Converted WP file 050538-1

Appeal by defendant Lester R. Mitchum from order entered 3 February 2005 by Judge W. Allen Cobb, Jr. in Superior Court, New Hanover County. Heard in the Court of Appeals 23 January 2006.

Marshall, Williams & Gorham, L.L.P., by William Robert Cherry, Jr., for plaintiff-appellee.

Newton Law Firm, by J. Jefferson Newton; and Emanuel & Dunn, by Raymond E. Dunn, Jr., for defendant-appellant, Lester R. Mitchum.

    McGEE, Judge.

    Lester R. Mitchum (Mitchum) appeals from the trial court's order granting summary judgment to Nationwide Mutual Insurance Company (Nationwide). Nationwide's insured, Timothy Glenn Gaskill (the insured), shot Mitchum at the insured's home on 9 March 2001. The insured pleaded guilty to the criminal charge of assault inflicting serious bodily injury.
    Mitchum filed a complaint against the insured (the underlying negligence action) alleging, inter alia, that the insured negligently injured him. Mitchum also made a claim with Nationwidethat, as a result of the shooting, he was entitled to benefits under the insured's insurance policy.
    Nationwide filed a complaint for declaratory judgment against the insured and Mitchum to determine its rights, duties and obligations to the insured and Mitchum. Nationwide sought a declaration that the insured's policy did not cover Mitchum's damages from the shooting.
    Mitchum answered Nationwide's complaint, alleging that Mitchum was entitled to benefits under the insured's policy. The insured did not file an answer to Nationwide's complaint. The trial court entered a default judgment against the insured, stating he was not entitled to insurance coverage for the shooting incident. Mitchum filed a motion to set aside the default judgment and the trial court stayed Mitchum's motion.
    Nationwide moved for summary judgment on the ground that the insured's policy did not provide coverage for Mitchum's injuries because those injuries were expected or intended by the insured. The trial court granted Nationwide's motion for summary judgment, stating the insured's policy did not provide coverage for Mitchum's injuries. Mitchum appeals.
    On appeal of a summary judgment ruling, our Court must determine "whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law." Allstate Ins. Co. v. Lahoud, 167 N.C. App. 205, 207, 605 S.E.2d 180, 182 (2004),aff'd per curiam, 359 N.C. 628, 614 S.E.2d 304 (2005). The moving party bears the burden of showing there is no genuine issue of material fact. Id. We view the evidence in the light most favorable to the non-movant. Id.
    Insurance policy provisions which extend coverage to an insured should be liberally construed in favor of the insured. Id. at 208, 605 S.E.2d at 182. "[E]xclusionary provisions are disfavored, and if ambiguous, they will be construed against the insurer and in favor of the insured." Id. The insurer bears the burden of establishing the applicability of an exclusion. Id. at 208, 605 S.E.2d at 183.
    The insured's policy in the present case provided that "[i]f a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, [Nationwide] will: 1. Pay up to our limit of liability for the damages for which the insured is legally liable." However, the insured's policy excluded from coverage bodily injury or property damage which was expected or intended by the insured.
    Mitchum argues the trial court erred by granting summary judgment for Nationwide because there was a genuine issue of material fact as to whether the insured expected or intended to cause Mitchum's injuries. Mitchum specifically argues that our Court's unpublished opinion in the underlying negligence action, Mitchum v. Gaskill, ___ N.C. App. ___, 616 S.E.2d 29 (2005) (COA04- 977) (unpublished), establishes that the insured's actions werenegligent rather than intentional, precluding summary judgment in the declaratory judgment action. During the trial of the negligence action, Mitchum introduced into evidence statements by the insured which indicated the insured did not know the gun was loaded on 9 March 2001, did not remember pointing the gun at Mitchum, or remember pulling the trigger. The jury found that the insured negligently injured Mitchum and awarded damages to Mitchum in the amount of $772,700.00. On appeal, our Court relied on the insured's statements, which indicated the shooting was accidental, to hold there was sufficient evidence from which the jury could reasonably have concluded that the insured negligently shot Mitchum.
    Nationwide argues that the insured's plea of guilty to assault inflicting serious bodily injury precluded insurance coverage for Mitchum's injuries. We agree. A guilty plea serves as an admission that a defendant committed each element of a crime. State v. Thompson, 314 N.C. 618, 624, 336 S.E.2d 78, 81 (1985). Moreover, in the context of insurance coverage, a plea of guilty by an insured to an offense involving an intentional act precludes insurance coverage for that intentional act where the insurance policy at issue excludes from coverage intentionally harmful acts of the insured, Lahoud, 167 N.C. App. at 211, 605 S.E.2d at 184, or bodily injury expected or intended by the insured. Nationwide Mutual Ins. Co. v. Abernethy, 115 N.C. App. 534, 538, 445 S.E.2d 618, 620 (1994); Commercial Union Ins. Co. v. Mauldin, 62 N.C. App. 461, 464, 303 S.E.2d 214, 217 (1983).    In Lahoud, the insurance company filed a declaratory judgment action seeking a determination of whether it was required to defend the insured in a civil suit for allegations of sexual molestation of a child. The insurance company also sought a determination of whether the insured's insurance policy covered the child's alleged injuries. Lahoud, 167 N.C. App. at 206-07, 605 S.E.2d at 182. The insured had previously pleaded guilty to taking indecent liberties with a child arising out of an incident where the insured molested the child. Id. at 206, 605 S.E.2d at 182. The insurance policy at issue excluded from coverage intentionally harmful actions by the insured. Id. at 208, 605 S.E.2d at 183. The trial court granted the insurance company's motion for summary judgment. Id. at 207, 605 S.E.2d at 182.
    Our Court recognized that the charge of indecent liberties required the insured's actions to be willful. Id. at 208, 605 S.E.2d at 183. Our Court affirmed the decision of the trial court, holding that the insured's guilty plea established that the insured's actions were intentionally harmful. Id. at 211, 605 S.E.2d at 184. Therefore, we held the trial court did not err by granting summary judgment for the insurance company. Id. at 213, 605 S.E.2d at 185.
    In Lahoud, our Court also stated: "It is well settled that a nonmovant may not generate a conflict simply by filing an affidavit contradicting his own sworn testimony where the only issue raised is credibility." Lahoud, 167 N.C. App. at 211, 605 S.E.2d at 185. Accordingly, our Court held the insured could not create a genuineissue of fact by contradicting his earlier guilty plea with an affidavit claiming the act was unintentional or negligent. Id. at 211-12, 605 S.E.2d at 184-85.
    We recognize the insurance exclusion for intentionally harmful actions at issue in Lahoud is more narrow than the exclusion for bodily injury expected or intended by the insured at issue in the present case. However, in support of its holding that the insured's guilty plea precluded insurance coverage, our Court in Lahoud relied upon Abernethy and Mauldin, both of which dealt with the expected or intended exclusion. Lahoud, 167 N.C. App. at 208- 10, 605 S.E.2d at 183-84. In Abernethy, the insurance company sought a declaration that it was not required to provide coverage for acts of sexual molestation of a child by the insured. Abernethy, 115 N.C. App. at 535-36, 445 S.E.2d at 618-19. The insurance policy at issue in Abernethy excluded coverage for bodily injury expected or intended by the insured, and the insured had previously pleaded guilty to taking indecent liberties with children. Id. at 535, 445 S.E.2d at 618-19. The insured did not file an answer to the complaint for declaratory judgment; however, the child did answer the insurance company's complaint and argued the insured's policy provided coverage. Id. at 536, 445 S.E.2d at 619. The trial court granted summary judgment for the child, determining that the child's injuries were covered by the insured's policy. Id.
    On appeal, our Court in Abernethy recognized that willfulness was an essential element of the charge of taking indecent libertieswith children. Id. at 538, 445 S.E.2d at 620. Our Court held that in light of the insured's guilty plea to the willful misconduct, the insured knew the child's injuries were probable and thus the insured expected or intended those injuries. Id. Therefore, the insured's actions were not covered by his insurance policy. Furthermore, the child could not raise an issue of fact as to whether the insured expected or intended the child's injuries by citing the insured's testimony that he did not expect or intend to cause injuries to the child. Id. at 540, 445 S.E.2d at 621. Accordingly, our Court reversed the trial court and remanded the case for entry of summary judgment for the insurance company. Id. at 540, 445 S.E.2d at 621-22.
    In Mauldin, the insurance company filed a declaratory judgment action seeking a determination that its insurance policy did not cover the insured for a shooting death. Mauldin, 62 N.C. App. at 462-63, 303 S.E.2d at 216. The insurance policy at issue in Mauldin excluded coverage for bodily injury which was either expected or intended by the insured. Id. at 462, 303 S.E.2d at 215.
    In Mauldin, the insured stipulated for purposes of the insurance company's summary judgment motion, that he fired four or five gun shots into a vehicle occupied by his wife and another woman. Id. at 461, 303 S.E.2d at 215. The shots killed the other woman and injured the insured's wife. The insured also stipulated he intended to shoot and injure his wife, but had no intent to shoot and injure the other woman. Id. The insured had previouslypleaded guilty to second degree murder for the shooting of the other woman. Id. at 462, 303 S.E.2d at 216. The trial court granted summary judgment for the insurance company. Id. at 463, 303 S.E.2d at 216.
    Our Court held that the insured's guilty plea to second degree murder of the other woman "was an admission that he had the general intent to do the act, and it excluded him from coverage under the insurance policy." Id. at 464, 303 S.E.2d at 217. Our Court also held that the other woman's death should have been expected by the insured because he knew her death was probable when he fired into the occupied vehicle. Id. Because the other woman's death was both expected and intended by the insured, our Court affirmed the trial court's grant of summary judgment for the insurance company. Id. Furthermore, in Mauldin, as in Lahoud and Abernethy, the insured's stipulation that he did not intend to shoot the other woman in the vehicle did not suffice to raise an issue of fact as to whether the insured expected or intended her injuries. Id.
    In the present case, the insured pleaded guilty to assault inflicting serious bodily injury. N.C. Gen. Stat. § 14-32.4(a) (2005) provides that "any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony." While there is no statutory definition of assault, an assault is defined at common law as either "a show of violence causing a reasonable apprehension of immediate bodily harm[]" or "an intentional offer or attempt by force or violence to do injury to the person of another." State v. Thompson, 27 N.C. App. 576, 577,219 S.E.2d 566, 567-68 (1975), disc. review denied, 289 N.C. 141, 220 S.E.2d 800 (1976). In either case, intent is a necessary element of criminal assault. State v. Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979).
    In the present case, as in Lahoud, Abernethy and Mauldin, the insured's guilty plea to an offense involving intentional misconduct precludes insurance coverage under the exception for bodily injury expected or intended by the insured. Moreover, we hold that Mitchum cannot raise a genuine issue of fact by citing our Court's unpublished opinion in the underlying negligence action or the insured's testimony indicating the shooting was accidental. In this respect, the present case is analogous to Abernethy in that in both cases the insured failed to answer the complaint for declaratory judgment. Therefore, in both cases, the person injured by the insured attempted to raise a genuine issue of fact as to whether the insured expected or intended injuries by citing contradictory testimony by the insured. However, as in Abernethy, Mitchum's attempt to do so in the present case is ineffectual in light of the insured's previous guilty plea. The trial court did not err by granting summary judgment for Nationwide and we overrule Mitchum's assignment of error. Because we hold the trial court properly granted summary judgment for Nationwide on the ground that the insured's policy excluded coverage, we need not address Mitchum's remaining arguments.
    Affirmed.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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