Auto-Owners Insurance Co. v. Harrington: Resisting the Impulse to Judicially Rewrite Exclusion Clauses

I. Introduction Individuals purchase liability insurance for one primary purpose: to shift liability to an insurer for injuries they may cause.' In order to protect themselves from liability for intentional injuries, insurance companies typically state in the policy agreement that coverage does not extend to "bodily injury . . . which is expected or intended by the insured "2 A policy with such an exclusion clause clearly does not cover injuries wrongfully caused by the intentional torts of an insured person.3 Over the past few decades, however, a more difficult issue has arisen: whether such a clause also excludes from coverage injuries caused by an insured person's intentional acts taken in self-defense.4 This Note examines a case that wrestles with this issue. In Auto-Owners Insurance Co. rs. Harrington, decided July 29, 1997, the Supreme Court of Michigan held that, according to the plain language of the exclusion clause at issue, injuries caused by intentional self-defensive acts, even if legally justifiable, are excluded from coverage; thus, an insurer has no duty to defend or indemnify an insured under such circumstances.5 Part II of this Note provides general background on how various state courts view the issue. Part III briefly outlines the facts in the Harrington case and the court's holding. Part IV analyzes the court's reasoning in detail, as well as the reasoning of other courts on both sides of the issue. This Note concludes that the Michigan court's "freedom of contract" reasoning is sound; further, it offers additional support for the view that injuries caused by intentional acts taken in self-defense are indeed "intended or expected" from the standpoint of the insured, and are thus properly excluded from coverage. II. BACKGROUND In holding that injuries caused by intentional acts taken in self-defense are excluded from coverage under an "expected or intended injury" clause, the Michigan Supreme Court joined what the Florida Supreme Court called "the majority of jurisdictions."6 While these courts recognize a legal right of individuals to defend themselves, they generally point to "the sanctity of the parties to freely contract"7 and find that the language of the exclusion clause at issue unambiguously precludes coverage.' "Other jurisdictions," however, "do not find this mechanical interpretation appropriate";9 these jurisdictions find that the language of such exclusion clauses is ambiguous and justify their holdings with various public policy arguments.lo The law on whether intentional acts taken in self-defense are properly excluded from liability coverage is, however, still in a state of flux. Many state courts have yet to address the issue, and at least one state supreme court has changed its mind as to how these clauses should be interpreted.ll Therefore, although this Note specifically examines the decision of the Michigan Supreme Court, it has broad application; it is simply a matter of time before other state courts are forced to examine (or reexamine) this issue. lII. Auto-Owners Insurance Co. v, Harrington A. Facts James Harrington (Harrington), defendant in this declaratory relief action, was the holder of a liability insurance policy issued by the plaintiff, Auto-Owners Insurance Company (AutoOwners).l3 Under the terms of this policy, Auto-Owners had a duty to pay damages resulting from "covered" bodily injuries to third parties caused by the insured and to defend the insured in civil actions arising out of such injuries.l4 The policy specifically excluded from such coverage any "bodily injury . expected or intended" by the insured.l5 During the afternoon of August 1, 1989, Brian Tew (Tew), who was living with Harrington's neighbor, became intoxicated and aggressive toward members of Harrington's family.l6 Tew's behavior became more erratic as the evening progressed; he threatened to kill Harrington's nephew and was later observed firing an automatic weapon into a nearby lake. …