Yother v. McCrimmon

Per Curiam. Plaintiffs minor son rode the same school bus as defendant’s two stepdaughters. De *132 fendant’s stepdaughters complained to defendant on numerous occasions that plaintiffs son would pinch and harass them on the bus while en route to school. When the boy’s behaviour persisted, defendant approached the youth and threatened to break his "damn little arms” unless he left the girls alone. Later thát same evening plaintiff drove to defendant’s residence and confronted defendant. Following a short exchange of words, plaintiff grabbed defendant by the shirt and pushed his back up against the exterior wall of defendant’s garage. In response defendant threw plaintiff to the ground, grabbed a tire iron from the floor of the garage, and, when plaintiff got to his feet, struck him with the iron on the left side of the head. Plaintiff fell to the ground, dazed, but was later able to leave defendant’s property under his own power. Defendant pled guilty to a charge of aggravated assault in connection with this incident. Plaintiff thereafter filed a complaint against defendant to recover damages for the injuries he sustained as a result of the assault. Upon receipt of the complaint, defendant contacted Auto Club Insurance Association (Auto Club) and requested both representation and coverage on the basis of a homeowner’s insurance policy then in effect. Under "Coverage E” of the policy, Auto Club had agreed to defend any lawsuit against defendant which sought damages for personal injury and, further, to pay for those damages in the event defendant became legally obligated to do so. The policy, however, contained the following exclusion —"This policy does not apply: 1. Under Coverage E — Personal Liability * * * f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.” Pursuant to this exclusion, Auto Club, after the trial *133 court granted its motion for leave to intervene to file a complaint for declaratory relief, filed a complaint for declaratory relief in which it denied any obligation or responsibility toward defendant in connection with his intentional assault in the principal action. Defendant then filed a cross-complaint against Auto Club seeking representation and coverage. Auto Club thereafter filed a motion for summary judgment which was granted by the court on May 29, 1984. In its order the court found that defendant intended both his conduct and the resulting injury to plaintiff. This finding was premised on defendant’s plea-based conviction of aggravated assault. Defendant appeals as of right from the court’s order granting summary judgment in favor of Auto Club. Defendant first contends that summary judgment was improper as a question of fact existed under the language of the exclusion clause as to whether defendant intended to injure plaintiff. Defendant concedes that he intended to hit plaintiff with the tire iron but argues that he acted in self defense with the sole intention of protecting himself. In passing on a motion for summary judgment under GCR 1963, 117.2(3), a court may consider pleadings, affidavits, depositions, admissions, and other documentary evidence then available to it. Wright v White Birch Park, Inc, 118 Mich App 639, 646; 325 NW2d 524 (1982). The evidence must be considered in the light most favorable to the party opposing the motion. This same party should also be given the benefit of any reasonable doubt. Wright, supra. Viewing the evidence in a light most favorable to defendant, we agree that summary judgment was proper under the facts of this case. The exclusion in defendant’s homeowner’s policy includes *134 injuries which are either "expected or intended” from defendant’s standpoint. The injury sustained by plaintiff was the natural, foreseeable, and "expected” result of defendant’s intentional act of wielding a tire iron. This conduct was therefore outside of the scope of coverage of the instant policy. Wright, supra, p 645. See Group Ins Co of Michigan v Morelli, 111 Mich App 510, 516; 314 NW2d 672 (1981), Iacobelli Construction Co, Inc v The Western Casualty & Surety Co, 130 Mich App 255, 264; 343 NW2d 517 (1983), and Farm Bureau Mutual Ins Co v Rademacher, 135 Mich App 200; 351 NW2d 914 (1984). Defendant next contends that the trial court improperly considered his plea-based conviction of aggravated assault in determining that defendant intended to injure plaintiff. We do not agree. The use of defendant’s plea-based conviction under these circumstances must be factually distinguished from the situation where a defendant’s criminal conviction is offered against him as proof of culpability in a civil action arising out of the same criminal occurrence, e.g, if plaintiff herein were to offer defendant’s conviction in the principal action as proof that defendant was liabile for damages. Such a use is prohibited. Wheelock v Eyl, 393 Mich 74, 79; 223 NW2d 276 (1974). Rather, in the instant case, defendant’s conviction was advanced by his insurer in a pretrial proceeding to deny coverage under an insurance contract. Imperial Kosher Catering, Inc v The Travelers Indemnity Co, 73 Mich App 543, 545; 252 NW2d 509 (1977). Compare Danish Inn, Inc v Drake Ins Co of New York, 126 Mich App 349; 337 NW2d 63 (1983). Defendant was not being sued by the insurer for damages, nor was his conviction being offered by the insurer as proof of liability in a civil suit. We find no error. Affirmed.