FARMERS AUTOMOBILE INS. ASS'N v. Medina , 29 Ill. App. 3d 224 ( 1975 )

Mr. JUSTICE GUILD

delivered the opinion of the court:

The plaintiff insurance company filed this declaratory judgment action to determine whether they were required to defend under the provisions of a homeowner’s policy issued to Ralph Medina and Mathilda A. Medina, parents of Robert Sapp, a minor. The trial court found in favor of the defendants and the plaintiff insurance company appeals.

The sole question presented herein is the interpretation of the following exclusionary clause found in the policy:

“This policy does not apply:

1. Under Coverage E — Personal Liability and Coverage F—

Medical Payments to Others.

* # #

f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

In considering similar exclusionary clauses the courts in this and other states have repeatedly stated the test is whether the injmy was not caused intentionally but was, rather, an unintended result of an intentional act.

The minor defendant herein, Robert Sapp, intentionally flipped matches upon a gasoline spot located behind or directly under the rear end of a parked Cadillac. The spot ignited and burned the automobile. At the time of the incident Sapp and three other young people were picking grapes at or near an alley in the vicinity of the automobile. After the fire the four young people gave statements to the police department. The statement of one girl included the following:

“* * * Robert, he seen [sic] the gas leaking from a car that was parked in the alley * * * and he [Robert] told us he was going to throw a match at the gas. We turned around and seen [sic] him threw [sic] it. He ran towards us and we all walked down to the park. He was bragging about it.”

The other girl stated in her statement to the police:

‘While we were picking grapes Sap [sic] noticed that the car had a gas leak * * * He mentioned it to us. Pam and I got the grapes we wanted and started walking back to the park. We were almost to the park when Sap [sic] came back running and told us how he had threw [sic] a match and it set the car on fire.”

The third statement from Brian Moberly contained the following:

“At this time Bob Sapp asked me for some matches and I gave some to him. After I had given them to him he told me that he was going to light the car.”

The defendant Sapp’s statement to the police contained the following:

‘We saw gas just dripping out of a ’68 Caddy. I asked Brian Moberly for some matches and he gave them to me * * * I lite [sic] another match and I thought it went out and I threw it and it went straight into the gas.”

The four statements were admitted into evidence. At the trial the witness Moberly admitted that Sapp had made the statement that “he was going to light the car.” He further stated that the statement was true. The witness Moberly further testified that the spot which was ignited was partially underneath the vehicle and ran out behind the vehicle. The defendant Sapp testified that the spot in question was about a foot behind the rear bumper of the vehicle and was about the size of a basketball. However, he denied that he noticed the gasoline dripping from the car as he had stated to the police at the time of the incident. In substance he denied that he intended to bum the automobile. He further testified that the spot might have been oil but that “I didn’t really care what it was.” He further testified that if he had known it was gasoline he wouldn’t have flipped matches at it and stated, “Oil will bum at 500°.”

The trial court, in substance, found that the intentional act of the minor defendant caused an unintended result. The court stated in its decision:

“There is another question of fact, and that is whether the boy when he flipped the matches obviously intended to light something. You don’t flip a match unless you intend to do something, particularly when you are flipping matches at a particular spot that looks like it might result in the presence of a flame. So that I believe he flipped the matches in the oil spot intending to light the oil. However, I do not believe that when he flipped the matches in the oil spot he intended to burn up the Cadillac.”

In examining the various court decisions both in this State and from other jurisdictions we find that the courts have considered this exclusionary clause, and a most comparable one, which reads as follows:

“To injury * * * caused intentionally by or at the direction of the insured.”

It is to be noted that the exclusionary clause in the case before us contains the expression or word “expected.” The term “expected” has been judicially construed to mean a high degree of certainty. (Aetna Casualty & Surety Co. v. Martin Bros. Container & Timber Products Corp. (D.C. Ore. 1966), 256 F.Supp. 145.) In several cases which have considered exclusionary clauses containing the term “expected” in addition to the term “intended” the courts have failed to find that the addition of the term “expected” affected the outcome of the case. (See Vanguard Insurance Co. v. Cantrell (1972), 18 Ariz.App. 486, 503 P.2d 962; Lyons v. Hartford Insurance Group (1973), 125 N.J.Super. 239, 310 A.2d 485; Walker v. Champion (La. App. 1973), 274 So.2d 840. Cf. City of Burns v. Northwestern Mutual Insurance Co. (Ore. 1967), 434 P.2d 465.) It is possible to envision situations in which the inclusion of the term “expected” in an insurance exclusionary clause could alter the outcome of a suit which required interpretation of the clause; however, in view of the result we reach herein, we find that further discussion of the distinctions between the terms “intended” and “expected” is unnecessary.

As far as we are able to determine, the only case in Illinois involving the construction of a similar exclusionary clause which, incidentally, did not contain the word “expected” is found in Smith v. Moran (1965), 61 Ill.App.2d 157, 209 N.E.2d 18, an opinion of this court. In that case we held that “the injury to the plaintiff was not intentially caused by the defendant, but was an unintentional result of an intended act * * (61 Ill.App.2d 157, 163, 209 N.E.2d 18, 21.)

A compendium of cases interpreting this type of exclusionary clause is found in 2 A.L.A.3d 1238. No useful purpose would be served in discussing all of the cases found therein, but attention is directed to three specific cases which are cited therein. One of the first cases, and most oft cited, is that of Baldinger v. Consolidated Mutual Insurance Co. (1961), 15 App. Div. 2d 526, 222 N.Y.S.2d 736, affd (1962), 11 N.Y.2d 1026, 183 N.E.2d 908. The court there considered an exclusionary clause reading as follows:

“To injury * * * caused intentionally by or at the direction of the insured.”

The court stated:

“The rule is well settled that the language used in an insurance contract must be given its ordinary meaning — the meaning which the average policyholder of ordinary intelligence, as well as the insurer, would attach to it. If an exclusion of liability is intended which is not apparent from the language employed, it is the insurers responsibility to make such intention clearly known. [Citations].” 15 App. Div. 526, 526, 222 N.Y.S.2d 736, 738.

In Eisenman v. Hornberger (1970), 438 Pa. 46, 264 A.2d 673, the court considered a case involving an exclusionary clause where the defendants, one of whom was the insured, while in the act of burglarizing a house, used matches to illuminate their way so that they would not have to turn on the lights. One of the matches was dropped into an overstuffed chair and a fire occurred which destroyed the house and furnishings. The court, in holding that the exclusionary clause did not apply and that the insurance company was obligated to defend, stated:

“As noted before, while there are no Pennsylvania cases dealing with such an exclusionary clause in a homeowner’s policy, the vast majority of courts which have considered such a provision have reached the conclusion that before the insurer may validly disclaim liability, it must be shown that the insured intended by his act to produce the damage which did in fact occur. Annot. 2 A.L.R.3d 1238 (1965)." 438 Pa. 46, 49, 264 A.2d 673, 674.

In a New Jersey case, Lyons v. Hartford Insurance Group (1973), 125 N.J.Super. 239, 310 A.2d 485, the court considered an exclusionary clause which read substantially as the one before us, to-wit: “which is either expected or intended.” The court considered cases from numerous jurisdictions involving this issue and stated that:

“The general rule is that coverage exists under insuring and exclusion clauses identical or similar to the ones involved here for the unintended results of an intentional act, but not for damages assessed because of an injury which was intended to be inflicted.” 125 N.J. Super. 239, 245, 310 A.2d 485, 488.

In summation, the courts uniformly hold coverage under an exclusionary clause identical to or similar to the one before us is afforded where the injury was the unintended result of an intentional act.

The question thus presented herein is whether the minor defendant intended to bum the automobile in question when he ignited the gasoline under or behind the rear of the motor vehicle. The trial court, as indicated above, found that the boy intended to light the spot but did not intend to bum up the automobile. The statements of three of the four youngsters given shortly after the incident indicate the contrary. While it is true that the minor defendant, in his testimony, stated that he did not intend to bum the Cadillac, this statement is in contradiction to the statements made by the other parties. We find that the decision herein is against the manifest weight of the evidence. While the general mle is that we should not substitute our judgment for that of the trial court, who is in a better position to ascertain the facts, nonetheless, in the case before us, considering the totality of the facts presented and the statements of the other three young people present and defendant’s prior statement that he saw gasoline dripping from the car it is obvious that the defendant Sapp did, in fact, intend to ignite the motor vehicle in question. We find that the burning of the automobile was, from the evidence adduced herein, an intended result of an intentional act. From the foregoing, we find that the instant exclusionary clause does apply to the instant case and, accordingly, we reverse the judgment below. We do not find that the clause in question is ambiguous as applied to the facts presented herein.

Judgment reversed.