Lititz Mutual Insurance v. Bell

RODOWSKY, Judge. This is a liability insurance coverage case that was decided in the circuit court on summary judgment. The case presents another effort by a tort plaintiff to avoid the operation of an exclusion for bodily injury that is expected or intended by the insured. Here the plaintiffs submission is that, due to a psychiatric disorder, the alleged insured had no intent to injure the plaintiff when the former struck the latter with his fist.

As we explain below, this attempt to convert a battery into negligence fails on the facts and the law. I In December 1991, the alleged insured, John Edwin Bell, Jr. (Bell), aged 15, was a resident patient at the Psychiatric ⁷⁸⁴ Institute of Montgomery County (Fairbridge). Bell had been admitted because he had a very explosive temper and needed to learn how to control it. He had previously been admitted at Johns Hopkins and Sheppard Pratt hospitals for the same problem.

During the first week of December 1991, Bell applied for a pass to spend part of the upcoming weekend with his mother. By Thursday his pass had been approved for Saturday. On Saturday, December 7, 1991, Bell’s mother arrived at Fair-bridge sometime between 10 a.m. and 1 p.m. They requested the weekend pass.

Eloise Smith (Smith), the plaintiff in the tort action underlying this coverage case, and Cheryl Moore (Moore) were at the nurse’s station where passes were kept in a notebook. The pass was in the back sleeve of the notebook rather than in the “passes” section where it should have been. This alerted Smith that “something was not exactly okay.” Smith attempted to reach her supervisor by telephone and explained to Bell’s mother that she (Smith) could not approve the pass until her supervisor returned her telephone call. Approximately five to ten minutes later, Bell’s mother asked to be let out of the unit.

At deposition, Bell described what happened next: “When I saw my mom walk off I kicked out the front door to the unit, which is the last door in. And I went to follow my mom.” A second, locked door, however, blocked his exit. Smith telephoned for help but none was then available. Meanwhile, Moore was able to talk Bell into going to an area known as the “Quiet Room.” The Quiet Room is approximately 8’ to 10’ x 8’ to 11’, with no furniture, only an exercise mat on the floor, and a single small window near the ceiling.

The room connects to the main hallway by a small hallway, approximately 4’ x 4’. One door (the first door) connects the main hallway to the small hallway, and another door (the second door) connects the small hallway to the Quiet Room. There is a bathroom off the main hallway across from the first door. Bell described why he walked into the Quiet Room: ⁷⁸⁵ “I turned around and the staff had followed me out, a few staff members had followed me out.

I walked back to the quiet room and sat down and asked for my space, which is what we were supposed to do when we became angry. If we put ourselves in, okay, I am going in here, I need my space, leave me alone for 15, 20 minutes.” Once inside, Bell took off his shoes and emptied his pockets according to the facility’s rules for the Quiet Room. He testified on deposition that Smith and Moore entered the Quiet Room approximately five to ten minutes after he walked into the room (apparently in order to have Bell make a statement explaining his actions). Bell’s evidence is that he told Smith and Moore that he needed “some space” but that, while Smith and Moore would initially step back, they would again approach him and repetitively ask, “what is wrong, what bothers you, calm down.” Bell described his feelings at this point: “Q. Could you feel yourself filling up "with anger? “A. I was so boiling to the point I was lobster red at the time.” Bell then struck Smith in her chest with his fist, knocking Smith backward.

In his own words: “After asking her for my space three or four times, I rose and punched her in her chest region. And I sat right back down. “I need my space, and when I didn’t feel I was getting what I was asking for, I rose and struck her.” Bell recalls striking Smith only once. 1 Bell says that, after hitting Smith, he sat for approximately five minutes until staff members took him into his bedroom and restrained him for approximately eight hours. While being removed from the Quiet Room Bell recalls seeing par ⁷⁸⁶ amedics tending to somebody in one of the bathrooms, and he assumed that they were tending to Smith. Bell described his thoughts at that time: “[M]y first concern was I really screwed up here, I have hurt somebody, I want to make sure that person is okay____ “Q. You were aware at the time you had struck somebody and you had hurt somebody? “A. Yes, sir.” In his answers to interrogatories Bell stated: “There was never any intent by me to cause injury or damage to Eloise Smith.

The contact made between us was a result of a[n] unexpected attack of anger, exacerbated by the conduct of Eloise Smith. I believe that if Eloise Smith had acted in accordance with the rules of the institution, and allowed me to remain in the quiet room alone, that my anger would have subsided and the incident would never have occurred.” In March 1995 Smith filed a one count complaint in the Circuit Court for Montgomery County against Bell, alleging that Bell had “negligently struck her.” At the time of the occurrence Bell’s parents and members of their household were insured against liability under a homeowner’s policy issued by Lititz Mutual Insurance Company (Lititz). Under the terms of the policy, Lititz is obligated to defend and indemnify any claim or suit brought against an “insured” for “bodily injury” or “property damage” caused by an “occurrence.” “Occurrence” is defined to mean “an accident, including exposure to conditions, which results, during ⁷⁸⁷ the policy period, in: a. bodily injury; or b. property damage.” Personal liability coverage under the policy “do[es] not apply to bodily injury or property damage ... which is expected or intended by the insured[.]” In August 1995 Lititz filed a Complaint for Declaratory Relief in the Circuit Court for Montgomery County, naming Bell, his parents, and Smith as defendants. Lititz asserted, inter alia, that Smith’s alleged personal injuries and damages were not the result of a covered “occurrence” because they were expected or intended by Bell and, therefore, excluded from coverage.

Lititz requested that the court “determine and adjudicate the rights and liabilities of the parties” and find that Lititz had no duty to defend or indemnify Bell. The declaratory judgment action was assigned to the same judge to whom the underlying tort action had been assigned. Lititz moved for summary judgment, and Smith opposed the motion. In the opposing memorandum of facts and law counsel for Smith represented that Bell suffered from a longstanding mental condition “known as ‘intermittent explosive disorder,’ ” which “rendered it impossible for him to form the intent necessary to deliberately cause” Smith’s injury.

There is no indication in the record that Bell or his parents opposed in writing Lititz’s motion for summary judgment. 2 At the hearing on Lititz’s motion for summary judgment the court took special interest in Bell’s mental condition and in ⁷⁸⁸ whether Bell could be held criminally responsible. The court stated that “the reasonable layperson probably would believe that if the mental disorder was so severe as to relieve them of criminal responsibility, that it would be severe enough that it would afford them, under a reasonable interpretation of the policy, with coverage.” Accordingly, the judge. declared that he was going to decide the coverage question according to the standard stated in Maryland Code (1982, 1994 Repl.Vol.), § 12-108(a) of the Health-General Article: “A defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity: “(1) To appreciate the criminality of that conduct; or “(2) To conform that conduct to the requirements of law.” Concluding that there was a potentiality of coverage on the theory that Bell may not have been criminally responsible, the court denied Lititz’s motion for summary judgment. Then the circuit court conceptually fused its not criminally responsible theory that it had applied to the coverage case with the elements of the plaintiffs case in the tort action. “THE COURT: So, in effect, won’t they have to litigate in the underlying action that this was an unintentional act. And the only way that it could be unintentional or negligent or accidental in this context will be if they can establish to a jury’s satisfaction that he comes within the definition of a person who would not be criminally responsible? “THE COURT: Maybe we can do this very easily because it is the plaintiff who would have the burden____ So if the plaintiff concedes that in the underlying action, in order to prevail, to have to be able to establish that this act ⁷⁸⁹ which occurred—that at the time the act occurred that the defendant would have been entitled to the defense of not criminally responsible, were this a criminal action, then— “[SMITH’S COUNSEL]: I concede that, Your Honor.

If I prove that he intentionally did it, then I lose the underlying action. “THE COURT: Well, do you concede in light of what I have ruled that it is going to be incumbent upon the plaintiff to prove, in light of the facts of this case, which but for the existence of this mental disorder, are on their face intentional? “[SMITH’S COUNSEL]: Yes, sir.” Having determined that the question of intent would be decided in the tort action, the circuit court dismissed the declaratory judgment action. In its final order in the declaratory judgment action, the circuit court included the following additional provision: “In order to prevail ... in the tort action ... Smith must prove, pursuant to Section 12-108 of Maryland’s Health-General Article that, because of a mental disorder or mental retardation, Mr. Bell, Jr., at the time of the conduct in question, lacked substantial capacity: (1) to appreciate the criminality of that conduct; or (2) to conform that conduct to the requirements of law. If Ms. Smith does not satisfy this burden of proof by a preponderance of evidence, then judgment shall be entered in favor of Mr. Bell, Jr. and against Ms. Smith in that action, on her claim for negligence.” 3 Lititz appealed to the Court of Special Appeals from the final judgment in the declaratory judgment action.

That court affirmed by a divided panel in an unreported opinion. ⁷⁹⁰ The majority in the Court of Special Appeals reviewed Brohawn v. Transamerica Insurance Co., 276 Md. 396 , 347 A.2d 842 (1975), and Allstate Insurance Co. v. Atwood, 319 Md. 247 , 572 A.2d 154 (1990), concluding: “As we see it, this case does not present the precise concern that the Court discussed in Atwood concerning ‘clearly intentional’ conduct, because of [Bell’s] alleged mental incapacity and his long history of mental illness. In our view, it would be a gross oversimplification of [Bell’s] conduct if we were to characterize his attack upon Smith as patently deliberate. Moreover, the issue of mental incapacity was of obvious concern to the trial court in the declaratory judgment action. Indeed, the trial court observed at the summary judgment hearing that ‘this is a most difficult case.’ Because of the seriousness of the mental capacity issue, we are satisfied that the court was not required to infer an intent to injure as a matter of law.

Rather, when the trial court entertains doubt as to whether an intent to injure should be inferred as a matter of law, we cannot quarrel with its discretionary determination to dismiss the ⁷⁹¹ declaratory judgment proceeding and allow the issue to be resolved through the underlying tort suit.” The intermediate appellate court distinguished its decision in Pettit v. Erie Insurance Exchange, 117 Md.App. 212 , 699 A.2d 550 (1997). (When the Court of Special Appeals decided this case, this Court had granted certiorari in Pettit but had not yet decided the case.) The court below distinguished its own Pettit decision on the ground that the insured in that case had been diagnosed with pedophilia, a condition “not ‘dependent upon ... any distortion in cognition or perception’ ” (quoting Pettit, 117 Md.App. at 228 , 699 A.2d at 559 ). The court looked to the definition of intermittent explosive disorder in American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders § 312.34, at 609-10 (4th ed. 1994) (DSM-IV), thereby implying, by way of contrast, that Bell’s mental condition could interfere with cognition or perception. The court, however, noted that “the record does not reveal whether Intermittent Explosive Disorder interferes with the formulation of intent.” Lititz petitioned this Court for a writ of certiorari which we granted.

It presented two issues. Our answer to the first question, set forth below, is dispositive. “Did the Court of Special Appeals misapply Atwood and err in affirming the trial court’s decision to dismiss Lititz’ declaratory proceeding and place the coverage issues into a forum where these issues cannot possibly be ‘fairly litigated’?” Only Lititz and Smith submitted briefs to this Court and participated in oral argument; the Bells did not do so. II The general rule in Maryland is that it is inappropriate for a liability insurer to bring a declaratory judgment action to resolve an insurance coverage issue that is the same as an issue presented in a pending, underlying tort action that has not yet gone to trial. Brohawn v. Transamerica Ins.

Co., 276 Md. 396, 406 , 347 A.2d 842, 849 (1975). There are, however, circumstances under which a declaratory judgment is appro ⁷⁹² priate while the tort trial is pending. We recently reviewed these circumstances in Pettit v. Erie Insurance Exchange, 349 Md. 777 , 709 A.2d 1287 (1998), where we said: “Erie is entitled to a summary judgment declaring that it has no duty to defend Kowalski only if it is manifestly clear that in the underlying tort suit the petitioner cannot allege facts giving rise to a potentiality of coverage. See Brohawn v. Transamerica Ins.

Co., 276 Md. 396, 408 , 347 A.2d 842, 850 (1975) (‘Even if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy.’). Although declaratory judgment actions are disfavored in liability insurance coverage cases while the underlying tort action is pending, such relief is appropriate prior to trial of the tort action where the allegations in the underlying tort claims ‘obviously constitute a patent attempt to recharacterize, as negligent, an act that is clearly intentional....’ Allstate Ins. Co. v. Atwood, 319 Md. 247, 253 , 572 A.2d 154, 157 (1990); see also Brohawn, 276 Md. at 406 , 347 A.2d at 849 . Under the unique circumstances in Atwood , this Court permitted a post tort-trial, declaratory judgment coverage action after the jury in the tort case may well have found that a battery was negligence.

We examined how, because both the plaintiff and the defendant in a tort suit share a common interest in coverage being applicable, there may be collusion and an effort to manipulate coverage. As a result, ‘plaintiffs’ attorneys bring suits for “negligent rape, negligent sodomy, ... and negligent sexual molestation.” ’ Atwood, 319 Md. at 253 , 572 A.2d at 156 -57 (quoting Brief of Allstate Ins. Co.). Both parties to the tort action profit by a jury’s ruling that ‘ “even the most obvious and blatant criminal and/or intentional acts [are] negligent conduct.’” Id. at 253 , 572 A.2d at 157 (quoting Brief of Allstate Ins.

Co.).” Id. at 780-81, 709 A.2d at 1289 . In the underlying tort action in Pettit a mother alleged that the insured had negligently sexually molested her minor chil ⁷⁹³ dren. Id. at 779, 709 A.2d at 1288 . Prior to trial, the insurer sought a judgment declaring that it had no duty to indemnify or defend because of an exclusion for “injury or damage expected or intended” by the insured.

Id., 709 A.2d at 1289 . This Court affirmed a summary judgment for the insurer. The principal argument supporting coverage was based on the affidavit of a psychiatric expert who opined that the defendant had no subjective intent to injure the children because of his diagnosed pedophilia, a disorder that caused the defendant to believe that it was healthy and normal to engage in sexual activity with children. Id. at 784 , 709 A.2d at 1291 .

Although the pedophile in Pettit “intended to engage in the conduct constituting sexual acts and contacts,” the tort plaintiff submitted that, because the