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IN THE DISTRICT COURT OF
SALINE COUNTY, NEBRASKA
CLINTON R.
BERG,
CASE NO. C102-05
Plaintiff,
vs.
ALLSTATE INSURANCE
COMPANY, An Illinois Corporation,
Defendant.
Now on this 19th
day of February, 2004, defendant’s motion for summary judgment
comes on for decision, the same having been heard, evidence having
been received, briefs of the parties having been received and
reviewed and the motion having been taken under advisement. For
the reasons stated below, the Court finds that there is no genuine
issue of material fact, and defendant is entitled to judgment as a
matter of law.
The evidence shows
that during the evening hours of March 15, 2000, plaintiff and his
friends were celebrating “Greek Week” at the campus of Doane
College in Crete, Nebraska. As a prank, they lit women’s
underwear on fire in the commons area of plaintiff’s dorm room
known as Quad 1 in Burgess Hall Dormitory at the college. They
also poured lighter fluid in a toilet and lit it on fire. They
had been drinking alcohol at JD’s Bar in Crete and then returned
to the bar where they stayed until it closed at 1:00 a.m. on March
16, 2000. Plaintiff then continued to drink and party with
friends at Quad 1, and between 2:00 a.m. and 3:00 a.m. on March
16, 2000, plaintiff and his friends destroyed a loveseat/couch
that was inside his dormitory room. They then broke the
loveseat/couch into pieces, and plaintiff intentionally set one of
the loveseat/couch cushions on fire. Plaintiff threw the cushion
on the floor and stomped out the flames. Plaintiff and his
friends then moved pieces of the broken loveseat/couch, including
the cushion, to the commons area of Quad 6 of another dormitory as
part of a prank. Plaintiff and his friends placed pieces of the
broken loveseat/couch near the wall by the door leading into Quad
6, and plaintiff and a friend then took a couch belonging to one
of the residents of Quad 6 and threw it over a balcony onto the
lawn below. After throwing the couch from Quad 6 over the
balcony, plaintiff and his friend went back to Quad 1 where they
fell asleep. A short time later, a fire in Quad 6 broke out
resulting in great damage to Quad 6. Nebraska state fire marshals
determined that plaintiff and his friends were responsible for the
fire, because it originated from the broken loveseat/couch they
left in Quad 6. Plaintiff was arrested and charged with first
degree arson. Doane College’s insured filed suit against
plaintiff for damages caused by the fire.
As a result of the
civil suit brought by the college’s insurer, plaintiff’s parents
made a claim with defendant, Allstate Insurance Company, under
their insurance policy to cover the damages and litigation costs
and resulting civil suit. Defendant denied coverage and plaintiff
brought this action for declaratory relief for breach of contract
and bad faith.
The insurance policy
contains an exclusionary clause, which states as follows:
“Losses we do not cover under
coverage X:
1. We do not cover any
bodily injury or property damage intended by, or which
may reasonably be expected to result from the intentional or
criminal acts or omissions of, any uninsured person.
This exclusion applies even if:
b. such bodily
injury or property damage is of a different kind or degree than
that intended or reasonably expected. (Emphasis Added).
The Nebraska Supreme
Court has held that, “[Am effect, which is the natural and
probable consequence of an act or course of action is not an
accident.” Millard Warehouse, Inc. v. Hartford Fire Ins. Co.,
204 Neb. 518, 531, 283 N.W. 2d 56, 63 (1979)(Emphasis in
Original). Plaintiff argues in his brief that whether he knew or
should have “reasonably expected that his actions would cause a
fire in another location more than an hour later after he lit the
couch cushion on fire is an issue for trial, and summary judgment
should not be granted.” However, the fire and damages were the
“natural and probable consequence” of plaintiff’s setting fire to
the cushion, and assuming, incorrectly, that the fire was out when
he placed the burnt cushion in Quad 6. Certainly, he did not
expect that consequence. However, the policy language specifically
covers a situation where the consequence of an intentional act is
not expected:
b. such bodily
injury or property damage is of a different kind or degree than
that intended or reasonably expected. (Emphasis Added).
Since this is a case
involving a petition for declaratory relief, the Court must
determine whether the plaintiff’s claim falls within the exclusion
to the liability coverage provided by the policy, and the case
does not involve an issue of negligence to be decided by the trier
of fact. The language of the exclusionary clause in the policy is
clear and unambiguous. The policy’s plain language states that
the exclusion applies even if the “property damage is of a
different kind or degree than that intended or reasonably
expected”. Accordingly, defendant’s motion for summary judgment
should be sustained, and plaintiff’s causes of action for breach
of contract and bad faith should be dismissed.
IT IS THEREFORE ORDERED:
That defendant’s motion for
summary judgment is sustained, and plaintiff’s petition herein is
dismissed with prejudice at plaintiff’s costs.
BY THE COURT:
Paul W. Korslund
District Judge
cc: Mr. William Gast
Mr. Bradley Kalkworf |
