{ "id": 11080676, "name": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. JAMES L. MIZELL and DOUGLAS W. AUSTIN, Defendants", "name_abbreviation": "North Carolina Farm Bureau Mutual Insurance v. Mizell", "decision_date": "2000-06-20", "docket_number": "No. COA99-947", "first_page": "530", "last_page": "534", "citations": [ { "type": "official", "cite": "138 N.C. App. 530" } ], "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": "489 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "904", "parenthetical": "holding that \"intended or expected\" exclusion provision applied where insured \"should have expected that punching [someone] in the face would cause injury\"" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796541 ], "year": 1997, "pin_cites": [ { "page": "408", "parenthetical": "holding that \"intended or expected\" exclusion provision applied where insured \"should have expected that punching [someone] in the face would cause injury\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0405-01" ] }, { "cite": "486 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "247" }, { "page": "247" }, { "page": "248" }, { "page": "249" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712775 ], "year": 1997, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0683-01" ] }, { "cite": "412 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "324" }, { "page": "324" } ], "opinion_index": 0 }, { "cite": "330 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511365 ], "year": 1992, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0697-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1970, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "518 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "816" }, { "page": "817" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239160 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "94" }, { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0092-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] } ], "analysis": { "cardinality": 553, "char_count": 9370, "ocr_confidence": 0.764, "pagerank": { "raw": 5.588843192584699e-07, "percentile": 0.9477456021567281 }, "sha256": "71c2ff10decd167d8a6b9e858388c44f551c22777ae94ff9cde57882fa679e7e", "simhash": "1:8f70706e005aacab", "word_count": 1531 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and SMITH concur." ], "parties": [ "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. JAMES L. MIZELL and DOUGLAS W. AUSTIN, Defendants" ], "opinions": [ { "text": "WALKER, Judge.\nOn 2 February 1998, defendant Austin filed suit against defendant Mizell seeking to recover damages for personal injuries arising out of Mizell\u2019s negligent discharge of a firearm. Plaintiff North Carolina Farm Bureau Mutual Insurance Company provides homeowner\u2019s insurance coverage to Mizell. On 10 September 1998, plaintiff filed a declaratory judgment to determine whether the insurance policy covered Mizell\u2019s alleged negligence.\nIn the early morning hours of 11 August 1997, Austin came to the residence of Mizell wishing to speak to Mizell\u2019s daughter. Austin was confronted outside the home by Mizell\u2019s son-in-law, who wielded a baseball bat. Upon hearing the confrontation, Mizell came out of the house with a .38 caliber pistol and fired several shots in the air to scare Austin, who fled the premises.\nAbout one hour later, Austin returned intending to vandalize the Mizell home. Mizell heard a vehicle stop, got out of bed and picked up his .22 caliber rifle. A rock was thrown through the window of Mizell\u2019s daughter\u2019s room. Mizell came out of his house with the rifle, saw someone running away from his home who he believed had thrown the rock. According to Mizell, he estimated he fired six shots at the ground behind the prowler and above the prowler\u2019s head. At least one of the bullets fired struck Austin in the head, injuring him.\nMizell was charged with felony assault. However, the district attorney dismissed the charges, determining that Mizell acted in a negligent manner, but not intentionally such as to commit a crime. This dismissal was based upon Mizell\u2019s statement given to the district attorney, which stated:\n1. On the night of August 11, 1997,1 emerged from my house and . fired a rifle at a person who I believed to be a prowler.\n3. I fired the rifle in the general direction of the person whom I later discovered was Doug Austin, intending to scare him but certainly not intending to hit him.\nMizell thereafter insisted that he did not intend to injure Austin.\nPlaintiff\u2019s insurance policy excludes coverage for \u201cbodily injury\u201d or \u201cproperty damage\u201d:\na. Which is intended by or which may reasonably be expected to result from the intentional act or omissions or criminal acts or omissions for one or more \u2018insured\u2019 persons. This exclusion applies even if:\n(2) The \u2018bodily injury\u2019 or \u2018property damage\u2019 is of a different kind, quality or degree than intended or reasonably expected;\nThis exclusion applies regardless of whether or not one or more \u2018insured persons\u2019 are actually charged with, or convicted of, a crime.\nThe parties moved for summary judgment and the trial court granted plaintiffs motion for summary judgment, denied defendants\u2019 motion, and ordered that plaintiff \u201chas no responsibility for coverage and has no duty to defend in any tort case involving the defendants.\u201d\nDefendants argue the trial court erred in granting summary judgment for the plaintiff and denying their motion for summary judgment. Specifically, plaintiffs insurance policy covers unexpected injuries caused by intentional actions. Additionally, defendants contend there are at least factual issues to be resolved.\nSummary judgment should be granted only \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1 Rule 56(c) (1999). The party moving for summary judgment bears the burden of establishing the lack of any triable issue and may meet this burden by (1) proving that an essential element of the opposing party\u2019s claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense. See Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992).\nThe issue before this Court is whether, as a matter of law, the bodily injury inflicted by Mizell was \u201cintended by or which may reasonably be expected to result from the intentional act\u201d and is excluded from coverage under the policy.\nThe interpretation of language used in an insurance policy is a question of law, governed by well-established rules of construction. Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 94, 518 S.E.2d 814, 816 (1999). The policy is subject to judicial construction only where the language used in the policy is ambiguous and reasonably susceptible to more than one interpretation. Trust Co. v. Insurance Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). In such cases, the policy must be construed in favor of coverage and against the insurer; however, if the language of the policy is clear and unambiguous, the court must enforce the contract of insurance as it is written. Id. Ambiguity in the terms of the policy is not established simply because the parties contend for differing meanings to be given to the language. Id. Non-technical words are to be given their meaning in ordinary speech unless it is clear that the parties intended the words to have a specific technical meaning. Chatterton, 135 N.C. App. at 95, 518 S.E.2d at 817.\nDefendants cite as authority the case of N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 706, 412 S.E.2d 318, 324 (1992), where our Supreme Court held that an insurance policy\u2019s exclusion provision for bodily injury \u201cexpected or intended by the insured\u201d did not apply where the insured pushed a fellow employee to the ground, injuring her. Our Supreme Court held that the employee\u2019s fractured arm was not an \u201cexpected or intended\u201d injury within the meaning of the exclusion in the policy, because the resulting injury was not \u201csubstantially certain\u201d to result from the insured\u2019s intentional act of pushing. Further, the Stox court held that a mere showing that the act was intentional will not suffice to avoid coverage under this type of exclusion provision. Id. at 706, 412 S.E.2d at 324.\nDefendants also cite Miller v. Nationwide Mutual Ins. Co., 126 N.C. App. 683, 685, 486 S.E.2d 246, 247 (1997), where this Court interpreted a homeowner\u2019s insurance policy exclusion provision for bodily injury and property damage \u201cwhich is expected or intended by the insured.\u201d In Miller, the insured 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 plaintiffs\u2019 house, breaking an overhead light fixture. Id. at 684, 486 S.E.2d at 247. Nothing in the record suggested that the insured intended to shoot at or cause damage to the plaintiffs or their home. Id. at 686, 486 S.E.2d at 248. This Court held that the defendant insurance company failed to show that the insured \u201cexpected or intended any injury to the plaintiffs.\u201d Id. at 687, 486 S.E.2d at 249.\nBoth Stox and Miller are distinguishable from this case. In each of those cases, the insurer failed to show that the action of the insured was expected or intended to cause injury or damage. Thus, the policy language did not preclude coverage.\nAdditionally, we note that plaintiff changed its policy language in 1995 such that the policy now excludes coverage for injury or damage \u201cwhich may reasonably be expected to result from the intentional act. . . .\u201d This language now suggests the application of an objective standard as opposed to the subjective language involved in previous policy interpretations. In other words, when a person fires multiple shots from a rifle at night in the direction of a prowler who is approximately fifty feet away, that person could reasonably expect injury or damage to result from the intentional act. See e.g., Erie Ins. Group v. Buckner, 127 N.C. App. 405, 408, 489 S.E.2d 901, 904 (1997) (holding that \u201cintended or expected\u201d exclusion provision applied where insured \u201cshould have expected that punching [someone] in the face would cause injury\u201d).\nBased upon the exclusion provision contained in the policy at issue, we hold the trial court did not err in granting plaintiffs motion for summary judgment.\nAffirmed.\nJudges MARTIN and SMITH concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Harris, Shields, Creech and Ward, P.A., by C. David Creech and Charles E. Simpson, Jr., for plaintiff-appellee.", "Gaylord, McNally, Strickland & Snyder, L.L.P., by Danny D. McNally, for defendant-appellant Mizell.", "Ward and Smith, P.A., by Donald S. Higley, II and A. Charles Ellis, for defendant-appellant Austin." ], "corrections": "", "head_matter": "NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Plaintiff v. JAMES L. MIZELL and DOUGLAS W. AUSTIN, Defendants\nNo. COA99-947\n(Filed 20 June 2000)\nInsurance\u2014 homeowner\u2019s \u2014 firing to frighten prowler \u2014 exclusion for intended acts\nThe trial court did not err by granting plaintiffs motion for summary judgment in a declaratory judgment action to determine insurance coverage where plaintiff provided homeowner\u2019s insurance to defendant Mizell, who was sued by defendant Austin for personal injuries arising from Mizell\u2019s discharge of a firearm. When a person fires multiple shots from a rifle at night in the direction of a prowler who is fifty feet away, that person could reasonably expect injury or damage to result from the intentional act.\nAppeal by defendants from order entered 30 April 1999 by Judge J. Richard Parker in Pitt County Superior Court. Heard in the Court of Appeals 26 April 2000.\nHarris, Shields, Creech and Ward, P.A., by C. David Creech and Charles E. Simpson, Jr., for plaintiff-appellee.\nGaylord, McNally, Strickland & Snyder, L.L.P., by Danny D. McNally, for defendant-appellant Mizell.\nWard and Smith, P.A., by Donald S. Higley, II and A. Charles Ellis, for defendant-appellant Austin." }, "file_name": "0530-01", "first_page_order": 560, "last_page_order": 564 }