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Grinnell Mutual Reiunsurance Co. v. Ehmke

July 8, 2003

GRINNELL MUTUAL REINSURANCE COMPANY, RESPONDENT,
v.
BONNIE EHMKE, ET AL., APPELLANTS (C8-02-2247), RESPONDENTS (C6-02-2263), JEFFREY EHMKE, APPELLANT (C6-02-2263).



Dodge County District Court File No. C501133

Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Minge, Judge.

SYLLABUS BY THE COURT

A 17-year-old child's act of "chucking" a refrigerator magnet at her father in retaliation for the father's having thrown a can of beer that struck the child on the leg during an argument is not the type of deliberate or calculatedly indifferent act that supports, as a matter of law, an inference of intent to injure, sufficient to preclude coverage for the act under a homeowner's policy's intentional-act or criminal-act exclusions.

The opinion of the court was delivered by: Stoneburner, Judge

Reversed and remanded

OPINION

The district court granted summary judgment declaring that respondent Grinnell Mutual Reinsurance Company's homeowner's policy issued to appellant Bonnie Ehmke does not provide coverage for an incident in which appellant Jessica Ehmke, a minor, injured her father, appellant Jeffrey Ehmke. Appellants Bonnie and Jessica Ehmke argue that the district court erred by concluding that the intentional-act and criminal-act exclusions in the policy preclude coverage. Because the undisputed evidence demonstrates that, as a matter of law, Jessica Ehmke did not intend to injure her father, we reverse and remand for entry of summary judgment in favor of appellants Bonnie and Jessica Ehmke on the issue of coverage.

Appellant Jeffrey Ehmke challenges the district court's confirmation of an arbitration award in his separate arbitration agreement with Grinnell. Because Jeffrey Ehmke has not briefed or argued this issue, we consider it waived.

FACTS

Jessica Ehmke, age 17, was standing next to the refrigerator arguing with her father, Jeffrey Ehmke, who was seated at the kitchen table. Jessica reflexively threw a refrigerator magnet at her father after he threw a can of beer that struck her in the leg. Despite the fact that Jessica Ehmke used her non-dominant hand for the admittedly retaliatory toss, the magnet unexpectedly struck Jeffrey Ehmke in the left eye. He is now blind in that eye.

Jeffrey Ehmke, who is Jessica Ehmke's non-custodial parent, sued Bonnie Ehmke*fn1 (Jessica Ehmke's mother) and Jessica Ehmke for his injuries. Respondent Grinnell Mutual Reinsurance Company insures Bonnie and Jessica Ehmke under a homeowner's policy issued to Bonnie Ehmke. Grinnell accepted Bonnie Ehmke's tender of defense under a reservation of rights and brought a declaratory judgment action, asserting that the intentional-act and criminal-act exclusions in the policy preclude coverage for this event.

For reasons not explained in the record, Jeffrey Ehmke, who is a party to the declaratory judgment action, entered into binding arbitration with Grinnell under Minn. Stat. § 572.08-30 (2002). The sole arbitration issue was "whether the acts of Jessica Ehmke * * * were sufficient to exclude coverage under [Grinnell's] policy * * *." The arbitrator concluded that Jessica Ehmke's acts are excluded from coverage. Jeffrey Ehmke moved to vacate the arbitrator's award under Minn. Stat. § 572.19, subd. 1 (2002).

The arbitrator denied the motion. Grinnell sought confirmation of the arbitrator's award in district court under Minn. Stat. § 572.18 (2002) and Minn. R. Gen. Pract. 114.09. The district court confirmed the arbitrator's award. Jeffrey Ehmke appealed confirmation of the arbitration award, but failed to assert any argument or authority to support his position on appeal. Because the issue was not briefed on appeal, we consider it waived. Melina v. Chaplin, 372 N.W.2d 19, 20 (Minn. 1982). At oral argument, counsel for Grinnell candidly conceded that the arbitration award has no effect on Jeffrey Ehmke's right to pursue his tort action against Jessica Ehmke and no effect on whether there is coverage for Jessica Ehmke's act.

Grinnell and Bonnie and Jessica Ehmke filed cross-motions for summary judgment in the declaratory judgment action. The district court granted summary judgment to Grinnell based on the intentional-act and criminal-act exclusions in the ...


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