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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 11, 2002
 

ALLSTATE INSURANCE COMPANY,
 

Plaintiff-Appellee,
 

v No. 118266
 

ROBERT DANIEL MCCARN, a Minor;


ERNEST WARD MCCARN; PATRICIA


ANN MCCARN,
 

Defendants,
 

and
 

NANCY S. LABELLE, Personal


Representative of the Estate of


KEVIN CHARLES LABELLE, Deceased,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

CAVANAGH, J.
 

This is an action for declaratory judgment. Allstate
 

Insurance Company seeks a determination of its obligation to
 
indemnify its insureds in connection with an underlying
 

wrongful death suit stemming from the shooting death of Kevin
 

LaBelle.
 

We hold that the shooting death of Kevin LaBelle was
 

“accidental” and, thus, an “occurrence” as defined in the
 

insurance policy at issue. Consequently, an “occurrence”
 

gives rise to Allstate’s liability under the policy.
 

Therefore, we reverse the decision of the Court of Appeals and
 

remand to the Court of Appeals to decide whether the criminal
 

acts exception in this policy excludes coverage.
 

I
 

This case arises out of the death of sixteen-year-old
 

Kevin LaBelle on December 15, 1995, at the home of defendants
 

Ernest and Patricia McCarn, where their grandson, then
 

sixteen-year-old defendant Robert McCarn, also resided. On
 

that day, Robert removed from under Ernest’s bed a shotgun
 

Robert’s father had given him the year before. The gun was
 

always stored under Ernest’s bed and was not normally loaded.
 

Both Robert and Kevin handled the gun, which Robert believed
 

to be unloaded. When Robert was handling the gun, he pointed
 

it at Kevin’s face from approximately one foot away. Robert
 

pulled back the hammer and pulled the trigger and the gun
 

fired, killing Kevin.
 

2
 
Nancy LaBelle, representing Kevin’s estate, brought the
 

underlying action against Robert and his grandparents, Ernest
 

and Patricia McCarn, who had a homeowners insurance policy
 

with plaintiff Allstate. Allstate brought the present action,
 

seeking a declaratory judgment that it had no duty to
 

indemnify defendants Robert, Ernest, or Patricia McCarn.
 

Plaintiff and defendants moved for summary disposition in
 

the declaratory action. The trial court granted defendants’
 

motions for summary disposition and denied plaintiff’s,
 

holding that the events constituted an “occurrence” within the
 

meaning of Allstate’s policy. The trial court also held that
 

Robert McCarn’s conduct was not intentional or criminal within
 

the meaning of Allstate’s policy.
 

Allstate appealed to the Court of Appeals, which reversed
 

the trial court in an unpublished opinion.1 The Court
 

attempted to apply our recent decisions in Nabozny v
 

Burkhardt2

 and Frankenmuth Mut Ins Co v Masters3 and concluded
 

that “Robert’s intentional actions created a direct risk of
 

harm that precludes coverage.”
 

Defendant LaBelle sought leave to appeal. We granted
 

leave.
 

1 Issued October 3, 2000 (Docket No. 213041).
 

2 461 Mich 471; 606 NW2d 639 (2000).
 

3 460 Mich 105; 595 NW2d 832 (1999).
 

3
 
II
 

In determining whether Allstate must indemnify the
 

McCarns, we examine the language of the insurance policies and
 

interpret their terms pursuant to well-established Michigan
 

principles of construction. Masters at 111. 


An insurance policy must be enforced in accordance with
 

its terms. Id. If not defined in the policy, however, we
 

will interpret the terms of the policy in accordance with
 

their “commonly used meaning.” Id. at 112, 114.
 

The McCarns’ homeowners insurance policy provides in
 

pertinent part:
 

Subject to the terms, conditions and
 

limitations of this policy, Allstate will pay


damages which an insured person becomes legally


obligated to pay because of bodily injury or


property damage arising from an occurrence to which


this policy applies, and is covered by this part of


the policy. 


According to the plain meaning of the policy, liability
 

coverage for damages arises from an “occurrence.” The term
 

“occurrence” is defined in the insurance policy as: “an
 

accident, including continuous or repeated exposure to
 

substantially the same general harmful conditions during the
 

policy period, resulting in bodily injury or property damage.”
 

Our task, therefore, is to determine whether the case
 

before us involved an “accident.”
 

4
 
III
 

In the instant case, the policy defines an occurrence as
 

an accident, but does not define what constitutes an accident.
 

In similar cases where the respective policies defined an
 

occurrence as an accident, without defining accident, we have
 

examined the common meaning of the term. In such cases, we
 

have repeatedly stated that “‘an accident is an undesigned
 

contingency, a casualty, a happening by chance, something out
 

of the usual course of things, unusual, fortuitous, not
 

anticipated and not naturally to be expected.’” Masters at
 

114, quoting Arco Ind Corp v American Motorists Ins Co, 448
 

Mich 395, 404-405; 531 NW2d 168 (1995)(opinion of Mallett,
 

J.); Auto Club Group Ins Co v Marzonie, 447 Mich 624, 631; 527
 

NW2d 760 (1994); Metropolitan Property & Liability Ins Co v
 

DiCicco, 432 Mich 656, 670; 443 NW2d 734 (1989). 


Accidents are evaluated from the standpoint of the
 

insured, not the injured party. Masters at 114, n 6. In
 

Masters, we held that “the appropriate focus of the term
 

‘accident’ must be on both ‘the injury-causing act or event
 

and its relation to the resulting property damage or personal
 

injury.’” Id. at 115, quoting Marzonie at 648 (Griffin, J.,
 

concurring) (emphasis in original).
 

We also stated that “‘an insured need not act
 

unintentionally’ in order for the act to constitute an
 

5
 
‘accident’ and therefore an ‘occurrence.’” Id.
 

Where an insured does act intentionally, “a problem
 

arises ‘in attempting to distinguish between intentional acts
 

that can be classified as “accidents” and those that cannot.’”
 

Id.
 

In Masters at 115-116, we applied the following standard
 

from Justice Griffin’s concurrence in Marzonie at 648-649.
 

[A] determination must be made whether the


consequences of the insured’s intentional act
 

“either were intended by the insured or reasonably


should have been expected because of the direct


risk of harm intentionally created by the insured’s


actions. When an insured acts intending to cause


property damage or personal injury, liability


coverage should be denied, irrespective of whether


the resulting injury is different from the injury


intended. Similarly, . . . when an insured’s


intentional actions create a direct risk of harm,


there can be no liability coverage for any


resulting damage or injury, despite the lack of an


actual intent to damage or injure.” [Emphasis in


original.]
 

What this essentially boils down to is that, if both the act
 

and the consequences were intended by the insured, the act
 

does not constitute an accident. On the other hand, if the
 

act was intended by the insured, but the consequences were
 

not, the act does constitute an accident, unless the intended
 

act created a direct risk of harm from which the consequences
 

should reasonably have been expected by the insured.
 

As to the perspective from which the analysis should be
 

made, the question is not whether a reasonable person would
 

6
 
have expected the consequences, but whether the insured
 

reasonably should have expected the consequences.
 

Accordingly, an objective foreseeability test should not be
 

used in the present context. Rather, the analysis must be
 

that, to avoid coverage, the consequence of the intended act,
 

which created a direct risk of harm, reasonably should have
 

been expected by the insured.
 

The policy language dictates whether a subjective or
 

objective standard is to be used.4 However, the policy
 

language here does not indicate whether a subjective or
 

objective standard is to be used. Because “[t]he definition
 

of accident should be framed from the standpoint of the
 

insured . . . ,” Masters at 114, and because, where there is
 

doubt, the policy should be construed in favor of the insured,
 

id. at 111, we conclude that a subjective standard should be
 

used here. Further, in Masters, this Court, faced with
 

similar policy language, concluded that there is no coverage
 

where the insured intended his action, and the consequences of
 

this intended action “either were intended by the insured or
 

4 For example, a policy that excludes coverage of bodily


injury that is expected “from the standpoint of the insured,”


dictates a subjective standard, Metropolitan Property &
 

Liability Ins Co v DiCicco, companion case to Allstate Ins Co
 

v Freeman, 432 Mich 656, 709; 443 NW2d 734 (1989), just as a


policy that covers bodily injury not expected “by the


insured,” also dictates a subjective standard, Fire Ins
 

Exchange v Diehl, 450 Mich 678, 685; 545 NW2d 602 (1996). 


7
 
 

reasonably should have been expected because of the direct
 

risk of harm intentionally created by the insured’s actions.”
 

Id. at 115. 


In our judgment, the language “by the insured” modifies
 

both “intended” and “expected.” Therefore, there is no
 

coverage where the consequences of the insured’s act were
 

either “intended by the insured” or “reasonably should have
 

been expected by the insured.” The language, “by the
 

insured,” indicates that a subjective standard should be used
 

here. Fire Ins Exchange v Diehl, 450 Mich 678, 685; 545 NW2d
 

602 (1996). Although, “[n]egligence alone is not sufficient
 

to prevent the death from being an accident within the meaning
 

of the policy,” Collins v Nationwide Life Ins Co, 409 Mich
 

271, 277; 294 NW2d 194 (1980), when the acts of the insured
 

rise to the level of a “direct risk of harm intentionally
 

created”—a level of culpability only slightly lower than
 

intentionally acting to produce an intended harm–coverage is
 

precluded, where the insured reasonably should have expected
 

the harm, as the situation is virtually indistinguishable from
 

intentionally causing the harm.
 

Further, the “direct risk of harm” must have been
 

“intentionally created by the insured’s actions.” This
 

language shows that the Masters test is not objective. On the
 

contrary, the inquiry is entirely subjective–did the insured
 

8
 
intentionally create a direct risk of harm? In this case,
 

there was no intentional creation of a direct risk of harm
 

because of the undisputed evidence that Robert McCarn believed
 

he was pulling the trigger of an unloaded gun.
 

The dissent is incorrect in concluding that this Court
 

adopted an objective test in Masters. As previously stated,
 

in our judgment, the language “by the insured” modifies both
 

“intended” and “expected,” indicating a subjective test. A
 

subjective test is not only consistent with Masters and
 

Nabozny, it is the required test, based on the language the
 

Masters Court adopted from Marzonie. Accordingly, we are not
 

abandoning the rule established in Masters, as the dissent
 

contends; rather, we are simply adhering to this rule. See
 

post at 9, n 6.
 

Applying these principles to the present case, viewed
 

from the standpoint of the insured, we hold that Kevin
 

LaBelle’s death was an “accident,” thus an “occurrence,”
 

covered under the insurance policy. We agree with plaintiff
 

that Robert intended to point the gun at Kevin and pull the
 

trigger. However, Robert believed the gun was not loaded.
 

Robert had no intention of firing a loaded weapon. No bodily
 

injury would have been caused by Robert’s intended act of
 

pulling the trigger of an unloaded gun.
 

9
 
The dissent states:
 

What is the direct risk of harm consonant with
 

pulling the trigger of a firearm? The obvious risk
 

is that the weapon, if loaded, might discharge and


cause an injury. In my view, the evidence adduced


at the summary disposition stage warrants the


conclusion that the insured should have reasonably


expected the consequences of his intentional act.


[Slip op at 13.]
 

We agree that this case does not present a question of
 

fact. The fact that Robert believed the gun was unloaded is
 

a matter about which there is no genuine issue of material
 

fact. This is because there is nothing in the record to
 

reasonably support a conclusion that, contrary to Robert’s
 

testimony that he believed the gun was unloaded, he
 

consciously believed the gun was loaded, or even contemplated
 

that there was any possibility that it was loaded when he
 

pulled the trigger. Even plaintiff, the insurer, acknowledged
 

that Robert believed the firearm was unloaded when he pulled
 

the trigger:
 

McCarn’s subjective, although erroneous,


belief that the firearm was not loaded does not
 

alter the fact that he picked up the gun, pointed


it, pulled back the hammer and pulled the trigger.
 

Further, Robert made statements at his deposition to
 

support his belief that the gun was not loaded: Robert and
 

Kevin were “horsing around” with the gun as they had done on
 

previous occasions; Robert was surprised when the gun actually
 

fired; and, immediately following the discharge of the gun,
 

10
 
 

Robert called 911. Thus, there is nothing to reasonably
 

indicate that Robert entertained knowledge that the gun might
 

have been loaded.
 

In short, it would be speculation to suggest that Robert
 

intentionally shot his friend or was conscious of a
 

nontheoretical possibility that a shell was in the gun when he
 

pulled the trigger. Clearly, such speculation cannot suffice
 

to establish even a genuine issue of material fact, let alone
 

to conclude that Robert’s intended act of pulling the trigger
 

of an unloaded gun intentionally created a direct risk of
 

harm.
 

The dissent goes to great lengths to show that under an
 

objective standard, the insured should have reasonably
 

expected the consequences. We simply cannot agree because the
 

language of the test adopted in Masters requires us to
 

subjectively analyze what Robert thought when he pulled the
 

trigger. Robert thought he was pulling the trigger of an
 

unloaded gun.5
 

5 The dissent asserts that this opinion makes “the


insured’s subjective belief regarding the status of the gun


definitive.” Post at 12. While this is not inaccurate, this
 

should not be confused with making the insured’s own
 

assertions of his subjective belief definitive. A subjective


test does not require courts to simply accept uncritically the


insured’s own assertions regarding his subjective belief.


Instead, courts must examine the totality of the
 

circumstances, including the reasonableness or credibility of


the insured’s assertions, evidence of "other acts," evidence


(continued...)
 

11
 
Robert McCarn may have been negligent in failing to see
 

if the gun was loaded before he pulled the trigger,
 

particularly because he was the last person to use the gun
 

weeks earlier for target practice. However, the issue of
 

negligence is not before us. As we stated in Collins, the
 

negligence of the insured in acting as he did is not enough to
 

prevent an incident from being an accident if the consequence
 

of the action (e.g., shot coming from a gun) should not have
 

reasonably been expected by the insured.6
 

While it may be considered quite obvious that Robert’s
 

conduct was careless and foolish, it was negligence that
 

5(...continued)


concerning the faculties or the maturity of the insured,


evidence concerning relationships between an insured and a


victim of an injury, and so forth. In this case, there is


simply no evidence to suggest that the insured intended shot


to be discharged from this gun when he pulled its trigger. 


Further, that the insured can now logically explain how


the accidental shooting most likely occurred, i.e., that the


insured forgot to unload the gun the last time he used it,


does not transform an otherwise accidental shooting into an


intentional creation of a direct risk of harm. Merely because


one can explain, after the fact, how an insured’s actions


inexorably led to certain consequences does not mean that that


insured reasonably should have expected those consequences.


If that were true, the only covered occurrences would be


inexplicable ones.
 

6 The dissent asserts that Robert’s prior use of the gun


should be considered in deciding whether Robert should have


reasonably anticipated the harm caused. However, at most, the


prior use of the gun would establish Robert was negligent. In
 

Michigan, the test is not whether the insured was negligent,


but whether the insured should have reasonably expected the


consequence.
 

12
 
simply did not rise to the level that he should have expected
 

to result in harm. Otherwise, liability insurance coverage
 

for negligence would seem to become illusory. We must be
 

careful not to take the expectation of harm test so far that
 

we eviscerate the ability of parties to insure against their
 

own negligence.7
 

The problem, as we see it, with the dissent’s opinion is
 

that it undermines the ability of insureds to protect
 

themselves against their own foolish or negligent acts. If
 

courts are to review the acts of insureds for “objective
 

reasonableness,” as the dissent proposes, the very purpose of
 

insurance would be compromised as insureds would find it
 

increasingly difficult to recover on claims arising from
 

injuries set in motion by foolhardy conduct on their own part
 

or on the part of their families. However, the impetus for
 

insurance is not merely, or even principally, to insure
 

oneself for well thought out and reasoned actions that go
 

7

 The dissent refers to Robert’s nolo contendere plea to


manslaughter. Slip op at 3. However, given that such a nocontest plea does not have the effect of an admission for any


other proceeding than the one in which it is entered, MCR


2.111(E)(3), that plea has no legal relevance to this case.


Regardless, even if we assume Robert’s guilt of manslaughter


in connection with this case, that does not change the fact


that the shooting was an accident. Similarly, the dissent


refers to Robert having smoked marijuana, slip op at 3, n 3,


but this has no serious relevance to the issues at hand.
 

Smoking marijuana did not affect the establishment of intent


by Robert.
 

13
 
wrong, but to insure oneself for foolish or negligent actions
 

that go wrong. Indeed, it is obviously the latter that are
 

more likely to go astray and to precipitate the desire for
 

insurance. Under the dissent’s approach, however, only the
 

former actions would be clearly covered “accidents,” or, at
 

least, would clearly avoid disputes over coverage with
 

insurers
 

Further, under the dissent’s approach, only occurrences
 

that were truly unexplainable would be covered “accidents.”
 

For, in retrospect, a sufficiently diligent insurer could
 

almost always determine the physical cause of an accident,
 

tracing it back to some prior conduct by the insured that
 

should have been performed differently. Actions have
 

consequences, and with sufficient effort, a connection between
 

an occurrence and a prior action on the part of the insured
 

can invariably be identified. However, merely because, in
 

retrospect, an insurer is able to identify such a connection,
 

does not mean that what took place was not an “accident.” If
 

one is driving too fast on a highway, not intending to but
 

nonetheless causing an accident, it can hardly be denied that
 

what has resulted is an accident despite the fact that it
 

might be traceable to “objectively unreasonable” conduct by
 

the insured, i.e. driving too fast on a highway. 


14
 
IV
 

Contrary to what our dissenting colleagues state, we are
 

not abandoning or calling into question the rule from Masters
 

in any way. The facts of this case are distinguishable from
 

Masters and Nabozny, where we held that specific acts failed
 

to qualify as accidents under the respective insurance
 

policies. In Nabozny, the plaintiff broke his ankle during a
 

fight when the insured tripped him. The insured, while not
 

intending to break the plaintiff’s ankle, did intend to fight
 

with him. This and the effort to trip during the fight was
 

the creation of a direct risk of physical harm that should
 

have caused the insured to reasonably expect the consequences
 

that ensued. Thus, we concluded that the injury was not an
 

accident.
 

In Masters, the insured and his son intentionally set a
 

fire, intending to cause damage in their clothing store only,
 

but that ultimately destroyed not just their store, but also
 

a neighboring building. We held that the applicable insurance
 

policy, which precluded coverage for intentional acts, did not
 

provide coverage under the circumstances. Our reason was
 

that, when the insured acted by starting a fire, it is
 

irrelevant that the consequence, which was burning property,
 

was different in magnitude from that intended.
 

15
 
The difference between this case and Nabozny and Masters,
 

however, is that here, while the act was intended, the result
 

was not.8 Thus, unlike in Nabozny, Robert should not have
 

reasonably expected the consequences that ensued from his act
 

because his intended act was merely to pull the trigger of an
 

unloaded gun. Similarly, unlike Masters, where the
 

consequence of the act was intended, here the consequence—shot
 

leaving the gun—was not intended. Furthermore, even if one
 

used some variation on a foreseeability test, no bodily harm
 

could have been foreseen from Robert’s intended act, because
 

he intended to pull the trigger of an unloaded gun, and, thus,
 

it was not foreseeable, indeed it was impossible, under the
 

facts as Robert believed them to be, that shot would be
 

discharged. Therefore, we cannot say Robert should have
 

expected the unfortunate consequences of his act. The
 

8

 The dissent contends that “[t]here is no such
 

‘difference’ among these three cases. Rather, in both Masters
 

and Nabozny, the insureds made precisely the same claim as


presented here–that they did not intend the result of their
 

deliberate acts.” Post at 8 (emphasis in original). What the
 

dissent is missing is that the insureds in Masters and Nabozny
 

did intend the results of their deliberate acts–the fire and
 

the tripping; they just did not intend the magnitude of those


results–the burning down of the neighboring building and the


broken ankle. So, again, this case is different from Masters
 

and Nabozny because there the insureds did intend the results
 

of their deliberate acts, while here the insured did not
 

intend the result–the firing of shot–of his deliberate act–the


shooting of a gun that he believed to be unloaded.
 

16
 
discharge of the shot was an accident and entitled to coverage
 

unless a policy exclusion applies.
 

V
 

Allstate maintains that Robert McCarn’s actions
 

constitute a criminal act that, under the policy’s criminal
 

acts exclusion, negates Allstate’s duty to indemnify the
 

insureds. The Court of Appeals did not reach this issue
 

because it concluded that Robert’s actions created a direct
 

risk of harm that precluded coverage. We remand this case to
 

the Court of Appeals to decide this issue.
 

VI
 

We hold today that Kevin LaBelle’s death was an
 

“accident,” and thus an “occurrence,” covered under the policy
 

because Robert did not intend or reasonably expect that his
 

actions, pointing and pulling a trigger of an unloaded gun,
 

would cause any bodily injury to Kevin LaBelle. We reverse
 

the judgment of the Court of Appeals and remand to the Court
 

of Appeals to decide whether the criminal-acts exception in
 

this policy excludes coverage. 


KELLY, TAYLOR, and MARKMAN, JJ., concurred with CAVANAGH, J.
 

17
 
___________________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

ALLSTATE INSURANCE COMPANY,
 

Plaintiff-Appellee,
 

No. 118266
 

ROBERT DANIEL MCCARN, a Minor;


ERNEST WARD MCCARN; PATRICIA


ANN MCCARN,
 

Defendants,
 

and
 

NANCY S. LABELLE, Personal


Representative of the Estate of


KEVIN CHARLES LABELLE, Deceased,
 

Defendant-Appellant.
 

YOUNG, J. (concurring in part and dissenting in part).
 

I agree with the majority that this case should be
 

remanded to the Court of Appeals so that the applicability of
 

the intentional act and criminal act policy exclusions can be
 

decided. However, I respectfully dissent from that portion of
 

the majority opinion that concludes that the policy provides
 

indemnity coverage because the majority finds that the
 

shooting incident here constituted an “accident” and thus an
 

“occurrence” under the policy. The majority essentially
 
adulterates any consistent or coherent application of the
 

standards set forth by this Court just two terms ago in
 

Masters1 and later applied in Nabozny2 concerning the
 

differentiation between an accident and an intentional act.
 

The majority’s effort to distinguish the facts of this case
 

from Masters and Nabozny are hollow and simply debases the
 

clear standard set forth in those opinions.
 

I believe that the application of the definition of the
 

term “accident” we recently announced in Masters and Nabozny,
 

in which we construed identical policy language, requires an
 

objective view of the insured’s actions. 


Under the facts of this case, the insured should have
 

reasonably expected the consequences created by pointing a gun
 

at another and pulling the trigger without checking to verify
 

that it was unloaded. Accordingly, I would affirm summary
 

disposition in favor of plaintiff.
 

I. ADDITIONAL FACTS
 

According to Robert McCarn’s deposition testimony, he and
 

Kevin LaBelle went to McCarn’s house after school. At some
 

point in the afternoon,3 McCarn retrieved his .410 shotgun
 

1
 Frankenmuth Mut Ins Co v Masters, 460 Mich 105; 595
 

NW2d 832 (1999).
 

2 Nabozny v Burkhardt, 461 Mich 471; 606 NW2d 639 (2000).
 

3
 Before retrieving the shotgun, McCarn testified that


(continued...)
 

2
 
from under his grandfather’s bed. Both boys handled the
 

weapon. 


LaBelle and McCarn argued over crackers; LaBelle had the
 

crackers and refused to share them with McCarn when asked to
 

do so. Attempting to frighten LaBelle into sharing the
 

crackers,4 McCarn intentionally pointed the shotgun at LaBelle
 

with the barrel being approximately one foot away from
 

LaBelle’s face. McCarn again asked LaBelle for the crackers,
 

but LaBelle declined to share them. McCarn pulled the hammer
 

back, pretended to pull the trigger “a couple” times, and then
 

actually pulled the trigger. The weapon discharged and
 

LaBelle was killed. As a result of the death, McCarn pleaded
 

nolo contendere to manslaughter, MCL 750.321.
 

In both his statement to the police and his deposition
 

testimony, McCarn stated that he thought the gun was unloaded
 

and would simply “click” when the trigger was pulled. McCarn
 

acknowledged, however, that he did not check the gun to verify
 

3

(...continued)


he and LaBelle got something to eat after school, went to a


friend’s house for ten minutes, smoked “[o]ne joint and a


bowl” of marijuana, watched videos, and played with a guinea


pig and a hedgehog.
 

4 While earlier in his testimony, McCarn denied pointing


the gun at LaBelle with the intention of frightening him,


stating that he was “just playing,” he also admitted that he


thought the anticipated clicking sound “would be frightening”


to LaBelle. Later on in his testimony, McCarn admitted that


he was “attempting to frighten” LaBelle “into giving [him] the


crackers.”
 

3
 
that it was unloaded before pulling the trigger. McCarn
 

stated that he had owned the gun “for at least a year” before
 

the shooting and had successfully completed a gun safety
 

course. He also admitted that he had last used the gun
 

without his grandparent’s permission for target practice weeks
 

before the shooting. On this prior occasion, McCarn was “in
 

a hurry” to put the gun away because he did not want his
 

grandparents to catch him using the weapon without their
 

supervision. McCarn could not recall if he had unloaded the
 

shotgun in his hurry to put the weapon away. 


II. MASTERS AND NABOZNY
 

The policy language in this case and in Masters and
 

Nabozny are identical. Each policy provided coverage for an
 

“occurrence,” which was later defined as an “accident.”
 

Accident was not further defined. 


A. MASTERS
 

Masters involved an intentionally set fire that had the
 

unintended result of destroying nearly a block of business
 

establishments. As in this case, the policy in Masters
 

provided coverage for an “occurrence,” which was later defined
 

in the policy as “an accident.” 460 Mich 113. The insureds
 

claimed that the event was an accident because, although the
 

fire in their business premises was deliberately set, they did
 

not intend to damage the adjoining buildings. 


4
 
The Court of Appeals applied a subjective standard in
 

assessing whether the insured arsonists expected or intended
 

to burn properties other than their own. This Court reversed.
 

We first gave “accident” its customary, ordinary meaning as an
 

“undesigned contingency, a casualty, a happening by chance,
 

something not anticipated, . . . and not naturally to be
 

expected.” Id. at 114. Having defined accident, we
 

nevertheless recognized the difficulty of categorizing cases
 

in which the action giving rise to the harm was intended even
 

though the consequences were not. We unanimously held that an
 

insured’s intentional actions precluded coverage even though
 

the insureds claimed not to have intended the consequences of
 

their actions where the insured “reasonably should have
 

expected” the harm the insured’s acts created. We adopted
 

this objective standard from Justice GRIFFIN’S concurrence in
 

Auto Club Group Ins Co v Marzonie, 447 Mich 624, 648-649; 527
 

NW2d 760 (1994):
 

In such cases, a determination must be made


whether the consequences of the insured’s
 

intentional act either were intended by the insured


or reasonably should have been expected because of
 

the direct risk of harm intentionally created by


the insured’s actions. When an insured acts
 

intending to cause property damage or personal


injury, liability coverage should be denied,


irrespective of whether the resulting injury is


different from the injury intended. Similarly,
 

. . . when an insured’s intentional actions create
 

a direct risk of harm, there can be no liability
 

coverage for any resulting damage or injury,
 

despite the lack of an actual intent to damage or
 

5
 
injure. [Masters, 460 Mich at 115-116 (Emphasis


added.)]
 

Granting summary disposition to the insurer, this Court
 

held that, because the Masters intended to cause harm, “[i]t
 

is irrelevant whether the harm that resulted, damage to the
 

clothing store and surrounding businesses, was different from
 

or exceeded the harm intended, minor damage to the clothing
 

inventory.” Id. at 116-117. We later applied this same
 

objective test in Nabozny.
 

B. NABOZNY
 

Similarly, in Nabozny, the plaintiff was injured in a
 

fight with the insured. The policy at issue was identical to
 

the one in Masters and this case, and provided coverage for an
 

“occurrence,” which, in turn, was defined as “an accident”.
 

461 Mich 474. As in the present case, the insured claimed
 

that the injury he caused was a covered occurrence because he
 

did not intend to break the plaintiff’s ankle. We unanimously
 

rejected that argument, holding:
 

In this case, Mr. Burkhardt apparently did not


intend to break Mr. Nabozny's ankle. However, it


is plain that in tripping someone to the ground in


the course of a fight, Mr. Burkhardt reasonably
 

should have expected the consequences of his acts
 

because of the direct risk of harm created. This
 

precludes a finding of liability coverage under the


terms of this policy. In other words, the injury


did not result from an "accident."
 

Moreover, Mr. Burkhardt's testimony that he


did not intend to "break any bones" does not assist


him. In our quote from Marzonie, Justice GRIFFIN
 

6
 
cited Piccard, which explained:
 

“[W]here a direct risk of harm is
 

intentionally created, and property damage or


personal injury results, there is no liability


coverage even if the specific result was
 

unintended. It is irrelevant that the character of
 

the harm that actually results is different from


the character of the harm intended by the insured.”
 

It is clear from the facts, as stated by the


insured, that injury reasonably should have been


expected. Therefore, it is irrelevant that the


broken ankle was not the specific harm intended by


the insured. [Id. at 480-481 (citations omitted).]
 

It is worth reemphasizing that in both Masters and
 

Nabozny the policy language we construed was identical to the
 

policy language contained in the present case. Here, like
 

Masters and Nabozny, the insured engaged in a deliberate act
 

but claimed that the resulting unintended consequences
 

rendered the event an accident. In both Masters and Nabozny,
 

this Court rejected this argument and held that there was no
 

covered “occurrence” because the insured reasonably should
 

have expected the consequences of his intentional actions—even
 

when the insured himself did not anticipate such consequences.
 

Thus, in Masters and Nabozny we declined to view the
 

expectation of the injury from the subjective perspective of
 

the insureds in making the determination whether an accident
 

occurred.
 

C. THE MAJORITY’S MISAPPLICATION OF MASTERS AND NABOZNY
 

The majority erroneously states that the “difference”
 

7
 
between the present case and Masters and Nabozny “is that
 

here, while the act was intended, the result was not.” Slip
 

op at 16. There is no such “difference” among these three
 

cases. Rather, in both Masters and Nabozny, the insureds made
 

precisely the same claim as presented here—that they did not
 

intend the result of their deliberate acts. Robert intended
 

to pull the trigger of his shotgun, but he testified that he
 

did not intend to cause any physical injury to his friend.
 

The question for the purpose of coverage is whether the
 

shooting can be considered an accident because Robert should
 

not have reasonably expected the consequences when he
 

intentionally aimed his shotgun at the head of his friend,
 

cocked the hammer, and pulled the trigger.
 

The purported difference between this case and Masters
 

and Nabozny has been created by the majority, which has
 

imposed a different construction of the phrase “intentional
 

act.” As stated in Masters, this Court unanimously adopted an
 

objective test of intentionality: an intentional act causing
 

injury is not an accident if the insured actually intended the
 

harm or if the harm should reasonably have been expected.5
 

5

 To reiterate, the Masters standard is as follows: “[A]


determination must be made whether the consequences of the


insured’s intentional act ‘either were intended by the insured


or reasonably should have been expected because of the direct
 

risk of harm intentionally created by the insured’s actions.’”


The majority attempts to avoid applying an objective standard,


(continued...)
 

8
 
Here, the majority fails to apply the objective Masters
 

test of intentionality, instead substituting a subjective
 

one.6 The majority states that “[w]e agree with plaintiff
 

that Robert intended to point the gun at Kevin and pull the
 

trigger.[7] However, Robert believed that the gun was not
 

loaded. Robert had no intention of firing a loaded weapon.
 

No bodily injury would have been caused by Robert’s intended
 

act of pulling the trigger of an unloaded gun.” Slip op at 9
 

(emphasis added). What the majority must justify, but cannot,
 

5

(...continued)


urging that, in the Masters standard, “by the insured”


modifies both “intended” and “expected.” This is
 

grammatically incorrect. In fact, grammatically speaking, the


phrases “intended by the insured” and “reasonably should have


expected” modify “consequences.” Therefore, the Masters
 

standard unqualifiedly and grammatically requires an inquiry


into the reasonableness of the insured’s expectations


concerning the consequences of his intentional acts. This is
 

an objective inquiry, not, as the majority contends, a


subjective one.
 

It appears to me that this Court wisely chose to use an


objective definition of accident in Masters because it creates
 

a disincentive for collusion between an insured and a
 

plaintiff. See Nabozny, supra at 479, n 10.
 

6

 This Court is free to abandon for sufficient reason its
 

own precedent. When it does so, it should do it openly and


provide justification. Here the majority abandons the rule it
 

established in Masters after years of contradictory precedent


without acknowledging (1) that it has done so or (2) why it is


justified in doing so.
 

7 I note that the majority would have no factual or legal


basis for concluding otherwise, because defendant admitted


that he intentionally aimed the gun, engaged the hammer and


pulled the trigger in order to frighten his friend during


their dispute over crackers.
 

9
 
is why we must consider his act of pointing a shotgun at
 

another person and pulling the trigger from Robert’s
 

subjective perspective.8 Under the Masters test, the question
 

is whether the insured “reasonably” should have expected the
 

consequence because of the direct risk of harm he
 

intentionally created. However, the majority tautologically
 

concludes as a matter of law that “Robert should not have
 

reasonably expected the consequences that ensued from his act
 

because his intended act was merely to pull the trigger of an
 

unloaded gun.”9 Slip op at 16 (emphasis added). However,
 

8 This insistence on viewing Robert’s act from his
 

subjective perspective represents a critical flaw in the


majority opinion. The majority declares that it must employ


a subjective standard because this, as opposed to an objective


standard, aids in construing the policy in favor of coverage.


“[W]here there is doubt, the policy should be construed in


favor of the insured . . . .” Slip op at 7.
 

This is contrary to the rules of contract interpretation.


Contracts, even insurance contracts, are construed according


to their unambiguous terms. It is only when there is an


ambiguity in the policy language that provides a basis for


using a rule of construction favoring coverage. Masters,
 

supra at 111. Because we considered the very contract term at


issue here, “accident,” in Masters and Nabozny and found no
 

ambiguity, the majority has no warrant to “construe” that term


in any different fashion in this case.
 

9
 Yet another flaw in the majority opinion is that it


attempts to divide the “intentional act” into components.


Rather than view the act from the required perspective—the


consequences reasonably expected when a direct risk of harm is


created—the majority focuses on whether the insured intended


to pull the trigger of an unloaded gun. Without basis, the


majority subdivides the intentional act into two components,


the voluntary act and the chain of events that the volitional


(continued...)
 

10
 
what Robert’s reasonable expectations should have been, not
 

what his actual subjective beliefs may or may not have been,
 

are the focus of the Masters standard.
 

The majority erroneously maintains that the test we
 

articulated in Masters and Nabozny is a subjective one.
 

However, the majority fails to explain our objective
 

application of the test in both cases. In addition, the term
 

“reasonably” has consistently been construed as indicating an
 

objective rather than a subjective standard. In Allstate Ins
 

Co v Freeman, 432 Mich 656; 443 NW2d 734 (1989), six justices,
 

including the author of the current majority opinion, agreed
 

that “‘reasonably be expected’ is unambiguous” and “requires
 

application of an objective standard of expectation.” 432
 

Mich 688. In Fire Ins Exchange v Diehl, 450 Mich 678, 685;
 

545 NW2d 602 (1996), the Court held that injury “‘neither
 

expected nor intended by the insured’” required a subjective
 

standard of expectation where the policy language did “not
 

employ the term ‘reasonably.’” (Emphasis added.) The
 

majority simply refuses to acknowledge that the test adopted
 

in Masters and Nabozny utilizes the same language that has
 

been construed by this Court as requiring an objective
 

9(...continued)


act sets into motion—the consequences. The intentional act
 

committed by Robert was that of pulling the trigger of a gun.


That the gun was or was not loaded does not transform the


nature of the insured’s volitional act.
 

11
 
standard of inquiry.
 

Without offering any rationale for doing so, the majority
 

makes the insured’s subjective belief regarding the status of
 

the gun definitive, as though no contrary conclusion were
 

possible. The issue is whether, in intentionally creating a
 

direct risk of harm—pulling the trigger of a shotgun without
 

ascertaining if it was loaded—the insured should have
 

reasonably expected the consequences. Given that the
 

applicable standard is objective, the insured’s subjective
 

belief is not controlling.
 

Inexplicably, under the standard adopted by the majority,
 

neither the holding nor the outcome in Masters or Nabozny
 

could be sustained today.
 

III. APPLICATION OF MASTERS AND NABOZNY
 

In the present case, it is uncontested that Robert McCarn
 

intentionally aimed the weapon at the victim, engaged the
 

hammer, and pulled the trigger.10 Because he denied intending
 

the actual injury, the event is an “occurrence” only if he
 

should not have reasonably expected the consequences in light
 

of the direct risk of harm intentionally created.
 

The scope of the direct risk of harm created by an
 

insured’s act is necessarily dependent upon the nature of the
 

10 As such, the acts admitted by the insured constitute


felonious assault, MCL 750.82. 


12
 
intentional act and the facts and circumstances surrounding
 

the event. The direct risk of harm created by intentionally
 

throwing knives, for example, is far greater than the direct
 

risk of harm created by intentionally throwing cotton balls.
 

In each instance, the natural result of the voluntary act must
 

be considered. See 9 Couch, Insurance, 3d, § 126:27, p 126­

53. 


What is the direct risk of harm consonant with pulling
 

the trigger of a firearm? The obvious risk is that the
 

weapon, if loaded, might discharge and cause an injury. In my
 

view, the evidence adduced at the summary disposition stage
 

warrants the conclusion that the insured should have
 

reasonably expected the consequences of his intentional act.
 

In his deposition testimony, McCarn testified that he
 

consumed marijuana before taking the weapon out of storage. He
 

also testified that he believed that the gun was unloaded and
 

that he was “just playing” when he pulled the trigger of the
 

weapon. However, he later admitted that he intended to
 

frighten LaBelle into parting with crackers.11
 

11 The majority would prefer to minimize the insured’s


admitted intent to cause harm—to commit a felonious assault.
 

I do not. As we stated in Nabozny, “‘where a direct risk of


harm is intentionally created, and property damage or personal


injury results, there is no liability coverage even if the
 

specific result was unintended. It is irrelevant that the
 

character of the harm that actually results is different from
 

the character of the harm intended by the insured.’” 461 Mich
 

(continued...)
 

13
 
In addition, McCarn admitted that he did not check the
 

status of the gun before pulling the trigger. He also
 

testified that the last time he used the gun, he put it away
 

hurriedly and could not recall whether he unloaded the weapon
 

before putting it away. Further, the insured admitted that he
 

deliberately aimed the weapon one foot away from the victim’s
 

face, engaged the hammer, and pulled the trigger in an effort
 

to assault the victim.12
 

As we noted in Nabozny, “it can be in the interest of an
 

insured defendant to provide testimony that will allow an
 

injured plaintiff to recover from the insurer rather than
 

directly from the defendant.” Id., at 479, n 10. As stated,
 

I do not believe that reasonable jurors could conclude that
 

Robert’s stated beliefs about the harm he was creating were
 

reasonable. Inasmuch as the reasonableness of Robert’s
 

expectations about the harm he created is the critical issue
 

for the purpose of coverage under this policy, summary
 

disposition in favor of plaintiff is appropriate. Therefore,
 

I believe that the majority errs in holding that the event was
 

11(...continued)


481, quoting Marzonie.
 

12 The majority attempts to explain why Robert’s later


testimony about his prior use of the shotgun is not
 

dispositive. However, I cannot think of a single reason why


all the defendant’s admissions should not be considered in
 

deciding whether Robert should have reasonably anticipated the


harm he caused in using his weapon. 


14
 
an accident as a matter of law. 


CONCLUSION
 

Because I believe that Robert reasonably should have
 

expected the consequences of his actions in light of the
 

direct risk of harm he created, I would affirm summary
 

disposition in favor of plaintiff.13
 

CORRIGAN, C.J., and WEAVER, J., concurred with YOUNG, J.
 

13 As to the issue of how direct a harm the insured’s
 

actions created, this would be a much closer question—and one


requiring a trial—if evidence were presented that the insured


had checked the gun and mistakenly (or negligently) determined


that it was unloaded before pulling the trigger.
 

15