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Royal Ins. v. Pinette et al.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 155
Docket:	Cum-99-745	
Argued:	May 1, 2000	
Decided:	August 10, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.





ROYAL INSURANCE COMPANY v. GERALDINE PINETTE, et al.



WATHEN, C.J.
	[¶1]  Geraldine Pinette, Robert Matthews, and Patricia Wilson, the
personal representatives for the estates of Kevin Pinette, Dana Matthews and
Nicholas Patenaude, respectively, appeal from a summary judgment entered
in the Superior Court (Cumberland County, Crowley, J.) finding that Royal
Insurance Company had no duty to indemnify its insured, Sabato Raia, for
any liability for shooting and killing Pinette, Matthews and Patenaude in
June of 1997.  The Estates argue that though Raia acted intentionally, and
though the homeowner's insurance policy issued to Raia by Royal did not
cover bodily injury unless it was both accidental and neither expected nor
intended by the insured, the court should have found a duty to indemnify
because Raia acted under a mistaken claim of right, namely the unreasonable
belief that he was entitled to act in self-defense.  The Estates assert that this
negligent claim of right means that the consequences of Raia's intentional
acts were unexpected and therefore covered by the policy.  We disagree and
affirm the judgment. 
	[¶2]  This case comes before us in a highly unusual posture.  Royal
filed the present action in Superior Court seeking a declaratory judgment
that it had no duty to indemnify Raia for his actions.  The parties stipulated
as to the relevant facts in this case.  These stipulations provide in pertinent
part:
1. On June 24, 1997, Sabato Raia intended or expected to a practical
certainty that death or serious bodily injury would result when he
shot Kevin Pinette, Dana Matthews and Nicholas Patenaude.

2. Sabato Raia committed the civil tort of battery upon Kevin Pinette,
Dana Matthews and Nicholas Patenaude.

3.  At the time of the shootings, Sabato Raia subjectively believed that
his life was in danger and that his actions were a legitimate use of
force in defense of his life.  However, a defense of self-defense to a
civil battery claim would not be valid because Sabato Raia's belief that
he was entitled to act in self-defense was not reasonable.

4. Royal Insurance Company had issued to Sabato Raia a
homeowner's policy that was in effect at all relevant times . . . .
Shortly after the Estates answered the complaint, Royal moved for a
summary judgment, basing its motion upon these stipulated facts.  Royal
argued that it had no duty to indemnify Raia because the bodily injury did
not arise out of an "occurrence"{1} as required by the policy and because,
even if the shooting was an "occurrence,"  it was excluded under the policy
language preventing recovery for injury the insured "expected or
intended."{2}  The Superior Court granted  a summary judgment, ruling that
Raia's conduct fell "squarely within the exclusion" for expected or intended
bodily injury.  The Estates appeal from this judgment. 
	[¶3]  Although Royal is seeking a declaratory judgment as to its duty
to indemnify Raia, the Estates have never instituted a civil suit against Raia
to establish his liability for the shootings.  In the ordinary case, "[a]n insurer
may not litigate its duty to indemnify until the liability of the insured has
been determined."  Hanover Ins. Co. v. Crocker, 1997 ME 19, ¶ 1 n.1, 688
A.2d 928, 929 n.1.  Nonetheless, we have noted a few limited exceptions to
this requirement.  See Patrons Oxford Mut. Ins. Co. v. Garcia, 1998 ME 38,
¶ 7, 707 A.2d 384, 386.  Because Raia was not a party to this action or to the
stipulations, however, those stipulations, without more, are insufficient to
place this case within one of those exceptions.  See Northern Security Ins.
Co., Inc. v. Dolley, 669 A.2d 1320, 1321, 1323 (Me. 1996) (holding that
where all necessary parties--including the insurer, the insured, and the
third party claimant--had stipulated to the material facts in the dispute, a
declaratory judgment action on the insurer's duty to indemnify could
proceed).  At oral argument the parties stipulated to the existence of an
agreement{3}  in which the Estates released all claims they might have
otherwise asserted directly against Raia in exchange for a declaratory
judgment based on the stipulations.  The effect of the agreement and
stipulations is to place this case in a procedural posture that is the
functional equivalent of having had a full trial with no dispute as to Royal's
duty to defend Raia and a determination of facts consistent with the
stipulations.  Accordingly, judicial intervention does have "a direct,
immediate and continuing impact" upon the parties, see Maine Pub. Serv.
Co. v. Public Util. Comm'n, 524 A.2d 1222, 1226 (Me. 1987), and this action
is ripe for review.
	[¶4]  We review the entry of a summary judgment "for errors of law,
viewing the evidence in the light most favorable to the party against whom
the judgment was entered," Peterson v. State Tax Assessor, 1999 ME 23, ¶
6, 724 A.2d 610, 612, and will affirm "if the evidence demonstrates that
there is no genuine issue as to any material fact and that the moving party is
entitled to [a] judgment as a matter of law."  Id.  The Estates argue on appeal
that the policy language excluding intentional or expected conduct is
ambiguous and that the proper resolution of this ambiguity leads to the
conclusion that a battery undertaken in self-defense is neither intended nor
expected under the policy.  "The language of a contract of insurance is
ambiguous if it is reasonably susceptible of different interpretations."  Apgar
v. Commercial Union Ins. Co., 683 A.2d 497, 498 (Me. 1996).  If there is an
ambiguity, "a liability insurance policy must be construed so as to resolve all
ambiguities in favor of coverage."  Massachusetts Bay Ins. Co. v. Ferraiolo
Constr. Co., 584 A.2d 608, 609 (Me. 1990).  Whether a policy is ambiguous is
a question of law.  See Apgar, 683 A.2d at 498.  We review questions of law
de novo.  See H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920, 923 (Me.
1996).
	[¶5]  Though we have once before held a similar exclusion
ambiguous, see Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888, 891
(Me. 1981), the resolution of that case does not control the present one.  In
Dodge, we held that the exclusion applied only if the insured subjectively
expected the injury to occur, thus resolving an ambiguity over whether the
exclusion required "objective normative criteria."  See id. at 891-92. 
Because the Estates and Royal have stipulated that Raia had the necessary
subjective intent to cause injury, Dodge does not control.  
	[¶6]  The Estates instead claim that further ambiguity lies within the
policy's failure to distinguish between the intent to perform a physical act
causing injury and the intent to cause that injury.  We agree that there is an
ambiguity within this exclusion, but conclude that this ambiguity has already
been resolved under our prior case law.  In three cases, we have considered
the motives behind an intentional physical act when evaluating whether an
intentional/expected exclusion applied.  Two of these cases involved
intentional entry onto the real property of another.  See Gibson v. Farm
Family Mut. Ins. Co., 673 A.2d 1350 (Me. 1996); Massachusetts Bay Ins. Co.
v. Ferraiolo Constr. Co., 584 A.2d 608 (Me. 1990).  In Ferraiolo, the
defendant was alleged to have operated a gravel pit in such a  way as to
trespass on the property of another, while in Gibson, the plaintiffs were
alleged to have intentionally entered upon their neighbor's land.  See
Gibson, 673 A.2d at 1352; Ferraiolo, 584 A.2d at 609.  We agreed in both
cases that the entry upon the land was intentional, though in each case
there was the possibility the trespasser never intended to infringe upon the
rights of the landowners.  See Gibson, 673 A.2d at 1353; Ferraiolo, 584 A.2d
at 610.  Nonetheless, all that is required for liability in trespass is the intent
to be on the land, even if the trespasser had no knowledge that he was on
the land of another and had no intention of harming the owner of that land. 
Liability for trespass exists despite the defendant's mistake, inadvertence or
negligence.  See Gibson, 673 A.2d at 1353; Ferraiolo, 584 A.2d at 611 n.3. 
We therefore refused to apply the exclusion, reasoning that though the entry
was intentional, the consequences of that act--in other words, the injury to
the landowner -- could nonetheless be unintentional and covered under the
liability policy.  See Gibson, 673 A.2d at 1353; Ferraiolo, 584 A.2d at 610-11. 
It was not enough for the insured to intend to perform an act that caused
injury if the insured did not also intend to cause the injury itself. 
	[¶7]  In Vigna v. Allstate Ins. Co., 686 A.2d 598 (Me. 1996), we
applied a similar analysis in determining whether a claim against the
insureds for the infliction of emotional pain and suffering was excluded from
coverage.  See id. at 599.  The insureds were alleged to have intentionally
withheld payment to a contractor for renovations to their house, thus
causing the contractor to suffer emotional distress.  See id. at 600.  Though
the insureds had withheld payment intentionally, there was no indication
that the insureds had withheld payment intending to cause emotional
distress.  See id.  The exclusion was inapplicable because the intentional act
had not been motivated by the intent to cause the injury.  See id.
	[¶8]  Our cases thus demonstrate that the exclusion applies only
when the insured has acted with the intention or expectation that another
will be harmed by the insured's intentional act.  The Estates argue that the
claim of self-defense is essentially a claim of a lack of intention to do harm
and therefore the exclusion does not apply to the present situation.  We
disagree.  Self-defense, in the law of torts, is a privilege "conditioned upon a
proper motive and reasonable behavior . . . ."  William L. Prosser, Handbook of
the Law of Torts  § 16 at 99 (4th ed. 1971).  A privilege "signifies that the
defendant has acted to further an interest of such social importance that it
is entitled to protection, even at the expense of damage to the plaintiff."  Id.
§ 16 at 98.  The fact that self-defense motivates the battery does not change
the reality of the event: The batterer actively intends to harm another in a
way that a trespasser who enters land under a mistaken claim of right does
not.  The claim of self-defense is a plea to justify what the batterer knows
would otherwise be an improper action, rather than an indication that the
batterer was unaware that he or she was harming the victim.  Despite the
fact that Raia acted in self- defense, he intended to harm Pinette, Matthews
and Patenaude and concluded that he was justified in doing so. 
	[¶9]  The Estates respond that even if self-defense does not usually
indicate accidental and unintended conduct, Raia was negligent in his
analysis of the danger posed by Pinette, Matthews and Patenaude.  The
negligent invocation of the right of self-defense caused the deaths, the
Estates argue; because negligence is accidental and unexpected, Royal has a
duty to indemnify in this situation.  We have twice before answered
substantially this same question.  In both Hanover Ins. Co. v. Crocker, 1997
Me 19, 688 A.2d 928 and Johnson v. Allstate, 1997 ME 3, 687 A.2d 642, a
third party claimant sought recovery for injuries resulting from the
intentional acts of an insured, specifically sexual abuse by a male relative. 
See Crocker, 1997 Me 19, ¶ 2, 688 A.2d at 930, Johnson, 1997 ME 3, ¶ 2,
687 A.2d at 643.  Both claimants, however, sought recovery under a
homeowner policy by suing a female relative residing in the same household,
arguing that she had been negligent in failing to prevent the abuse and that
the policy covered the injuries attributable to that insured's negligence.  See
Crocker, 1997 Me 19, ¶¶ 2-3, 688 A.2d at 930, Johnson, 1997 ME 3, ¶¶ 3,
5, 687 A.2d at 643. 
	[¶10]  Because the negligent and intentional actors in Crocker and
Johnson were different, even though the injuries were the same, coverage
for the negligence turned upon the policy language.  See  Crocker, 1997 Me
19, ¶ 8, 688 A.2d at 931; Johnson, 1997 ME 3, ¶ 6, 687 A.2d at 644.  In
Crocker, the policy  excluded only  the injuries caused by the intentional
acts of "the insured," thereby permitting coverage to extend to injuries
negligently caused by another insured.  See Crocker, 1997 Me 19, ¶ 8, 688
A.2d at 931.  In Johnson, however, the policy excluded coverage for injuries
arising from the intentional act of "any insured," thereby barring coverage
for each insured under the policy.   See Johnson, 1997 ME 3, ¶ 1, 687 A.2d
at 644.  
	[¶11]  The present case differs from Crocker and Johnson in that
there is only one insured.  Raia acted both intentionally and negligently in
causing the injuries allegedly covered under the policy.  Raia's  stipulated
unreasonable belief that he was entitled to act in self-defense is the
equivalent of the negligence alleged in Crocker and Johnson; as in those
cases, the injuries were caused by the intentional act while the negligence
lay in the breach of a duty of care that would have prevented that intentional
act.  Where there is only one insured inflicting the same injuries, however,
there can be no question of separating the negligence of one insured from
the intentional act of another.  All injuries to Pinette, Matthews and
Patenaude were intended by Raia, "the insured," and are therefore excluded
under the policy, despite Raia's negligence in forming his belief.
	The entry is:
					Judgment affirmed.

Attorney for the plaintiff: James D. Poliquin, Esq. (orally) Norman, Hanson & DeTroy P.O. Box 4600 Portland, Maine 04112-4600 Attorneys for the defendants: Graydon G. Stevens, Esq. (orally) Kelly, Remmel & Zimmerman 53 Exchange St. P.O. Box 597 Portland, Maine 04112 William Vickerson, Esq. Levenson, Vickerson & Beneman P.O. Box 465 Portland, Maine 04112 Paul M. Boots, Esq. P.O. Box 7469 Portland, Maine 04112

FOOTNOTES******************************** {1} . Under the policy, claims "against an 'insured' for damages because of 'bodily injury' or 'property damage' caused by an 'occurrence'" are covered up to the limits of liability. "Occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in . . . 'bodily injury' . . . ." {2} . The policy excluded from coverage "'bodily injury' or 'property damage' . . . [w]hich is expected or intended by the 'insured' . . . ." {3} . Absent the agreement, Raia would be a necessary party who must be joined if feasible. See M.R. Civ. P. 19(a). Although the agreement between the parties preventing further action against Raia makes his joinder unnecessary, the better practice would have been to make that agreement part of Royal's complaint pursuant to Rule 19(c). See M. R. Civ. P. 19(c) ("A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.").