctrine of self-defense unless he
first abandons the fight, withdraws from it and gives notice to
his adversary that he has done so.” Juarez-Martinez v. Deans,
108 N.C. App. 486, 492, 424 S.E.2d 154, 158 (1993)(quoting State
v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)).
Although Grier stated that he was concerned for his safety
several times in his interactions with the three men, Grier's
fear did not preclude him from leaving his property alone in
search of the men, and before notifying the police. Furthermore,
when Grier spotted Fields walking down a street approximately 150
feet away from the original incident, he again failed totelephone the police. Instead, Grier grabbed Fields at gunpoint
and drove him back to Bounty Corp. where the police were then
called. There is enough evidence in the record to support a
finding that Grier voluntarily became the aggressor when he
forced Fields at gunpoint back to Grier's place of business,
which negates Grier's ability to assert that Fields's injuries
were the result of self-defense. See Juarez-Martinez v. Deans,
108 N.C. App. at 492, 424 S.E.2d at 158.
We conclude that there is sufficient evidence to support the
trial court's judgment that Charter Oak is not obligated to
defend or indemnify Grier for the incident on 12 September 2000.
As such, we affirm the judgment of the trial court.
Affirmed.
Judges WYNN and McCullough concur.
*** Converted from WordPerfect ***