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Aloha Cary v. Allstate Insurance Co.

September 26, 1996

ALOHA CARY, PETITIONER
v.
ALLSTATE INSURANCE COMPANY, RESPONDENT



Appeal from Superior Court, Clark County; 92-2-01324-3. Honorable Robert L. Harris, Judge.

As Corrected September 30, 1996. Second Correction December 16, 1996.

Authored by Charles Z. Smith. Concurring: Barbara Durham, C.j., James M. Dolliver, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Richard B. Sanders, J.j. Philip A. Talmadge. Talmadge, J. (concurring by separate opinion).

The opinion of the court was delivered by: Smith

En Banc

SMITH, J. Petitioner Aloha Cary sought review of a decision by the Court of Appeals, Division Two, affirming a grant of summary judgment by the Clark County Superior Court in favor of Respondent Allstate Insurance Company dismissing her claim against Allstate for coverage under a homeowner's policy for a criminal act committed by a homeowner while insane. We granted review. We affirm.

QUESTION PRESENTED

The question presented in this case is whether an exclusion clause in a homeowners' insurance policy denying coverage for acts committed by an insured while insane violates public policy and thus should not be enforced.

STATEMENT OF FACTS

The facts are undisputed. In May of 1990, Aloha and Richard Cary learned their friend, Arnold Jayne Bennett, was ill. They had known him and his recently deceased wife for some years, and on prior occasions had hosted the Bennetts in their home in Vancouver, Washington. Because of their close relationship to Mr. Bennett, the Carys invited him to stay with them in an attempt to help him through his illness. *fn1 Mr. Cary traveled to Mr. Bennett's home in Haines, Alaska and urged Mr. Bennett to return with him to Vancouver. Mr. Bennett agreed and came to stay as a guest in the Cary home.

The Carys accompanied Mr. Bennett while he sought medical treatment. The physician who saw him recommended psychiatric care. Arrangements were made for him to see a psychiatrist the following morning. That morning, on or about May 19, 1990, Mr. Bennett lost control of his behavior in the Cary home and stabbed Richard Cary to death with a butcher knife. He then tried to kill the wife, Ms. Aloha Cary, who fled to an upstairs bathroom. There was a cordless telephone in the bathroom which Ms. Cary used to contact the Clark County Sheriff's Department. Sheriff's officers soon arrived and arrested Mr. Bennett. He was subsequently charged in the Clark County Superior Court with murder in the first degree and attempted murder in the first degree. After a hearing on stipulated facts, the trial court, the Honorable James D. Ladley, by order dated May 20, 1991 found him "not guilty by reason of insanity."

Petitioner Aloha Cary on June 28, 1990 in the Clark County Superior Court brought an action against Mr. Bennett for wrongful death and assault. Allstate Insurance Company, his homeowner's insurance carrier, refused to indemnify or defend him, basing its refusal on an exclusion clause in his homeowner's insurance policy. That clause excluded from coverage bodily injury or property damage resulting from acts committed by an insured person "while insane or while lacking the mental capacity to control his or her conduct. . . ." The policy provided in relevant part as follows:

Losses We Do Not Cover:

1. We do not cover bodily injury or property damage resulting from:

(b) An act or omission committed by an insured person while insane or while lacking the mental capacity to control his or her conduct or while unable to form any intent to cause bodily injury or property damage. This exclusion applies only if a reasonable person would expect some bodily injury or property damage to result from the act or omission.

2. We do not cover bodily injury or property damage resulting from:

(a) A criminal act or omission; or (b) An act or omission which is criminal in nature and committed by an insured person who lacked the mental capacity to appreciate the criminal nature or wrongfulness of the act or omission or to conform his or her conduct to the requirements of the law or to form the necessary intent under the law.

This exclusion applies regardless of whether the insured person is actually charged with, or ...


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