Ohio Casualty Insurance v. Henderson
Cited by
- Ohio Casualty Insurance v. Henderson 939 P.2d 1337 Ariz. 1997
Authorities cited
Identified automatically; this list may not be exhaustive.
- Continental Western Insurance v. Toal 244 N.W.2d 121
- State Farm Fire & Casualty Co. v. Doe 797 P.2d 718
- Steinmetz v. National American Insurance 589 P.2d 911
- Northern Ins. Co. of New York v. Morgan 918 P.2d 1051
- Clark v. Allstate Insurance Company 529 P.2d 1195
- Continental Insurance v. McDaniel 772 P.2d 6
- State v. Marchesano 783 P.2d 247
- Phoenix Control System, Inc. v. Insurance Co. of North America 165 Ariz. 31
- Transamerica Insurance Group v. Meere 143 Ariz. 351
- State v. Waggoner 138 Ariz. 443
- 675 P.2d 703 not in our corpus
- Vanguard Insurance Company v. Cantrell 18 Ariz. App. 486
- State Ex Rel. Woods v. Cohen 173 Ariz. 497
Opinion text
OPINION LIVERMORE, Judge. Padriac Hill was murdered by one of three armed robbers. The parents of Hill made a claim against one of the robbers, Joel Henderson. Henderson was insured under the homeowner’s policy of his parents. Plaintiff, Ohio Casualty Insurance Company, brought this declaratory action to determine whether liability under its policy was prevented by the exclusion for bodily injury “expected or intended by the insured.” The parties stipulated that Henderson was not the killer and that he did not intend that Hill be shot. Nonetheless it was clear that Henderson was aware of the risk that a shooting could occur and that he was a willing participant in the armed robbery. The trial judge granted summary judgment to the insurer. We reverse. There is no evidence that Henderson “expected or intended” the injury caused Hill. The exclusion, therefore, does not apply. It is immaterial that Henderson voluntarily engaged in criminal conduct or that such conduct was reckless with respect to the risk of serious injury. The exclusion does not apply to criminal conduct or to recklessness. See generally Phoenix Control Systems, Inc. v. Insurance Co. of North America, 165 Ariz. 31 , 796 P.2d 463 (1990); Transamerica Ins. Group v. Meere, 143 Ariz. 351 , 694 P.2d 181 (1984); Farmers Ins. Co. v. Vagnozzi, 138 Ariz. 443 , 675 P.2d 703 (1983); Vanguard Ins. Co. v. Cantrell, 18 Ariz.App. 486 , 503 P.2d 962 (1972). That one is a co-conspirator does not, standing alone, make one liable for the foreseeable criminal acts of a co-conspirator. State ex rel. Woods v. Cohen, 173 Ariz. 497 , 844 P.2d 1147 (1992). Even if it did, however, that would not establish that one intended a particular consequence. The dissent is puzzling. If the issue were should homeowner’s insurance cover armed robbers, we would agree with it. That, however, is not the issue with which we are presented. The insurer agrees that an *156 armed robber is covered unless the resulting bodily injury is “expected or intended.” That a result is risked does not make it intended or expected. The exclusion at issue is a common one. If it is read to include risks of bodily injury, it might exclude coverage for recklessness such as is involved in a driving while intoxicated automobile accident. When the dissent conclusively presumes intent to injure, it is simply saying that it will treat as legally true what it knew to be factually false. This is done to save an insurance company from its own failure to exclude in policy language what it now wishes it had and to deprive an injured person of recompense. Reversed. CHARLES E. ARES, J. Pro Tern., concurs.