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UNITED SERVICES AUTOMOBILE ASSOCIATION, Plaintiff and Respondent, v. Evanna Marie CAVANAUGH, et al., Defendants and Appellants.
Defendants Evanna Marie Cavanaugh, Wayne Arnold Cavanaugh, and Patti Sullivan as guardian ad litem for Sara Elizabeth Phegley and Shelly Lynn Phegley (collectively Cavanaughs) appeal a declaratory relief judgment in favor of plaintiff United Services Automobile Association (USAA). Cavanaughs contend the court erred in (1) admitting the testimony of USAA's expert criminalist, (2) failing to find an accident had occurred within the terms of the insurance policy, and (3) refusing to follow case law requiring the insurer to prove the insured acted with a preconceived design to cause the injury. We conclude none of these contentions has merit and accordingly affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 1985, Evanna Cavanaugh shot and killed her brother Charles Phegley at the home of their mother Marie Phegley where Evanna and Charles agreed to meet to discuss some real property they jointly owned. Charged with murder, Evanna eventually pleaded guilty to voluntary manslaughter.
On May 8, 1986, Shelly and Sara Phegley sued Evanna for the wrongful death of their father.1 On March 3, 1987, USAA filed a declaratory relief action seeking a judicial determination that the insurance policies issued to Evanna and Wayne Cavanaugh did not provide coverage to the insureds for the damages alleged by Shelly and Sara because the shooting was not an accident and, in any event, was intended by the insured. The court granted Evanna's and Wayne's motion for stay of the declaratory relief action pending resolution of the wrongful death action. The stay limited discovery by USAA to (1) depositions of Evanna and her mother Marie Phegley, (2) the existence, accuracy and authenticity of transcripts of any tape recordings made by Evanna, and (3) additional discovery only by leave of court.
The wrongful death action was settled on February 23, 1988, and judgment was entered for $1 million. In partial settlement, Evanna and Wayne transferred to Shelly and Sara all their rights and titles to various real property valued at $313,500. Additionally, Evanna and Wayne assigned to Shelly and Sara all of their rights under the homeowners' insurance policy and the personal umbrella policy issued by USAA.2
At a court trial in the declaratory relief action, Evanna testified she and Charles had agreed to meet at their mother's house on the morning of November 19 to discuss the payment of taxes on the property they jointly owned. Evanna also planned to inform Charles during that meeting she wanted to share in the proceeds of the rent from this property.
Evanna further testified Charles had been diagnosed as paranoid schizophrenic and had periods when he appeared relatively normal and periods when his behavior was abnormal. Occasionally he would raise his voice, yell and talk irrationally. Several months before the shooting, Charles hit Evanna in the neck during an argument. However, Evanna was not afraid of him.
On the morning they agreed to meet, Evanna arrived first and brought with her a gun and a tape recorder. She claims she brought the gun to put under her mother's mattress as a replacement for a missing gun her mother had kept there. She also claims she brought the tape recorder to record Charles in case he became irrational so she could replay the tape for him later. Upon her arrival, Evanna walked through the kitchen and although she intended to go to the bedroom to put the gun under the mattress, she sat down at the breakfast bar to read the newspaper with the gun in her pocket.
As Charles entered the kitchen, Evanna turned on the tape recorder. Charles sat down at the breakfast bar and Evanna began discussing the subject of sharing income from the rental property. Although Charles became angry, Evanna persisted in the conversation. At one point, Charles jumped up, came toward her and yelled at her in a tremendous rage. According to Evanna, he then settled down or moved back and when he came at her again, she took out the gun. Although Evanna claims Charles had a raised hand, he never struck her nor did he say anything at the sight of the gun. According to the tape recording of the incident, Charles never verbally threatened Evanna. Evanna shot Charles in the head four times, claiming he was advancing toward her, and stopped shooting after he fell. After the fourth shot, she put the gun down and ran to the telephone to call 911. Several minutes later, while on the telephone, she thought Charles was coming up again toward her, so she retrieved the gun and shot him a fifth time. She claims she intended to stop her brother because she thought he was going to kill her.
The court listened to the tape recording of the shooting incident. The transcript of the 911 tape recorded by the police communications division was admitted into evidence along with the transcript of the interview between Evanna and sheriff's deputies.
John Eisele, the deputy medical examiner for the San Diego County Coroner's office, performed the autopsy on Charles. At trial, he testified five shots were fired causing six gunshot wounds. Dr. Eisele further testified two of the wounds from two different shots, the left side of the head above the ear and the side of the neck toward the back, would have been fatal. Additionally, these wounds would have resulted in immediate incapacitation and immediate loss of consciousness preventing Charles from making any voluntary movement. Dr. Eisele also stated one of the shots to the nose would have caused an almost instantaneous extensive discharge of blood.
Lucien Haag, a criminalist who testified on behalf of USAA, stated five shots were fired within the following intervals: two seconds between the first and second shots, seven seconds between the second and third shots, nine seconds between the third and fourth shots, and four minutes, three seconds between the fourth and fifth shots. Based on the absence of blood on the bottom of Charles's boots, Haag determined Charles was not advancing toward Evanna and although Charles did extend his hand, he did not move toward the area where Evanna described herself as being at the time of the shooting. Haag further testified the position of Charles's body and the location of his wounds were consistent with an attempt by Charles to escape or avoid being hit. As to the last shot, it was Haag's opinion that Evanna walked up to Charles, pointed the gun down toward him, and fired at the back of his head from a distance of 12 to 14 inches from muzzle to target.3
USAA's psychiatric expert, Dr. Haig Koshkarian, testified that although Evanna was highly emotional, frightened, upset and angry at the time of the shooting, she was able to form the intent to shoot Charles. Dr. Koshkarian stated it was clear from what she told him during a psychiatric evaluation as well as from the tapes and from what she said to the 911 dispatcher that Evanna intended to shoot her brother. Further, Evanna was aware that by pulling the trigger, bullets from the gun would impact her brother's body and cause damage or harm to him. Dr. Koshkarian disagreed with Evanna's psychiatric expert that Evanna was suffering from a disassociative disorder at the time of the shooting. Even if she were, only her memory of the event, not her intent, would have been affected.
Charles's treating psychiatrist, Dr. Richard Hill, testified he saw Charles at least 77 times in nine years and had formally diagnosed Charles as paranoid schizophrenic. On the morning of Charles's death, Dr. Hill had met with him and noted he was remarkably depressed and suicidal. During acute phases of Charles's illness, such as the one he was experiencing at the time of his death, Charles would tend to withdraw and become more isolated. Dr. Hill believed Charles, as an inwardly directed person, would withdraw rather than attack when faced with a threat. Despite minor incidents with his mother and sister, Charles was not, in Dr. Hill's opinion, a violent person and would not inflict serious harm on someone. Any violence would be self-directed. Having listened to the tapes of the shooting, Dr. Hill testified he did not believe Charles was becoming physically aggressive or violent toward Evanna.
Marie Phegley corroborated Evanna's testimony, stating she kept a firearm under the mattress in her bedroom but discovered it was missing sometime before Charles's death. She had discussed the missing gun with Evanna and they had talked about replacing it. She further testified that on one occasion, Charles had exhibited violent behavior by kicking at her.
After hearing all the evidence, the court found Evanna intended to shoot Charles and thus, no coverage existed under the insurance policies issued by USAA to Evanna and Wayne.
DISCUSSION
I
Cavanaughs contend the court erred in allowing USAA to call its criminalist during its case in chief because the court had previously ruled this expert could only be called in rebuttal. They assert the error was prejudicial, requiring reversal.
Before trial, Cavanaughs filed a motion in limine to prevent USAA from offering any expert testimony in its case in chief because it had failed to comply with Code of Civil Procedure 4 section 2034, subdivision (f) requiring an exchange of expert witness information by a certain date. USAA did, however, comply with the statutory requirement in its second exchange of expert witness information two and one-half weeks later. The court ruled because USAA had not timely complied with section 2034, subdivision (f), it would be precluded from offering any expert testimony in its case in chief under section 2034, subdivision (j). However, the court further ruled USAA could call its experts in rebuttal. When Cavanaughs stated they might not call an expert, the court responded that USAA could call its experts if Cavanaughs called theirs.
During its case in chief, USAA called Evanna as a witness under Evidence Code section 776.5 Although Evanna admitted shooting Charles, she testified she acted in self-defense. While still presenting its case in chief, USAA asked to present out of order the testimony of Lucien Haag, USAA's criminalist expert, because he was leaving the state the next day to testify in a homicide trial. Cavanaughs strenuously objected, arguing the court had already ruled USAA could not present expert testimony in its case in chief. However, the court ruled that although its original ruling limiting USAA's expert to rebuttal testimony was correct, USAA was entitled to rebut Evanna's testimony of self-defense through its criminalist expert, especially because Cavanaughs did not intend to call their expert. The court also noted Cavanaughs had deposed USAA's expert and thus, they would not be prejudiced by the introduction of his testimony.
Regardless of the propriety of the court's initial ruling on Cavanaughs's motion in limine, the court acted within its discretion in allowing USAA's criminalist to testify. Under section 2034, subdivision (j)(1), the court “shall” exclude expert testimony of a witness offered by a party who has “unreasonably” failed to list that expert under subdivision (f). Here, USAA did not unreasonably fail to list its expert criminalist. Rather, it belatedly listed its expert and made him available for deposition.
The discovery statutes are intended to assist the parties in ascertaining the truth as well as to safeguard against surprise. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376, 15 Cal.Rptr. 90, 364 P.2d 266.) Here, on the date designated for exchange of expert witness information, USAA submitted a declaration stating an expert had not yet been retained because discovery had not been completed as a result of the court-ordered stay. Cavanaughs do not contend, and the evidence does not show, USAA willfully suppressed Haag's identity as a potential expert witness. As soon as USAA determined who its expert criminalist would be, it disclosed his name to Cavanaughs who then deposed him before trial.6 (See Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 783, 174 Cal.Rptr. 348.) The court was entitled to hear this expert testimony especially because Cavanaughs decided not to call their own expert criminalist. Exclusion of Haag's testimony would have deprived the court of valuable testimony as to how the shooting occurred for the purpose of determining coverage under the insurance policies.
Cavanaughs assert the admission of Haag's testimony was prejudicial because they relied on the court's initial ruling excluding his testimony and decided not to call their criminalist expert. They further assert the court's later ruling allowing Haag to testify effectively denied them their right to meaningful cross-examination. However, Cavanaughs had designated an expert four months before trial and any decision not to use his testimony was a tactical one. Moreover, although Cavanaughs may not have expected Haag to testify, they had previously deposed him and fully cross-examined him at trial.
Even if the court should have excluded Haag's testimony, the error does not require reversal. The evidence supports the trial court's finding the shooting was not an accident and thus not covered under the insurance policies. Evanna admitted shooting her brother four times. She then shot him again at close range while he was lying on the floor. The evidence also supports the court's finding Evanna was not acting in self-defense. The tape recording of the shooting incident revealed no sounds of movement by Charles toward Evanna even though he was wearing boots, and no verbal threats toward Evanna by Charles. Charles's treating psychiatrist testified Charles was not a violent person and would withdraw rather than attack if faced with a threat. Further, the coroner testified Charles would have been immediately incapacitated and rendered unconscious after he was hit by two shots. USAA's expert psychiatrist testified Evanna was able to form the intent, and did intend, to shoot Charles. Thus, even without Haag's testimony, the evidence was sufficient to support the court's finding of no coverage.
II
Cavanaughs contend the court erred in failing to find the shooting was an “accident” or “occurrence” within the terms of the insurance policy. They assert the court improperly looked at the conduct of the insured (Evanna) rather than the injured party (Charles) in determining an accident had not occurred. They further assert the court then failed to shift the burden of proof to USAA to show the shooting fell within the exclusionary language of the policy.
In determining an insurer's obligations under an insurance policy, the insured has the initial burden to prove an event has occurred within the scope of basic coverage. (Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537, 226 Cal.Rptr. 435.) Once coverage has been established, the burden then shifts to the insurer to prove the claim falls within an exclusion. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 880, 151 Cal.Rptr. 285, 587 P.2d 1098.)
The policy here provides coverage for a claim made or a suit brought “against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies․” The policy then defines “occurrence” as “an accident, including exposure to conditions, which results, during the policy period, in: a. bodily injury; ․” Although the policy does not give a specific definition of “accident,” courts have defined it as “ ‘an unexpected, unforeseen, or undesigned happening or consequence from either a known or unknown cause.’ ” (Hogan v. Midland National Ins. Co. (1970) 3 Cal.3d 553, 559, 91 Cal.Rptr. 153, 476 P.2d 825, quoting Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co. (1959) 51 Cal.2d 558, 563–564, 334 P.2d 881.) “In its plain and ordinary sense, ‘accidental’ means ‘arising from extrinsic causes[;] occurring unexpectedly or by chance[; or] happening without intent or through carelessness.’ (Webster's Ninth New Collegiate Dict. (1983) p. 49.)” (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 161 Cal.App.3d 1199, 1202, 208 Cal.Rptr. 5.)
Cavanaughs rely on Economy Lumber Co. v. Insurance Co. of North America (1984) 157 Cal.App.3d 641, 204 Cal.Rptr. 135, to support their argument the occurrence or accident must be viewed from the injured party's perspective, not the insured's. In that case, a lumber company brought a declaratory relief action against its insurer, seeking coverage for damage that occurred when defective lumber it supplied to a builder was put on eight houses. The trial court found the insurance policy issued to the lumber company did not cover its claims for property damage. (Id. at p. 644, 204 Cal.Rptr. 135.)
On appeal, the court held the damage was clearly unexpected, constituting an occurrence or accident within the meaning of the policy. (Id. at p. 648, 204 Cal.Rptr. 135.) In reaching its conclusion, the court discussed several cases interpreting the word “accident.” Citing Geddes & Smith Inc. v. St. Paul Mercury Indemnity Co., supra, 51 Cal.2d at pages 563–564, 334 P.2d 881, the court noted “accident” includes “ ‘ “any event which takes place without the foresight or expectation of the person acted upon or affected by the event.” ’ ” (Economy Lumber Co. v. Insurance Co. of North America, supra, 157 Cal.App.3d at p. 647, 204 Cal.Rptr. 135.) However, the court relied on other definitions of accident such as “ ‘an unexpected happening ․, an unforeseen unplanned event ․’ ” to conclude the damage was accidental and thus constituted an occurrence. (Id. at pp. 647–648, 204 Cal.Rptr. 135, quoting Cowman v. Department of Motor Vehicles (1978) 86 Cal.App.3d 851, 853, 150 Cal.Rptr. 559.) No subsequent California case has interpreted the word accident from the perspective “of the person acted upon or affected by the event.”
Regardless of whether the event is viewed from the standpoint of the insured or the injured party7 , an accident “is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. [Citation.] Clearly, when the insured acted deliberately with the intent to cause injury, the conduct would not be deemed an accident. Moreover, where the insured intended all of the acts that resulted in the victim's injury, the event may not be deemed an ‘accident’ merely because the insured did not intend to cause injury. Conversely, an ‘accident’ exists when any aspect in the causal series of events leading to the injury or damages was unintended by the insured and a matter of fortuity.” (Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50, 261 Cal.Rptr. 273.)
Here, the evidence supports the court's finding Evanna deliberately shot Charles intending to injure him. Evanna carried a gun with her to meet Charles where she planned to ask him to share the proceeds of the rent from their property. During an argument, she shot him four times in the head and four minutes later shot him again at close range. Dr. Koshkarian testified Evanna intended to shoot Charles and was aware that by pulling the trigger, bullets from the gun would impact Charles's body and cause damage or harm to him. Further, Evanna was not acting in self-defense because the evidence shows Charles was not coming toward her and had not threatened her. Moreover, Evanna testified she was never afraid of Charles. As the court found, the shooting was volitional where Evanna reasoned she had a gun in her pocket, she removed the gun from her pocket, held it, aimed and shot it. Thus, the shooting was not an event within the scope of basic coverage.
III
Cavanaughs contend the court erred in refusing to follow Clemmer v. Hartford Ins. Co., supra, 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098 requiring the insurer to prove the insured acted with a preconceived design to cause the injury. In Clemmer, the Supreme Court held the insurer has the burden of proving the insured's act was willful, thus falling within one of the policy's exclusions. (Id. at p. 880, 151 Cal.Rptr. 285, 587 P.2d 1098.) The court noted “even an act which is ‘intentional’ or ‘willful’ within the meaning of traditional tort principles will not exonerate the insurer from liability under Insurance Code section 533 unless it is done with a ‘preconceived design to inflict injury.’ [Citations.]” (Id. at p. 887, 151 Cal.Rptr. 285, 587 P.2d 1098.) However, the issue of whether an insured's act comes within a policy exclusion arises only if basic coverage is established. (Royal Globe Ins. Co. v. Whitaker, supra, 181 Cal.App.3d at p. 537, 226 Cal.Rptr. 435.) Here, because Cavanaughs did not meet their initial burden of proving an accident occurred within the scope of basic coverage, USAA was not required to prove Evanna acted with a preconceived design to cause injury.
DISPOSITION
The judgment is affirmed.
FOOTNOTES
1. Shelly and Sara are minors and therefore sued through their guardian ad litem, Patti Sullivan.
2. The settlement also provided that Shelly and Sara would not execute upon the personal assets of Evanna and Wayne. Additionally, Evanna and Wayne retained the right to recover personal and punitive damages against USAA as well as the right to recover a percentage of any recovery by Shelly and Sara.
3. In addition to testifying in court, Haag presented a mock-up of the scene and incorporated the mock-up with manikins, live models and laser beams.
FN4. All statutory references are to the Code of Civil Procedure unless otherwise specified.. FN4. All statutory references are to the Code of Civil Procedure unless otherwise specified.
5. Under Evidence Code section 776, subdivision (a), “[a] party to the record of any civil action, or a person identified with such a party, may be called and examined as if under cross-examination by any adverse party at any time during the presentation of evidence by the party calling the witness.”
6. USAA designated Haag as its expert on April 7, 1988. Trial began on July 20, 1988.
7. One insurance industry commentator, purporting to explain the underwriter's intent in its use of the term “accident,” has stated: “Nearly all courts have agreed that inherent in the phrase ‘caused by accident’ is the element of fortuity. The happening must have been unforeseen, unexpected, and unintended. The disagreement centers mainly on the question of from whose standpoint must the happening have been unforeseen, unexpected and unintended. [¶] A few courts have viewed the element of fortuity from the standpoint of the injured party, largely drawing upon cases, texts and definitions which relate to two-party coverages where the context gives the term a different twist․ [¶] The intent has always been that the concept of fortuity should be viewed from the standpoint of the insured, and this has been supported by the weight of authority․” (Tinker, Comprehensive General Liability Insurance—Perspective and Overview, 25 Fed'n Ins. Coun. Q. (1975) 217, 257; emphasis in original.)
LIM, Associate Justice, Assigned.* FN* Assigned by the Chairperson of the Judicial Council.
BENKE, Acting P.J., and NARES, J., concur.
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Docket No: No. D009071.
Decided: January 18, 1991
Court: Court of Appeal, Fourth District, Division 1, California.
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