BALBOA INSURANCE COMPANY, APPELLANT,
v.
PECOLA FLOYD AND JOSEPH SAWYER, APPELLEES
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Balboa Insurance appealed a summary judgment finding coverage under a homeowners liability policy for a death caused when the insured intentionally fired a gun at one person but accidentally struck and killed a bystander. The court reversed, holding that whether the killing was intentional or accidental is a factual question for a jury, not determinable at summary judgment.
The court held that whether the killing of the minor was an intentional or unintentional act is a material factual question that must be submitted to a jury and cannot be determined at summary judgment. Coverage under the policy depends on resolving this factual issue.
[1] Whether an insured's act was intentional or unintentional, for purposes of insurance coverage, is a question of fact for the trier of fact, not a matter for summary judgm…
[2] An insurance policy exclusion for intentional injury does not apply if the injury, though resulting from an intentional act, was not itself intended.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is an issue to be determined by the trier of the fact as to whether or not the killing of the minor was an intentional or unintentional act. This is a material issue which should be submitted to a jury and not determined at a summary judgment hearing.”
The court's core holding that intentionality is a factual question for the jury, not for summary judgment determination.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSawyer, insured under a Balboa homeowners policy, intentionally discharged a firearm at Robert Blakely during an altercation. A bullet from the gun st…
The full statement of facts, procedural history, and disposition for this case are member content.
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The appellant issued a homeowners insurance policy to the appellee, Joseph Sawyer. The policy contained the following provisions covering accidental injury to another :
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“1. Coverage E — Personal Liability
“(a) Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury.or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.”
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It also had the following exclusion for intentional injury:
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“Special Exclusions
******
“(c) Under Coverages E and F, to bodily injury or property damage caused intentionally by or at the direction of the Insured;”
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*203The insured became involved with an altercation with one Robert Blakely. He intentionally discharged a firearm at Blakely. A missile therefrom struck a minor in the vicinity, killing him. Suit was brought by the mother of the minor against Sawyer and the appellant, as his insurance carrier. Both parties moved for a summary judgment, the insurance carrier contending it was entitled to' a summary judgment on liability in its favor, finding no coverage because the act of Sawyer was an intentional one, citing: Roberts v. R & S Liquor Stores, Inc., Fla.App.1964, 164 So.2d 533; Stout v. Grain Dealers Mut. Ins. Co., 4th Cir. 1962, 307 F.2d 521. The mother of the deceased moved for a summary judgment, contending that there was coverage because the act of the insured was intentional as to Blakely but accidental as directed against her deceased son, citing: Cloud v. Shelby Mutual Insurance Company of Shelby, Ohio, Fla.App.1971, 248 So.2d 217; Smith v. Moran, 61 Ill.App.2d 157, 209 N.E.2d 18, 1965; Eisenman v. Hornberger, 438 Pa. 46, 264 A.2d 673, 1970; State Farm Mutual Automobile Insurance Company v. Worthington, 8th Cir. 1968, 405 F.2d 683.
The trial court rendered a summary judgment in favor of the mother of the deceased and adverse to the insurance, holding as a matter of law that the actions of Sawyer were unintentional and therefore there would be coverage under the policy. We reverse.
It is an issue to be determined by the trier of the fact as to whether or not the killing of the minor was an intentional or unintentional act. This is a material issue which should be submitted to a jury and not determined at a summary judgment hearing. Holl v. Talcott, Fla.1966, 191 So.2d 40; Shollenberger v. Baskin, Fla.App.1969, 227 So.2d 79; Lora v. Maule Industries, Inc., Fla.App.1970, 235 So.2d 743; see George v. Stone, Fla.App.1972, 260 So.2d 259 (opinion filed April 7, 1972). Obviously, the question of coverage is dependent on a resolution of this issue and, under the circumstances, it would appear that it would be appropriate for the trial judge to sever this issue prior to the main trial proceedings. Beta Eta House Corp. of Tallahassee v. Gregory, Fla.1970, 237 So.2d 163; Stecher v. Pomeroy, Fla.1971, 253 So.2d 421.
Reversed and remanded, with directions.
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Citator
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Beta ETA House Corp. v. Gregory, 237 So. 2d 163 (Fla. 1970)
- In re Florida Rules of Criminal Procedure, 253 So. 2d 421 (Fla. 1971)
- Cloud v. Shelby Mut. Ins. Co. of Shelby, 248 So. 2d 217 (Fla. 3d DCA 1971)
- George v. Stone, 260 So. 2d 259 (Fla. 4th DCA 1972)
- Garland P. Stout v. Grain Dealers Mut. Ins. Co., 307 F.2d 521 (4th Cir. 1962)
- State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683 (8th Cir. 1968)
- Roberts v. R & S Liquor Stores, Inc., 164 So. 2d 533 (Fla. 1st DCA 1964)
- Shollenberger v. Baskin, 227 So. 2d 79 (Fla. 4th DCA 1969)
- Wenceslao Manuel Lora v. Maule Indus., Inc., 235 So. 2d 743 (Fla. 3d DCA 1970)