JENNIFER B. MALLIN, Individually, and JENNIFER B. MALLIN and ROBERTA GRILL, as Guardians of JESSICA B. MALLIN, and JENNIFER B. MALLIN as Special Administratrix of the Estate of VIRGINIA MALLIN EGYED, Deceased; EDITH EGYED, Executrix of the Estate of ALEX EGYED, aka ALEXANDER EGYED, Deceased; JEANNE DI FIORE COSGROVE; JOHN DI FIORE II; JARED E. SHAFER, Executor of the Estate of ELIZABETH BARTON DI FIORE, aka BETTY DI FIORE, Deceased; MILES LEVY; ELISE KAGASOFF; and JARED SHAFER, Administrator of the Estate of JACK LEVY, Deceased, Appellants, v. FARMERS INSURANCE EXCHANGE, a California Corporation, Respondent
Mallin v. Farmers Insurance Exchange
Steffen and Young, JJ., and Whitehead, D. J., concur.
JENNIFER B. MALLIN, Individually, and JENNIFER B. MALLIN and ROBERTA GRILL, as Guardians of JESSICA B. MALLIN, and JENNIFER B. MALLIN as Special Administratrix of the Estate of VIRGINIA MALLIN EGYED, Deceased; EDITH EGYED, Executrix of the Estate of ALEX EGYED, aka ALEXANDER EGYED, Deceased; JEANNE DI FIORE COSGROVE; JOHN DI FIORE II; JARED E. SHAFER, Executor of the Estate of ELIZABETH BARTON DI FIORE, aka BETTY DI FIORE, Deceased; MILES LEVY; ELISE KAGASOFF; and JARED SHAFER, Administrator of the Estate of JACK LEVY, Deceased, Appellants, v. FARMERS INSURANCE EXCHANGE, a California Corporation, Respondent.
JENNIFER B. MALLIN, Individually, and JENNIFER B. MALLIN and ROBERTA GRILL, as Guardians of JESSICA B. MALLIN, and JENNIFER B. MALLIN as Special Administratrix of the Estate of VIRGINIA MALLIN EGYED, Deceased; EDITH EGYED, Executrix of the Estate of ALEX EGYED, aka ALEXANDER EGYED, Deceased; JEANNE DI FIORE COSGROVE; JOHN DI FIORE II; JARED E. SHAFER, Executor of the Estate of ELIZABETH BARTON DI FIORE, aka BETTY DI FIORE, Deceased; MILES LEVY; ELISE KAGASOFF; and JARED SHAFER, Administrator of the Estate of JACK LEVY, Deceased, Appellants, v. FARMERS INSURANCE EXCHANGE, a California Corporation, Respondent.
No. 20903
September 15, 1992
839 P.2d 105
Rogers & Rogers, Las Vegas, for Appellant Jennifer B. Mallín.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for Appellants Mallín.
Morse & Mowbray, Las Vegas, for Appellant Egyed.
Gordon & Silver and Don Springmeyer, Las Vegas, for Appellants Di Fiore, et al.
Thorndal, Backus, Maupin & Armstrong, Las Vegas, for Respondent.
The Honorable Jerry C. Whitehead, Judge of the Second Judicial District, was designated by the Governor to sit in the place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, § 4.
OPINION
By the Court,
Springer, J.:
The case is brought by the personal representatives of three persons who were shot and killed at a residence insured by a homeowner's policy issued by Farmers Insurance Exchange. Farmers denies any liability under the policy because an intentional shooting is not an "accident" covered by the policy and because the policy contains an express exclusion of coverage for casualties "[a]rising as a result of intentional acts of the insured." The trial court granted summary judgment to Farmers, declaring that, under the undisputed facts of this case, Farmers was entitled to judgment as a matter of law. We affirm the summary judgment.
The homicides in question occurred in the following manner. The assailant, Alex Egyed, was having difficulties with his wife, Virginia Mallin. On the evening of the homicides, Virginia had attended a social event with her friends, Nina Schwartz, Betty Di Fiore and Jack Levy. Because of earlier misunderstandings with her husband, Virginia had decided not to stay at home that evening but, rather, to stay with her friend, Nina Schwartz. Before going to Nina's home, Virginia asked her friends to stop at her house so that she could pick up her daughter, Jessica. While Virginia was at the house, Alex confronted her and asked her to talk to him; she refused to talk to him, however. Alex then went to Jessica's room, where he found Jessica, a friend of Jessica's and Betty Di Fiore. Alex shot Di Fiore in the head, killing her. He then left Jessica and her friend and went downstairs, where he found Virginia in the kitchen. Alex shot his wife in the head, killing her. He subsequently proceeded outside to the car occupied by Jack Levy and Nina Schwartz and shot Jack Levy in the head, killing him. Alex then returned to the house and shot and killed himself.
The insurance policy in this case provides coverage for "damages from an accident. " (Emphasis supplied.) An accident, under the policy "means a sudden event. . . neither expected nor intended by the insured." The policy expressly exempts damages "[a]rising as a result of intentional acts of an insured." (Emphasis supplied.) As mentioned above, one of the insureds in this case, Alex Egyed, shot his wife and two of her friends in the head: Shooting three people in the head has every appearance of being an intentional act. If, instead of shooting his wife, Alex had, in a fit of anger, broken up all of their living room furniture, probably no one would have thought of filing an insurance claim; still, the claimants seek indemnity for losses which they claim resulted from an "accident" under Farmers' "Homeowners Package Policy."
Representatives of the unfortunate deceased victims, the claimants in this case, contend that the shootings were not "intentional acts." It is not easy to understand, under these circumstances, how shooting three people can be described as "unintentional." The claimants' expert psychological witness, Dr. Glovinsky, testified that in his opinion "at the point in time that Alex pulled the trigger he intended to kill her [his wife]" and that "Alex Egyed had the intent to kill her." (Emphasis supplied.) Of course Alex "intended to kill" his victims; and the trial court was justified on this record in holding that a jury could not have rationally concluded that Alex did not intend to kill three people. Because there is no evidence that the casualties in this case did not result from intentional acts of the insured, the trial court properly granted summary judgment to the insurance company.
It is curious to see how the claimants try to avoid the insurance policy language and how they can maintain that the killings in this case were accidental and not intentional. The claimants, through their expert witnesses, and in particular psychologist Glovinsky, advance the position that Alex was "unable to control his acts at the time of the homicides" and that Alex was "overcome by his emotions to the degree he was unable to make the rational decision not to commit the acts that he committed." Notwith standing Dr. Glovinsky's testimony that Alex was so overcome by emotion that he was unable to control himself, this expert witness testified not only that Alex intended to kill his victims but testified further that Alex's state of mind was such that he was mentally able to make a conscious decision not to shoot another person present at the time and place of the shootings, namely, his step-daughter, Jessica. Significantly, Dr. Glovinsky testified that Alex made the decision not to shoot his stepdaughter because "he had no malice toward Jessica."
In the face of the testimony of their own witness and the way in which Alex shot and killed these people, the claimants are hard-pressed indeed to argue that these killings were accidental and not, as they rather clearly appear to be, "intentional acts."
In its simplest denotation, an intentional act is merely "a willed muscular contraction." We are speaking here, however, of more than the mere voluntary flexion of Alex's trigger finger and more, even, than the intentional shooting of a firearm. The mental process that is critical here is, in Dr. Glovinsky's words, Alex's "intent to kill" his victims. The "willed muscular contraction" of his trigger finger was accompanied here with the willed objective of taking the lives of three persons. Intention involves the intersection of two ideas: bodily motion and operation of the will. Specifically, "intent" or "intention" denotes a design or desire to cause the consequences of one's acts and a belief that given consequences are substantially certain to result from the acts. Restatement (Second) of Torts § 8A (1965). Alex had the design and desire to kill his wife and her friends and knew that shooting his victims in the head would result in their deaths. Thus, it must be fairly said that Alex intended to kill them.
The rather simple idea of what is intentional and what is accidental is turned awry by modern psychoanalytical ("psycho-dynamic") theories, which put into question an individual's capacity to exercise free will over his or her actions. Those who follow these theories believe that unconscious and unwilled mental forces, and not individual will or intent, cause human actions. In the present case, when the claimants' psychological experts testify in their affidavits that Alex was not mentally able to make the moral decision as to whether or not he should kill, they are opining in terms of psychological theories that are far from being universally accepted and which, in my opinion, have been expressly rejected by this court. See Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957). Thus, I give no credence to testimony stating that Alex was so overcome by emotion that he was not mentally able to make the kill or not-to-kill decision.
None of the claimants' experts testified that when Alex killed, he did not have the intent to kill. The testimony is directly to the contrary. Alex's supposed inability to control his acts is not the same as an inability to intend his acts. What the psychologists seem to be saying is that Alex actually did intend to kill these people but that because of some kind of psychological force Alex was not able to control or decide against doing these intentional acts. Such testimony does not bring Alex's damaging acts within the policy language; and, further, Nevada has expressly chosen, in its criminal law, not to relieve an assailant of responsibility for his or her acts by reason of mental compulsions or irresistible impulses.
Specifically, Nevada has rejected in its criminal law the so-called "volitional" defenses to criminal liability. The "loss of volitional control," the "I-couldn't-help-myself ' defense of "irresistible impulse" was expressly rejected in Sollars. Id. at 253-55, 316 P.2d at 920. If we have refused to accept the loss of volitional control as a defense to criminal liability, it is inconsistent and most improvident for this court now to hold that it was permissible for a jury to decide that Alex did not intend to kill his victims because of his supposed loss of will power. Thus, even if one of the experts had actually testified for the claimants that Alex, because he was overcome by emotions, did not or could not intend to kill his wife and her friends, it would still be necessary to hold, as a matter of law, that the deaths in this case resulted from the "intentional acts of the insured." In short, this court does not accept the described psychoanalytical theory which renders an individual not responsible for supposedly uncontrollable acts done in a rage or under other emotional stress.
As stated above, the main thrust of the claimants' case is that Alex lost control of himself and thus lost control over his actions. The affidavit of William D. O'Gorman, M.D., however, goes farther than this. Dr. O'Gorman testified that Alex was "unable to control his acts at the time of the homicides." He further stated that Alex "at the time of the shootings" was "suffering from an involutional psychotic reaction" and was unable "to distinguish right from wrong." This testimony is ostensibly based on the proposition that a person "who committed the act . in a state of insanity" is free from criminal liability. NRS 194.010(4). In other words, this testimony suggests that Alex, at the time of the homicides, did not have the mental capacity to commit a crime. The offered testimony on Alex's supposed criminal insanity is necessarily based on claimants' supposition that there is some relationship between the insanity defense in criminal cases and a person's mental capacity to perform volitional or intentional acts in a civil context. Any such relationship, if one exists at all, is tenuous at best.
The principle of insanity, which provides a total defense to criminal liability, is entirely different from the concept of a nonlitigant's mental capacity in a civil case. Whether Alex had the mental capacity to intend his actions is to me much different from the question of whether he would have available to him the total defense of insanity had he survived and been prosecuted criminally. As explained above, intent is the design or desire to cause the consequences of one's acts and a belief that the consequences are very likely to result from the acts. Nothing in this record leads to the conclusion that Alex was mentally incapable of forming, even in his enraged state, the design or desire to shoot and kill three people and the belief that their deaths would likely result from the shootings. Certainly Dr. O'Gorman's conclusory reference in his affidavit to part of the M'Naghten test does not provide evidence in this civil case that Alex was so mentally deranged that he did not have the mental capacity to perform that cognitive function commonly known as intention. Every indication in the record suggests the conclusion that when Alex shot these three people, he desired to cause their deaths. As explained in the margin, however, there is certainly a possibility that some kinds of circumstances could, in certain cases lead to the conclu sion that a person was suffering from such a mental disorder as to be incapable of forming the intent to kill.
The test for capacity in criminal cases is necessarily different from the test that must be applied in the present case. In the criminal law, we are interested in mens rea, the guilty mind, and in moral reprehensibility. We want to know, in criminal cases, whether a person is justly deserving of punishment or not. The rationale of the insanity defense is that it is not fair, reasonable or just to punish a person for a crime when that person does not understand what he or she is doing or is so deluded as to believe that criminal acts are right and proper. These concepts have no bearing on the case at hand. The criminal law deals with a particular species of mental incapacity that has meaning only when associated with the ends and purposes of the criminal law.
If the claimants' position had been that Alex did not have the mental capacity to intend to kill his wife, rather than that Alex was criminally insane under the M'Naghten rule, they should have said so and pursued the issue of Alex's mental incapacity to intend to kill. Insanity and the consequent freedom from criminal liability are much different from the mental capacity to perform a legal act, an act which will be deemed effective under the civil law. If this were a will contest case, for example, a person challenging the mental capacity of a testator to execute a will would have to introduce evidence showing that the testator did not have the capacity to understand the nature of the estate and the ordinarily expected objects of the will rather than testimony relating to the testator's incompetency to commit a crime. If a person's capacity to marry or to make a contract were the subject of litigation, testimony based on the M'Naghten rule would not be very useful or pertinent to the issues at hand. The issue in this case is whether, under the terms of this insurance policy, Alex intended to kill his victims. The claimants' expert witness, Dr. Glovinsky, testified that Alex did intend to kill the victims. There is no evidence to the contrary.
In sum, then, there is no evidence to support the contention that these casualties were accidents or were caused by anything other than the intentional acts of Alex. There is affirmative evidence that Alex's acts were intentional. The trial court was correct in refusing to allow a jury to decide either that Alex did not intend to kill or that he did not have the mental capacity to make such a decision. The summary judgment of the trial court is, therefore, affirmed.
Steffen and Young, JJ., and Whitehead, D. J., concur.
O. W. Holmes, The Common Law 54 (1881).
As Justice Oliver W. Holmes wisely noted, "Even a dog distinguishes between being stumbled over and being kicked." O. W. Holmes, The Common Law 3 (1881).
We do not afford civil defendants the same defenses as we do criminal defendants, as criminal liability results in more severe penalties than civil liability. Therefore, if we have rejected the volitional defenses in our criminal law, these defenses certainly do not apply in our civil law.
"Under this psychiatric concept no man could be convicted of anything if the law were to accept the impulses of the unconscious as an excuse for conscious behavior." State v. Sikora, 210 A.2d 193, 206 (N.J. 1965).
Dr. O'Gorman testified that Alex had an "involutional psychotic reaction" that made him unable to "distinguish right from wrong." Dr. O'Gor-man had no occasion to examine, treat or even meet Alex. An involutional psychotic reaction is a temporary mid-life reaction to events said by Dr. O'Gorman to be "psychotic" in nature. Even if we were to assume, on the basis of Dr. O'Gorman's testimony, that Alex did suffer a temporary disease of mind and a defect of reason that prevented him from realizing that it was wrong to shoot three people in the head, this is, of itself, not enough to render these killings "unintentional." As pointed out in the text, no one has said that Alex did not intend to kill.
For instance, if there were psychological evidence that Alex thought that he was doing something other than discharging bullets into the bodies of three human beings, then it would be possible that Alex did not desire to cause the consequences of his acts, i. e., the killing of three human beings. In such a case, we might be willing to let such evidence go to a jury on the issue of whether these killings were "intentional acts."
There are other circumstances in which the mental condition of a person might prevent that person from being mentally able to commit an intentional act. If, for example, a mother were suffering under such a delusion that she believed that the devil had taken over the body of her infant child and, acting under such a delusion, hurled the child from the window of a tall building, under such circumstances the conclusion that the woman did not intend to kill her child might be accepted. The mother in this example did not have the design, or the desire, to kill her child. Instead, her intention was to assail the devil; consequently, with regard to the child her actions might not be considered to be "intentional acts."