{ "id": 11712775, "name": "MIKE MILLER, GINA MILLER, ROBERT EVANS MILLER, By His Guardian ad Litem, RICHARD D. RAMSEY, and ERICA MILLER, By Her Guardian ad Litem, RICHARD D. RAMSEY, Plaintiff-Appellees v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "Miller v. Nationwide Mutual Insurance", "decision_date": "1997-07-01", "docket_number": "No. COA96-1035", "first_page": "683", "last_page": "688", "citations": [ { "type": "official", "cite": "126 N.C. App. 683" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "23 ALR3d 1230", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "569 N.E.2d 906", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "58 Ohio St. 3d 189", "category": "reporters:state", "reporter": "Ohio St. 3d", "case_ids": [ 1428730 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ohio-st-3d/58/0189-01" ] }, { "cite": "412 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1992, "pin_cites": [ { "page": "320" }, { "page": "324-25", "parenthetical": "citations omitted" }, { "page": "320" }, { "page": "325" }, { "page": "321-22", "parenthetical": "citations omitted" }, { "page": "324" }, { "page": "323", "parenthetical": "citations omitted" }, { "page": "324" } ], "opinion_index": 0 }, { "cite": "330 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511365 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0697-01" ] } ], "analysis": { "cardinality": 558, "char_count": 11676, "ocr_confidence": 0.762, "pagerank": { "raw": 8.814609318593646e-08, "percentile": 0.49702453695176824 }, "sha256": "d420679838af76b0ff496771f4accda0e2fce45fd5fde26a43ac3b9203184a2c", "simhash": "1:57275438a1698550", "word_count": 1899 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and SMITH concur." ], "parties": [ "MIKE MILLER, GINA MILLER, ROBERT EVANS MILLER, By His Guardian ad Litem, RICHARD D. RAMSEY, and ERICA MILLER, By Her Guardian ad Litem, RICHARD D. RAMSEY, Plaintiff-Appellees v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nThis case was filed subsequent to an underlying action captioned Mike Miller, Gina Miller, Robert Evan Miller, by his Guardian ad Litem, Richard D. Ramsey, and Erica Miller, by her Guardian ad Litem, Richard D. Ramsey, v. Jeffrey Sean Rominger, Madison Paul Powell and Robert Wade Sears. The facts of the underlying action are pertinent to the issues in this case; they show plaintiffs Mike and Gina Miller were asleep in their home about midnight on 11 December 1993 when they were awakened by the sound of a gunshot and the screams of their daughter, Erica, also a plaintiff in this case. Mike and Gina Miller discovered a shot had been fired into their chil-drens\u2019 upstairs bedroom window, shattering the overhead light fixture and raining broken glass and the spent bullet over the sleeping children.\nThe facts showed Madison Paul Powell and two friends were riding in a pickup truck in the plaintiffs\u2019 neighborhood the night of the shooting and Madison Paul Powell fired a gun at a stop sign near the plaintiffs\u2019 home. The bullet missed the stop sign and went through the window of the plaintiff children\u2019s upstairs bedroom, breaking an overhead light fixture.\nEvidence in the underlying action included a report from a doctor who had diagnosed plaintiff Erica Miller as suffering from post-traumatic stress disorder. Evidence also showed Nationwide Mutual Insurance Company made no appearance in the underlying action, even though it had received a copy of the motion for judgment by default and notice of hearing.\nOn 8 November 1995, Forsyth County Superior Court Judge Jerry Cash Martin entered a judgment by default against Madison Paul Powell, finding the plaintiffs were entitled to recover from Madison Paul Powell and Robert Wade Sears, jointly and severally, the sum of $40,000 in compensatory damages ($5,000 each for plaintiffs Mike, Gina and Robert Miller and $25,000 for plaintiff Erica Miller) and $100,000 in punitive damages ($25,000 for each plaintiff).\nPlaintiffs subsequently filed this action against Nationwide Mutual Insurance Company (Nationwide), alleging (1) Powell is the stepson of and resided in the home of Leonard J. Brower; (2) Brower is the owner of a homeowner\u2019s policy with Nationwide; and (3) Nationwide is, therefore, liable for plaintiffs\u2019 damages. Superior Court Judge Donald R. Huffman granted plaintiffs\u2019 motion for summary judgment regarding the homeowner\u2019s policy, ruling plaintiffs are entitled to recover $100,000 from Nationwide under the terms of the policy. Nationwide appeals.\nThe homeowner\u2019s policy in question provides, \u201c [i]f a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies,\u201d Nationwide will pay up to its liability limit \u201cfor the damages for which the insured is legally liable.\u201d The policy defines \u201coccurrence\u201d as \u201can accident . . . which results, during the policy period, in: a. bodily injury; or b. property damage.\u201d The policy does not define \u201caccident.\u201d\nThe policy also has an exclusion provision for bodily injury and property damage \u201cwhich is expected or intended by the insured.\u201d\nDefendant argues that, as a matter of law, its insured\u2019s liability to the plaintiffs is not covered by the homeowner\u2019s policy because (1) the underlying incident was not an \u201caccident\u201d under the terms of the policy and (2) injury was so substantially certain to occur that intent to cause harm should be inferred.\nIn N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 412 S.E.2d 318 (1992), our Supreme Court interpreted the provisions for liability coverage and exclusion in a homeowner\u2019s policy with language much like the policy at issue here.\nIn Stox, the insured pushed a co-worker, causing her to fall and suffer a severe fracture of her right arm. The facts showed the insured intended to push the plaintiff, but did not intend to cause a fall or injury. The issue before the Stox court was whether liability for the plaintiff\u2019s injury was covered by a homeowner\u2019s liability insurance policy. Stox at 699, 412 S.E.2d at 320. The Stox court concluded the policy covered the liability and, likewise, we conclude in this case defendant\u2019s policy covers its insured\u2019s liability.\nThe Stox court stated:\nwe are guided by established rules of construction for interpreting provisions of insurance policies. Provisions ... \u201cwhich extend coverage must be construed liberally so as to provide coverage, whenever possible by reasonable construction.\u201d It is also well settled that when an insurance policy contains no ambiguity, it shall be construed according to its terms, but when ambiguity exists the policy shall be construed in favor of coverage and against the insurer who selected its language.\nStox at 707, 412 S.E.2d at 324-25 (citations omitted).\nIn Stox, as here, the homeowner\u2019s insurance policy used the term \u201coccurrence\u201d and defined it as \u201can accident. . . which results, during the policy period, in: a. bodily injury; or b. property damage.\u201d Stox at 700, 412 S.E.2d at 320. And, as in this case, the homeowner\u2019s policy at issue in Stox did not define the term \u201caccident.\u201d The Stox court concluded, \u201cwhere the term \u2018accident\u2019 is not specifically defined in an insurance policy, that term does include injury resulting from an intentional act, if the injury is not intentional or substantially certain to be the result of the intentional act.\u201d Stox at 709, 412 S.E.2d at 325. Based on that conclusion, we find no merit in defendant\u2019s argument that the incident at plaintiffs\u2019 home was not an accident. The record in this case, including defendant\u2019s brief, indicates Powell intended to shoot a stop sign when he fired a shot into the plaintiff children\u2019s bedroom window. Following the incident, Powell pleaded guilty to shooting within the city limits and received a 30-day suspended sentence. Nothing in the record suggests Powell intended to shoot at plaintiffs\u2019 home or intended to cause damage to the home or injury to the plaintiffs. Under Stox, the incident must be viewed as an accident covered by the homeowner\u2019s policy.\nDefendant also argues the damage and injury suffered by the plaintiffs was so substantially certain to occur that intent to cause harm should be inferred. With this argument, defendant strives to avoid coverage under the exclusion terms of its policy. Again, like the Stox court, we note the rules of construction that govern insurance policy provisions: \u201c[Exclusionary provisions are not favored and, if ambiguous, will be construed against the insurer and in favor of the insured.\u201d Stox at 702, 412 S.E.2d at 321-22 (citations omitted). Defendant has failed to show its exclusion terms apply in this case.\nThe character of the insured\u2019s act did not rise to the level which would require that an intention to inflict an injury be inferred. Therefore we conclude that in order to avoid coverage on the basis of the exclusion for expected or intended injuries in the insurance policy at issue in this case, the insurer must prove that the injury itself was expected or intended by the insured. Merely showing the act was intentional will not suffice.\nStox at 706, 412 S.E.2d at 324.\nIn determining that \u201c[mjerely showing the act was intentional will not suffice,\u201d Id., the Stox court cited with approval Physicians Insurance Co. v. Swanson, 58 Ohio St. 3d 189, 569 N.E.2d 906 (1991), a case with circumstances comparable to those in this case. In Swanson,\nthe insured, a teenage boy, shot a BB gun at a group of teenagers approximately seventy to one hundred feet away. According to the testimony of the insured, he was aiming at a sign ten to fifteen feet above the group to scare them. Unfortunately, one of the BBs struck one of the teenagers in the right eye causing him to lose that eye. The Supreme Court of Ohio held that the exclusion for bodily injury which is \u201cexpected or intended\u201d by the insured was inapplicable. The Court reasoned:\n\u201c[I]n order for an exclusion of this nature to apply, an insurer must demonstrate not only that the insured intended the act, but also that he intended to cause harm or injury. The rationale for this rule of law is twofold. First, the plain language of the policy is in terms of an intentional or expected injury, not an intentional or expected act. Were we to allow the argument that only an intentional act is required, we would in effect be rewriting the policy. Second, . . . many injuries result from intentional acts, although the injuries themselves are wholly unintentional.\u201d\nStox at 705, 412 S.E.2d at 323 (citations omitted). Defendant has not shown its insured expected or intended injury to the plaintiffs.\nDefendant attempts to draw comparisons between this case and a number of other cases in which homeowner\u2019s insurance coverage was not extended to liability for various wrongful acts by an insured because the actions of the insured were deemed to be \u201csubstantially certain\u201d to cause injury. Defendant goes so far as to refer to the \u201cfactual similarity\u201d between those cases and this case. The cases defendant cites, however, involve wrongful acts ranging from sexual molestation to unfair and deceptive trade practices; they simply are not comparable to this case, which involves a youth firing a pistol at a stop sign. We think the language our Supreme Court used in Stox is particularly applicable here: \u201cThe character of the insured\u2019s act did not rise to the level which would require that an intention to inflict an injury be inferred.\u201d Stox at 706, 412 S.E.2d at 324.\nNo error.\nJudges EAGLES and SMITH concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "William M. Speaks, Jr., for plaintiff-appellees.", "Wilson & Iseman, L.L.P., by G. Gray Wilson and Elizabeth Horton, for defendant-appellant." ], "corrections": "", "head_matter": "MIKE MILLER, GINA MILLER, ROBERT EVANS MILLER, By His Guardian ad Litem, RICHARD D. RAMSEY, and ERICA MILLER, By Her Guardian ad Litem, RICHARD D. RAMSEY, Plaintiff-Appellees v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant\nNo. COA96-1035\n(Filed 1 July 1997)\nInsurance \u00a7 725 (NCI4th)\u2014 youth firing at stop sign \u2014 hitting plaintiffs\u2019 house\u2014 youth\u2019s homeowner\u2019s liability coverage \u2014 accident\u2014inferred intent\nThe trial court did not err by granting summary judgment for plaintiffs in an action alleging that defendant insurance company was liable for damages awarded in an action which arose when the stepson of the insured homeowner fired a pistol at a stop sign and missed, the bullet entered the window of plaintiff-children\u2019s bedroom, plaintiffs suffered post-traumatic stress syndrome, a default judgment was entered against the stepson, and plaintiffs then brought this action under the stepfather\u2019s homeowner\u2019s policy, which provides coverage for injury caused by an accident without defining accident, and which has an exclusion for injury which is expected or intended. The record and defendant\u2019s brief indicate that the stepson intended to shoot a stop sign and nothing indicates that he intended to shoot at plaintiffs\u2019 home or intended to cause damage to the home or injury to plaintiffs. The-incident must be viewed as an accident. Cases cited by defendant to support the contention that intent to cause harm should be inferred involve wrongful acts ranging from sexual molestation to unfair and deceptive trade practices, which are not comparable to a youth firing at a stop sign.\nAm Jur 2d, Insurance \u00a7 727.\nPremises liability insurance: coverage of injury sustained on or in connection with sidewalks or ways adjacent to certain named property. 23 ALR3d 1230.\nAppeal by defendant from judgment entered 26 June 1996 by Judge Donald R. Huffman in Forsyth County Superior Court. Heard in the Court of Appeals 2 June 1997.\nWilliam M. Speaks, Jr., for plaintiff-appellees.\nWilson & Iseman, L.L.P., by G. Gray Wilson and Elizabeth Horton, for defendant-appellant." }, "file_name": "0683-01", "first_page_order": 721, "last_page_order": 726 }