LIFE AFTER LOSING THE SUMMARY JUDGMENT MOTION: TRYING THE INTENTIONAL ACTS CASE

I. LEGAL STANDARDS FOR PROVING AN “INTENTIONAL ACT”

A. Pachucki v. Republic Insurance Co., 89 Wis. 2d 703, 278 N.W.2d 898 (1979).

-Insured/defendant engaged in a “greening pin war” with Plaintiff. Plaintiff is hit in the eye with one of the projectiles. Evidence shows the activity was one of horseplay, but participants intended to sting one another with projectiles.

-court adopts, “majority rule”:

(1) it is necessary that the insured intend both the act as well as intending to cause bodily injury in order for the exclusion to apply;

(2) intent may be actual or may be inferred by the nature of the act and the accompanying reasonable foreseeability of harm;

(3) once it is found that harm was intended, it is immaterial that the actual harm caused is of a different character or magnitude than that intended.

-Court reasons that since actors were intentionally shooting the pins at each others’ bodies, and that they knew that the pins would cause harm when they strike another person, the trial court was not in error in inferring intent.

B. Raby v. Moe, 153 Wis. 2d 101, 450 N.W.2d 452 (1990)

-Insured/defendant was the “getaway” driver who willingly and knowingly took part in an armed robbery where he knew one of his accomplices would be using a firearm. Clerk of the store is shot and killed during the robbery, although there is no evidence that insured/defendant knew his accomplice would use the weapon.

-Court adopts the rationale of K.A.G. v. Stanford, 148 Wis.2d 158, 434 N.W.2d 790 (Ct. App. 1988) and expands, stating that intent may be inferred, “whenever the criminal conduct of the insured is of such a dangerous character as to impose a substantial threat to the well-being and safety of victims caught in the midst of that criminal conduct.”

-“Moe must be held to know the substantial risk of injury inherent in his criminal wrongdoing and cannot expect his homeowners insurer to provide coverage for damages resulting from that wrongdoing simply by saying, after the fact, that he did not intend for any harm to result.”

II. PRETRIAL ISSUES

A. INTERVENTION

-Where the insurance company has not been named as a defendant, yet there is dispute between the company and the insured regarding the issue of coverage, intervention into the underlying lawsuit is appropriate.

-Motion to intervene should also be accompanied by motion to bifurcate and stay proceedings on the merits of the case (where applicable), pursuant to Elliott v. Donahue, 169 Wis. 2d 310, 45 N.W.2d 403 (1992) and Newhouse v. Citizens Security Mutual Ins. Co., 176 Wis. 2d 824, 504 N.W.2d 1 (1993).

-Expect resistance from the Plaintff and perhaps even the insured and the judge on the motion to stay. Counsel for Plaintiffs are fighting against stay of proceedings on the merits with increasing regularity. Arguments usually possess the common theme that Plaintiff should not be subjected to delay and added expense of “two sets of discovery.”

-Argument for the stay should not only include discussion of the Wisconsin Supreme Court’s decisions in Elliott and Newhouse, but focus on the expense to both the insurance company and the insured in litigating the coverage issue concurrently with the merits of the case. Coverage counsel for each will be forced to wade through proceedings on the merits in order to perform discovery and litigate the issue of coverage, at added expense. Emphasize that discovery in an intentional acts, if any, focuses on relatively few actors. Length of discovery will be short.

B. SCHEDULING ORDER ON COVERAGE ISSUE

-Set dates for trial in addition to briefing schedule-different versions of material fact are highly probable!

-Anticipate hotly contested issues on motions in limine, special verdicts and jury instructions. Have a clear picture of when the Court will decide these issues and try to move the Court towards having ample time to consider and deciding these issues.

C. DEPOSITIONS

Cons- The insured will usually concoct a story as to how the damage occurred accidentally (i.e. “He ran into my fist.) that no matter how absurd raises an issue of fact that precludes any realistic chances for getting the client out of the case on summary judgment.

Pros- Usually provides ample grounds for impeachment as the insured locks himself into a story under oath that materially contradicts an earlier version given to law enforcement officers and/or is highly implausible and likely rejected by any jury or judge.

D. MOTION FOR SUMMARY JUDGMENT

-Complaint will predictably plead causes of action for intentional tort and negligence. Parties seeking coverage will therefore allege that coverage is dictated by “four corners of complaint.” Not so!

While the duty to defend is certainly dependent on the allegations contained within the plaintiff’s complaint (See Radke v. Fireman’s Fund Ins. Co., 217 Wis.2d 39, 44, 577 N.W.2d 366 (Ct. App. 1998); See Kenefick v. Hitchcock, 187 Wis.2d 218, 230-32, 522 N.W.2d 261 (Ct. App. 1994)), the Court can and should consider any undisputed material facts of the case which dictate that one or more provisions within the policy do/do not apply if they paint a picture different from that portrayed by the plaintiff’s complaint. See e.g. Chapman v. Physicians Service Ins. Corp., 187 Wis.2d 540, 542-43, 523 N.W.2d 152 (Ct. App. 1994)

-Affidavit of insured, simply asserting that he/she didn’t intend the actions and/or the harm that resulted is a very popular way to oppose motion for summary judgment. Must start with the argument that intent can be determined objectively and if such affidavits were dispositive, intentional acts exclusions would be useless.

III. TRIAL ISSUES

A. MOTIONS IN LIMINE

-Criminal convictions-In cases where the insured has been convicted of a crime or crimes stemming from the behavior which is the subject of the lawsuit, the insured can be expected to bring a motion to prevent mention of such convictions. Evidence of a no contest plea is probably inadmissible in a subsequent civil proceeding. See In Matter of Estate of Safran, 102 Wis.2d 79, 306 N.W.2d 27 (Ct. App. 1981). Evidence of a guilty plea or a conviction is not only admissible, but may be used for offensive collateral estoppel (issue) preclusion in cases where the insured maintains defense of innocence or where he maintains lack of intent to do the act (i.e. accident). See Michele T. v. Crozier, 173 Wis.2d 681, 495 N.W.2d 327 (1992). Guilty plea can be used against plaintiff as well as insured in intentional acts cases. See N.N. v. Moraine Mutual Ins. Co., 153 Wis.2d 84, 450 N.W.2d 445 (1990).

-In cases involving potentially criminal conduct where the insured was not officially charged or was acquitted, motions should be made to exclude any mention of this fact. Courts have almost universally concluded that such information does not constitute relevant evidence. See, e.g. Cook v. Auto Club Ins. Ass’n, 217 Mich. App. 414, 552 N.W.2d 661; Krueger v. State Farm Fire and Cas. Co., 510 N.W.2d 204 (1993); Kelly’s Auto Parts, No.1, Inc. v. Boughton, 809 F.2d 1247 (6th Cir. 1987); Terrio v. McDonough, 16 Mass. App. Ct. 163, 450 N.E.2d 190 (1983)

B. ORDER OF PROOF

-Insurance company quite obviously has the burden of production/proof and therefore presents their case first.

C. BURDEN OF PROOF

- Machery v. Home Ins. Co., 184 Wis. 2d 1, 516 N.W.2d 434 (Ct. App. 1995). Commands that the “middle burden” of proof is to be used: jury must be convinced to a reasonable certainty by evidence that is clear, satisfactory and convincing. Court relies on Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980), in which Supreme Court concluded that the middle burden is appropriate, “in the class of cases involving fraud, or which undue influence is a specie, gross negligence, and civil actions involving criminal acts…” Id. at 299.

-Based on the rationale that a greater degree of certitude should be required when finding against the defendant will subject them to the stigma attached to the commission of certain types of acts.

-May have an argument for ordinary civil burden where your trial theory is not aimed at attempting to prove that the defendant intentionally inflicted the actual harm, but that he/she intended some lesser degree of harm or that his/her actions were of a highly dangerous character such that harm was substantially certain to result.

D. JURY INSTRUCTION/SPECIAL VERDICT

-Fight against the use of unmodified Wis JI-Civil 2001in cases of highly dangerous conduct. Instruction does not reflect the rule laid out in Raby: that some types of behavior are so inherently dangerous to the well being and safety of others that intent may be inferred from nature of the act.

- Judicial Committee note indicates that the only case consulted in coming up with this instruction was Gouger v. Hardke, 167 Wis.2d 504, 463 N.W.2d 882 (1992) (case where student threw object similar to piece of chalk at friend during class causing eye damage).

-Judicial Council notes also indicate that the instruction, “needs to be preceded or followed by the negligence instruction (JI Civil 1005).” Inference is that instruction was not drafted with the intentional acts case in mind/instruction does not reflect accurate and complete body of law on intentional act exclusions.

-Ask for jury instruction to include the key language from Raby

-Get two inquiries on the special verdict!

(1) Immediately prior to the incident, did the defendant actually intend to cause some harm to the plaintiff?

(2) Immediately prior to the incident, were the actions of the defendant almost certain to cause such harm?

(SEE ATTACHED SAMPLE)

E. MOTION FOR A DIRECTED VERDICT

Make an attempt to take the decision out of the jury’s hands after putting in the evidence .

IV. DEFENSES TO INTENTIONAL ACTS EXCLUSIONS

A. SELF-DEFENSE

- Berg v. Fall, 138 Wis.2d 115, 405 N.W.2d 701 (1987). Insured/defendant was a man who was allegedly attacked by a coworker who outweighed him by more than 100 pounds and towered over him in height. The insured admitted that once his larger attacker had taken a swing at him, he swung back, striking his attacker in the mouth. The Court of Appeals, noting the Wisconsin Supreme Court’s reluctance to interpret an insurance policy so as to penalize persons who are innocent of wrongdoing, stated that, “a reasonable insured would not expect to be denied coverage under this policy for his or her exercise of a legal privilege, regardless of the intentional character of the privileged act.”

B. INTOXICATION

-Wisconsin Supreme Court has not precluded the use of intoxication as a defense to negate intent, although it rejected it in a case where the insured had pleaded guilty to sexual assault charge. See N.N. v. Moraine Mutual Ins. Co., 153 Wis.2d 84, 450 N.W.2d 445 (1990)

V. APPEAL

A. If Motion to Bifurcate the case has been granted, losing a motion for summary judgment can be considered a “final order” and an appeal should be attempted immediately upon the adverse decision instead of waiting until the disposition of the merits of the action.

B. In Raby case, though the case was lost at trial level, Court of Appeals reversed not due to trial errors but on the grounds that the trial court erred in applying the law to the facts.