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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 Robert P. Young, Jr. 

# Opinion

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 toindemnify its insureds in connection with anunder lying 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 de fine d in the insurance policy at issue. Consequently, an “occu rrence” 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 KevinLaBelle on December 15, 1995, at the home of defendants Ernest and P atr icia McCarn, where their grandson, then si xteen-year-old defendant Robert McCarn, also resided. On that day, Robert re moved from under Ernest’s bed a shotgun Robert’s father had given him the year b efore . 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.

2Nancy LaBelle, representing Kevin’s estate, brought the underlying action against Robert and his grandparents, Ernest and Patricia McCarn, who had a homeowners insurance policy withplaintiff Allstate. Allstate brought the present action, seeki ng a d eclaratory judgment that it had no duty to indemnify defendants Robert, Ernest, or Patricia McCarn. Plaintiff and defendants moved for summary dispositionin 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 un publis hed opinion. 1 The Court attemptedto apply our recent decisions in Nabozny v Burkhardt 2 and Frankenmuth Mut Ins Co v Masters 3 and concluded that “Robert’s intentional actions c reat ed 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). 3II Indetermining 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 obligatedto pay because of bodi ly 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 “occurrenc e.” T he term “occurrence” is defin ed i n 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.”

4III Inthe instant case, the policy defines an occurrence as

anaccident, but does not define what constitutes an accident. Insimilar cases where the respective policie s de fined an

occurrence as an accident, without defining accident, we have examined t he co mmon 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 ex pected .’” Masters at 114, quoting Arco Ind Corp v American Motorists Ins Co , 448 Mich395, 404-405; 531 NW2d 168 (1995)(opinion of Mallett, J.); Auto Club Group Ins Co v Marzonie , 447 Mich 624, 631; 527 NW2d 760 (19 94); M etropolitan Property & Liability Ins Co v DiCicco , 432 Mich 656, 670; 443 NW2d 734 (1989). Accidents are evalua ted from the standpoint of the insured, not the injured party. Masters at 114, n 6. In Masters, we held that “the appropriate fo cus of the term ‘accident’ must be on both ‘the injury- causin g act or event andits 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 int en tionally, “a problem arises ‘in attempting to distinguish betweenintentional acts that can be classified as “accidents” and those that cannot.’” Id. In Masters at 115-116, we appliedthe 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 shouldhave been expect ed be cause 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. Sim ilar ly, . . . when an insured’s intentional actions cr eate a direct risk of harm, th ere can be no liability coverage for an y resulting damage or injury, despite the lack of an actual intent to damag e or injure.” [Emphasis in original.] What this essentially boils down to is that, if both the act and the consequences wer e intended by the insured, the act does not constitute an accident. On the other hand, if the act was inten ded 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 personwoul d

6have expected the consequences, but whether t he ins ured reasonably should have expected the consequences. Accordingly, an objective foreseeabi litytest should not be used in the present context. Rather, the analysis must be that, to avoid coverage, the consequence of the intended act, whichcreate d a di rect risk of harm, reasonably should have been expected by the insured. The policy lang uage dictates whether a subjective or objective standard is to be used. 4 However, the policy language her e does not indicate whether a subjective or objective standard is to be used. Because “[t]he definition of accident should be fr ame d 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 h ere . 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 th e insured,” also dictat es a s ubjective standard , Fire Ins Exchange v Diehl , 450 Mich 678, 685; 545 NW2d 602 (1996). 7reasonably should have been expected because of the direct risk of harm intentionally createdby the insured’s actions.” Id. at 115. In our judgment, the language “by the insured” modifies both“intended” and “ex pect ed.” Therefore, there is no coverage where the consequences of the insured’ s ac t were eith er “ intended by the insured” or “reasonably should have been expe cted 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 culpabil it y 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 “inten tionally 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

8intentionally 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 inc orrect in concluding that this Court adopted an objective test in Masters . As previously stated, in our judgment, the language “by the insured” modifies both “in tended” and “expected,” indicating a subjective test. A sub ject ive 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,” thu s an “occurrence,” covered under the insurance policy. We agree with plaintiff that Robert intended to point the gun at Ke vin and pull the trigger. Howe ver , Robert believed the gun was not loaded. Robert had no intentionof firing a loaded weapon. No bodily injury would have been caused by Robert’s intended act of pulling the trigger of an unloaded gun.

9The 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 rec ord t o reasonably support a conclusion that, contrary to Robert’s test imony 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 pulledthe 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 al ter the fact that he picked up the gun, po inte d it, pulled back the hammer and pulled the trigger. Further, Robert made statements at his de posit ion 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 discha rge of the gun,

10Robert called 91 1. Th us, there is nothing to reasonably indicate that Robert entertained knowledge that the gun might have been loaded. Inshort, it would be speculation to suggest that Robert in tentionally shot his friend or was conscious o f a nontheoretical possibility that a shell was in the gun when he pulledthe 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 expectedthe consequences. We simply cannot agree because the language of the test adopted in Masters requires us to subjectively analyze what Robert thought when he pu lled the trigger. Robert thought he was pulling the trigger of an

un loaded gun. 5

5 The dissent asse rts that this opinion makes “the insured’s subjective belief rega rding the status of the gun definitive.” Post at 12. While this is not inaccurate, this shouldnot 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 total ity of the circumstances, including the reasonableness or credibility of the insured’s assertions, evidence of "other acts," evidence (continued...) 11Robert 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 neg ligence 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 cons ider ed 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 insuredforgot to unload the gun the las t 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 insuredreasonably should have expected those consequences. If that were t rue, the only covered occurrences would be inexplicable ones.

6 The dissent asserts that Robert’s prior use of the gun should be cons ider ed 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 t he consequence. 12simply didnot rise to the level that he should have expected to result in harm. Otherwise, liability ins uran ce 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 th at i t undermines the ability of insureds to protect themselves against their own foolish or neglige nt act s. If court s 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 increasing lydifficult to recover on claims arising from injuries set in motion by foolhardy conduct on their own part

or o n the part of their families. However, the impetus for i nsur ance 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 tomanslaughter. 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 n o legal relevance to this case. Regardless, even if we assume Robert’s guilt of manslaughter inconnection with this case, that does not change the fact that th e 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. 13wrong, but to insure oneself for foolishor negligent actions that go wrong. Indeed, it is obviously th e lat ter that are

more likely to go astray and to precipitate the desire for insurance. Under the diss ent’ s approach, however, only the former actions wou ld b e clearly covered “accidents,” or, at least, would clearly avo id disputes over coverage with insurers Further, under the dissent’s approach, only occurrences that were truly unexplainable would be covere d “a ccidents.” For, in retrospect, a sufficiently diligent i nsure r 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, andwith sufficient effort, a connection between

an o ccurrence and a prior action on the part of the insured

caninvariably 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 t oo fast on a highway, not intending to but nonetheless causing anaccident, it canhardly be denied that what has resulted is an accident despite the fact that it mi ght be traceable to “objectively unreasonable” conduct by the insured, i.e. driving too fast on a highway.

14IV 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 unde r t he 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 withhim. 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 c oncluded that the injury was not an accident. In Masters , the insured and his son intentionally set a fire, intending to cause damage intheir 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 p rovide coverage under the circumstances. Our reasonwa s 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.

15The difference between this case and Nabozny and Masters , however, is that here, while the act was intended, the result

was not. 8 Th us, 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 unloadedgun. Similarly, unlike Masters, where the consequence of the act was intended, here the consequence—shot leavin g 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, ind eed 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 , t he insureds made precisely the same claim as presented here–that they did not i ntend the result of their deliberate acts.” Post at 8 (emphasis inoriginal). 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 brokenankle. So, again, this case is different from Masters and Nabozny because there the insureds did intendthe results of their delib erate 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. 16discharge 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 crimi nal act that, under the policy’s criminal acts exclusion, negates Allstate’s d ut y to indemnify the insureds. The Court of Appeals did not reach this issue because it concluded that Robert’s actions created a dire ct 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 becau se Rob ert did not intend or reasonably expect that his actio ns, pointing and pulling a trigger of an unloaded gu n, wouldcause 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 c rimi nal-acts exception in this policy excludes coverage. K ELLY , T AYLOR , andM ARKMAN , JJ., concurred withC AVANAGH , 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 cas e s hould be remandedto 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 tha t t he shooting incident here constituted an “accident” and thus an “occurrence” under the policy. The major it y essentiallyadulterates any consistent or coherent applic ation of the standards set forth by this Court just two terms ago in Masters 1 and later applied in Nab ozny 2 concerning the differentiationbetween an a ccid ent and an intentional act. The majority’s effor t to d istinguish the facts of this case f rom 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 o f t his 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 s umma ry disposition in favor of plaintiff. I. ADDITIONAL F ACTS According to Robert McCarn’s deposition testimony, he and KevinLaBelle 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).

3Before retrieving the shotgun, McCarn testified that (continued...) 2from under his g randfa ther’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 fr ighten LaBelle into sharing the crackers, 4 McCarnintentionally pointed the shotgun at LaBelle withthe barrel being approximately one foot away from LaBelle’s face. McCarnagain 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 pulle d th e trigger. The weapon discharged and LaBelle was killed. As a result of the death, McCarn pleaded nolo contendere to manslaughter, MCL 750.321. Inboth his statem ent 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, we nt 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.” 3that it was unlo aded b efore pulling the trigger. McCarn statedthat he had owned the gun “for at least a year” before the shooting and had successfully completed a gun safety

course. He a lso 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. M ASTERS AND N ABOZNY The policy lang uage i n this case and in Masters and Nabozny are identical . Each policy provided coverage for an “occurrence,” which was later defined as an “accid ent.” Accident was not further defined. A. M ASTERS 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 providedcoverage 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.

4The 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 contin genc y, a casualty, a happening by chance, something not anticipated, . . . and not naturally to be expected.” Id . at 114. Having defined acciden t, w e nevertheless recognized the difficulty of categorizing cases inwhich the action giving rise to the harm was intended even thoughthe 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 “reas onably should have expected” the harm the insured’s act s created. We adopted this objective standard from Justi ce G RIFFIN’S concurrence in Auto Club Group Ins Co v Marzonie , 447 Mich 624, 648-649; 527 NW2d 760 (1994): Insuch 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 ins ure d’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, th ere can be no liability coverage for any resulting damage or injury, despite the la ck of an actual intent to damage or 5injure. [ 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 t he har m that resulted, damage to the clothing store and surrounding businesses, was different from

or exce eded t he harm intended, minor damage to the clothing inventory.” Id . at 116-117. We later appli ed this same objective test in Nabozny . B. N ABOZNY 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,” whic h, i n turn, was defined as “an accident”. 461 Mich 474. As in the presen t case, th e insured claimed that the injury he caused was a covered occurrence because he didnot intend to break the plaintiff’s ankle. We unanimously rejected that argument, holding: Inthis case, Mr. Burkhardt apparently did not intendto break Mr. Nab ozny'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 cr eated . 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 didnot intend to "break any bones" does not assist him. In our quote from Marzonie, Justice G RIFFIN 6cited Piccard, which explained: “[W]h ere a direct risk of harm is intentionally created, andp roperty damage or per sonal injury results, there is no liabilit y coverage even if th e sp ecific 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 statedby th e insured, that injury reasonably should have been expected. The refor e, 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 ree mpha sizing that in bothMasters and Nabozny the policy language we construed was identical to the policy language contained in the present case. H ere, 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 whenthe insured himself did not anticipate such consequences. Thus, in Masters and Nabozny we decline d t o view the expectation of the injury from the subjective perspective of the insureds in making the determination whether an accident occurred. C. T HE M AJORITY’S M ISAPPLICATION OF M ASTERS AND N ABOZNY The majority erroneously states that the “difference”

7betweenthe present case and Masters andNabozny “is that here, while the act was intended, the result was not.” Slip op at 16. 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. Robert intended to pull the trigger of his shotgun, but he testified that he didnot intend to cause any physical injury to his friend. The que stion 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 h ead of his friend, cocked the hammer, and pulled the trigger. The purported differe nce between this case and Masters and Nabozny has been created by the majority, which has i mpos eda 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] determinationmust 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...) 8Here, 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 poin t the gun at Kevin and pull the trigger. [7] However, Robert believed th at 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 “expec te d.” This is grammatically incorrect. Infact, 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 anobjective 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 fo r co llusion between an insured and a plaintiff. See Nabozny, supra at 479, n 10.

6 This Court is free to abandon for sufficient reason its ownprecedent. When it does so, it should do it openly and provide justification. Here the majority abandons the rule it establishedin 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, en gaged the hammer and pulledthe trigger in order to frighten his friend during their dispute over crackers. 9is why we must c onsider h is act of pointing a shotgun at another person and pulling the trigger from Robe rt’s subjective perspective. 8 Under the Masters test, the question is whether the insured “reasonably” should have expected the

con sequence 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 intendedact 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 subjecti ve 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, t he 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 t he policy language that provides a basis for using a rule of construction favoring coverage. Mast ers , supra at 111. Because we considered the very contract term at issue here, “accident,” in Maste rs and Nabozny and found no ambiguity, the majority has no warrant to “construe” that term in any different fashion in this case.

9Yet another flaw in the majority op inio n is that it attempts to divide the “intentional a ct” i nto 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. Wi thout basis, the majority subdivides the intentional act into two components, the voluntary act and the chain of events that the volitional (continued...) 10what Robert’s reasonable expectations should have b een , not what his actual subjective beliefs may or may not have been, are the focus of the Masters standard. The majority erroneously mai nt ains that the test we articulated in Masters and Nab ozny is a subjective one. However, the majority fail s to explain our objective applicationof the test inboth 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 Mich656; 443 NW2d 734 (1989), six justices, including the author of the current majority opinion, agreed that “‘reasonably be expected’ is unambiguous” and “requires applicationof an objective standard of expectation.” 432 Mich688. 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 Na boz ny utilizes the same language that has beenconstrued by this Court as requiring an objective

9 (...continued) act sets into motion—the consequences. The int entional 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. 11standard 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 con clus ion 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 adoptedby the majority, neither the holding nor the outcome in Masters or Nabozny could be sustained today. III. A PPLICATION OF M ASTERS AND N ABOZNY Inthe present case, it is uncontested that Robert McCarn i ntentionally aimed the weapon at the victim, engaged th e 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 A s s uch, the acts admitted by the insured constitute felonious assault, MCL 750.82. 12intentional act and the facts and circumstances su rrou nding 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. Ineach 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 p ullin g th e 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 ins ured should have reasonably expected the consequences of his intentional act. Inhis deposition testimony, McCarn testified that he consumedmarijuana 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. Howeve r, he later admitted that he intended to frighten LaBelle into parting with crackers. 11

11 The majority would prefe r 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 cov erage even if the specific result was unintended . It i s i rrelevant that the character of the harm that actually results is different from the character of the harm intended by the insured.’” 461 Mich (continued...) 13Inaddition, McCar n admi tted 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 weaponone 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 insureddefendant to provide testimony that will allo w an injured plaintiff to recover from the insurer rat her than directly from the defendant.” Id. , at 479, n 10. As stated, I do not believe that reasonable jurors could conclude that Robert’s st ated b eliefs about the harm he was creating were

reas onable. Inasmuch as the reasonableness of Rober t’ s expectations about the harm he created is the critical issue for the purpose of coverage under this policy, summary dispositionin 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 la te r 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. 14an accident as a matter of law. C ONCLUSION Because I be lieve that Robert reasonably should have expectedthe consequences of his a ctions in light of the direct risk of harm he created, I would affirm summary disposition in favor of plaintiff. 13 C ORRIGAN , C.J., and WEAVER , J., concurred with Y OUNG , J.

13 As to the issue of how direct a harm the insured’s actions created, this would be a muchcloser question—and one requiring a trial—if evidence were presentedthat the insured had checked the gun and mistakenly (or negligently) determined that it was unloaded before pulling the trigger. 15