SUPREME COURT OF FLORIDA

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					           SUPREME COURT OF FLORIDA
      _______________________________________

                 Case No. SC02-2654
      _______________________________________

          ISRAEL CABEZAS, an incompetent
          by and through IVELICE CABEZAS
         FERRER, his guardian, and MODESTA
                  CABEZAS, his wife,

                     Petitioners,

                         vs.

         FLORIDA FARM BUREAU CASUALTY
       INSURANCE COMPANY, BOBBY HELMS,
          JUDITH HELMS and JASON HELMS,

                    Respondents.
      _______________________________________

     ON REVIEW FROM THE DISTRICT COURT OF
       APPEAL OF FLORIDA, THIRD DISTRICT
      _______________________________________

CORRECTED ANSWER BRIEF ON MERITS OF RESPONDENT
FLORIDA FARM BUREAU CASUALTY INSURNCE COMPANY
       _______________________________________

                    Greg M. Gaebe
                    Joel V. Lumer
                    Gaebe, Mullen, Antonelli, Esco & DiMatteo
                    Attorneys for Respondent
                    Florida Farm Bureau Casualty
                    Insurance Company
                    420 South Dixie Highway
                    Third Floor
                    Coral Gables, Florida 33146
                    Tel: 305-667-0223
                                     TABLE OF CONTENTS
                                                                                                   Page

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. iii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. 1

Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1

Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5

        I.           Was Helms punching Cabezas in the face an
                     “occurrence” that is covered under the Florida Farm
                     Bureau homeowner’s insurance policy?

        II.          Did Helms’ punch to Cabezas’ face result in bodily
                     injury which was expected or intended by Helms
                     and excluded from coverage under the Florida
                     Farm Bureau homeowner’s insurance policy?

              III.   Is a ruling in this case premature if it is made a) before
                     the court of appeal reviews the judgment for Helms
                     in the underlying case and b) without the ability to
                     see the evidence in the underlying case concerning
                     Helms’ intent to punch Cabezas?

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.6

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. 9

              I. HELMS PUNCHING CABEZAS IN THE FACE WAS
                 NOT AN “OCCURRENCE” COVERED BY THE
                 FLORIDA FARM BUREAU HOMEOWNER’S
                 INSURANCE POLICY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 9

                                                     i
       II. HELMS’ PUNCH TO CABEZAS’ FACE CAUSED A
           BODILY INJURY WHICH WAS EXPECTED OR
           INTENDED BY HELMS AND CONSEQUENTLY
           EXCLUDED FROM COVERAGE UNDER THE FLORIDA
           FARM BUREAU HOMEOWNER’S INSURANCE POLICY . . 15




                                                                                                   Page

         III. A RULING IN THIS CASE WOULD BE PREMA-
              TURE IF MADE BEFORE THE COURT OF
              APPEAL REVIEWS THE JUDGMENT FOR THE
              DEFENDANT IN THE UNDERLYING CASE
              AND WITHOUT THE ABILITY TO SEE THE
              EVIDENCE IN THE UNDERLYING CASE
              CONCERNING HELMS’ INTENT TO PUNCH
              CABEZAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35




                                                     ii
                                 TABLE OF CITATIONS

Cases

        Pages

Aetna Insurance Company v. Waco Scaffold & Shoring
Company, Inc.
      370 So. 2d 1149 (Fla. 4th DCA 1978) . . . . . . . . . . . . . . . . . . . .              33

Allstate Insurance Company v. RJT Enterprises, Inc.
       692 So. 2d 143 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5

Allstate Insurance Company v. Sowers
       97 Or. App. 658, 776 P.2d 1322 (1989) . . . . . . . . . . . . . . . . . . .            27

Allstate Insurance Company v. Wise
       818 So. 2d 524 (Fla. 2d DCA 2001) . . . . . . . . . . . . . . . . . . . . .
24

American Family Mutual Insurance Company v. Johnson
     816 P. 2d 952 (Colo. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26

American Family Mutual Insurance Company v. Mission Medical
Group, Chtd.
     72 F.3d 645 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26

Auto Club Group Insurance Company v. Burchell
      249 Mich. App. 468, 642 N.W. 2d 406 (2002). . . . . . . . . . . . . .                   29, 30

Brooks v. Continental Casualty Co.
      13 La. App. 502, 128 So. 183 (1930) . . . . . . . . . . . . . . . . . . . .              31

Butler v. Beahaege
       37 Colo. App. 282, 548 P.2d 934 (1976) . . . . . . . . . . . . . . . . . .             29

Casualty Reciprocal Exchange v. Thomas
     7 Kan. App. 2d 718, 647 P.2d 1361 (1982) . . . . . . . . . . . . . . . .                 29,
30

Cavalier v. Suberville
      592 So. 2d 506 (La. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . .          32

                                                iii
Curtin v. Aldrich
      589 S.W. 2d 61 (Mo. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . .
25

Doyle v. Allstate Insurance Company
      255 A.D. 2d 795, 600 N.Y.S. 2d 741 (3d Dept. 1998) . . . . . . . .                      27

Erie Insurance Group v. Buckner
       127 N.C. App. 405, 489 S.E. 2d 901 (1997) . . . . . . . . . . . . . . .                29

Groover v. State
     458 So. 2d 226 (Fla.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Hagen v. Aetna Casualty and Surety Company
     675 So. 2d 963 (Fla. 5th DCA 1996) . . . . . . . . . . . . . . . . . . . . .              5

Hartford Accident and Indemnity Company v. Krekeler
      363 F. Supp. 354 (E.D. Mo. 1973) . . . . . . . . . . . . . . . . . . . . . .
28

Hartford Fire Insurance Company v. Spreeen
      343 So. 2d 649 (Fla. 3d DCA 1977) . . . . . . . . . . . . . . . . . . . . .
10

Home Insurance Company v. Neilsen
     165 Ind. App. 445, 332 N.E. 2d 240 (3d Dist. 1975) . . . . . . . .                       27

Hooper v. State Farm Mutual Automobile Insurance Co.
     782 So. 2d 1029 (La. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . .
2

Hrynkiw v. Allstate Floridian Insurance Company
      844 So. 2d 739 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . . . .
19

Illinois Insurance Exchange v. Scottsdale Insurance Co.
        679 So. 2d 355 (Fla. 3d DCA 1996) . . . . . . . . . . . . . . . . . . . . . .
5

In re Alvarez
       342 So. 2d 492 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12


                                                iv
Jones v. Norval
      203 Neb. 549, 279 N.W. 2d 388 (1979) . . . . . . . . . . . . . . . . . . .              27


Koikos v. Travelers Insurance Company
      28 Fla. L. Weekly S194 (Fla. Mar. 6, 2003) . . . . . . . . . . . . . . .               14

Lambert v. Doe
       453 So. 2d 844 (Fla. 1st DCA 1984) . . . . . . . . . . . . . . . . . . . . .
12, 13

Landis v. Allstate Insurance Company
      546 So. 2d 1051 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . .           15


Mah See v. North American Accident Insurance Company
     190 Cal. 421, 213 P. 42 (1923) . . . . . . . . . . . . . . . . . . . . . . . . .         30

Muscato Corporation v. Hartford Insurance Company
     710 So. 2d 176 (Fla. 5th DCA 1998) . . . . . . . . . . . . . . . . . . . . .             24

National Union Fire Insurance Company v. Lenox Liquors, Inc.
      358 So. 2d 533 (Fla. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5

Nationwide Mutual Fire Insurance Company v. Mitchell
      911 F. Supp. 230 (S.D. Miss. 1995) . . . . . . . . . . . . . . . . . . . . . .
28

Newsome v. Travelers Insurance Co.
     143 Ga. 785, 85 S.E. 1035 (1915) . . . . . . . . . . . . . . . . . . . . . . .
30

Orear v. Allstate Insurance Company
      619 So. 2d 974 (Fla. 2d DCA 1993) . . . . . . . . . . . . . . . . . . . . .
24

Pendergraft v. Standard Fire & Marine Co.
     342 F.2d 427 (10th Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . .
31

Pennsylvania Millers Mutual Insurance Comapany v. Rigo
     256 A.D. 2d 769, 681 N.Y.S.2d 414 (3d Dept. 1998) . . . . . . . .                       27

Peters v. Trousclair

                                               v
        431 So. 2d 296 (Fla. 1st DCA 1983) . . . . . . . . . . . . . . . . . . . . .         21,
22

Prasad v. Allstate Insurance Company
      644 So. 2d 992 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    17


Prudential Property and Casualty Insurance Company v. Swindal
     622 So. 2d 467 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     17

Savino v. Luciano
      92 So. 2d 817 (Fla. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12

Simpson v. Angel
     598 So. 2d 584 (La. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . .           32

Smith v. Keller
      151 Wis. 2d 264, 444 N.W. 2d 396 (Ct. App. 1989) . . . . . . . . .                     25,
26

Soler v. Kukula
       297 So. 2d 600 (Fla. 3d DCA 1974) . . . . . . . . . . . . . . . . . . . . . .
12

Spengler v. State Farm Fire and Casualty Company
      568 So. 2d 1293 (Fla. 1st DCA 1990) . . . . . . . . . . . . . . . . . . . . .           21, 22, 23

State Farm Auto Mutual Insurance Company v. Scroggins
       529 So. 2d 1194 (Fla. 5th DCA 1988) . . . . . . . . . . . . . . . . . . . .           17

State Farm Fire and Casualty Company v. Caldwell
       630 So. 2d 668 (Fla. 4th DCA 1994) . . . . . . . . . . . . . . . . . . . . .           20

State Farm Fire and Casualty Company v. CTC Development Corp.
       720 So. 2d 1072 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . .         9

State Farm Fire and Casualty Company v. Groshek
       161 Mich. App. 703, 411 N.W. 2d 480 (1987) . . . . . . . . . . . . .                  30

State Farm Fire and Casualty Company v. Jenkins
       147 Mich. App. 462, 382 N.W. 2d 796 (1985) . . . . . . . . . . . . .                  30

State Farm Fire and Casualty Company v. Marshall
       554 So. 2d 504 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . .     16

                                               vi
State Farm Fire and Casualty Company v. Martin
       673 So. 2d 518 (Fla. 5th DCA 1996) . . . . . . . . . . . . . . . . . . . . .                  2

Steinmetz v. North American Insurance Company
      121 Ariz. 268, 589 P.2d 911 (1979) . . . . . . . . . . . . . . . . . . . . . .             29

Thornber v. City of Fort Walton Beach
     534 So. 2d 754 (Fla. 1st DCA 1988) . . . . . . . . . . . . . . . . . . . . .                34

Utter v. Travelers Insurance Co.
       65 Mich. 545, 32 N.W. 812 (1887) . . . . . . . . . . . . . . . . . . . . . .              30

Wainwright v. State
     704 So. 2d 511 (Fla. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . .              13

Westmoreland v. Lumberman’s Mutual Casualty Company
     704 So. 2d 176 (Fla. 4th DCA 1997) . . . . . . . . . . . . . . . . . . . . .                    33

Wildblood v. Continental Insurance Co.
      182 La. 202, 161 So. 584 (1935) . . . . . . . . . . . . . . . . . . . . . . . .                30, 31

Other Authorities

Merriam-Webster Collegiate Dictionary . . . . . . . . . . . . . . . . . . . . . . . .            23

Section 90.410, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13




                                                  vii
                                 INTRODUCTION

      This brief is filed on behalf of respondent, Florida Farm Bureau Casualty

Insurance Company, in response to Petitioners’ Brief on the Merits filed by Israel

Cabezas. In the brief, the parties will be referred to by their proper names and the

positions held at the trial court level. References to the record on appeal will be

abbreviated with the letter R. Reference to the appendix to this brief will be

abbreviated with the letter A.

                     STATEMENT OF THE CASE AND FACTS

      Florida Farm Bureau Casualty Insurance Company would add the following to

the State of the Case and Facts filed by Israel Cabezas. On February 1, 1999 (R213),

at approximately 5:00 p.m. (R213-14), Jason Helms and Israel Cabezas were involved

in a minor automobile accident at S.W. 8th Street and 152nd Avenue in Homestead,

Florida (R215). The Cabezas vehicle was traveling between 0 to 10 m.p.h. (R227)

when the back of the car struck the right front corner of the Helms truck (R212).

      Cabezas proceeded away from the accident scene “down” 152nd Avenue (R

228-29) and Helms “went down 152nd Avenue after him.” (R229). Helms’ intent was

“[t]o stop him [Cabezas] from leaving the scene of the accident” (R229-30). After

pursuing Cabezas for approximately 1,500 to 1,700 feet (R231), Helms caught up with

Cabezas (R231) and Cabezas “pulled” his vehicle off the road. (R232). Helms then

parked his truck off the roadway immediately behind the Cabezas car (R235).

      Both Helms and Cabezas “jumped” out of their vehicles (R212). Helms was

close enough to Cabezas that he saw Cabezas did not have to unsnap his seat belt

(R260). Helms saw Cabezas exit his car and that he was wearing long pants (R259).

                                          1
Helms saw that Cabezas did not have anything in his hands (R260) and that he was not

wearing sunglasses (R260).

      Helms walked to the front of his truck to inspect the damage (R232).

According to Helms:

             And the next thing I knew, this man or person was behind
             me raising his arms, yelling saying it was all your fault and
             all this. And when I turned around all I saw were hands in
             the air and I thought he was going to hit me, so I reacted
             quickly.

(R212). At a different point in his deposition, Helms was asked: “At the time that the

incident took place between you and Mr. Cabezas, were you afraid?” (R 258). Helms

answered: “Well, when I turned around and I saw him with his arms in the air, yes, I

was afraid.” (R258). Helms was asked: “What did you do?” and he responded: “I

hit him.” (R212).

      Helms was able to see that he hit Cabezas on the left side of the head (R256)

with his right fist (R233). Helms was close enough to Cabezas that he could see there

was no blood on Cabezas’ face when he was hit (R256). Helms could see that

Cabezas had all his hair, and no gray hair (R236), and was close enough to see that

Cabezas had “[h]ardly any wrinkles… [only] a few wrinkles on his face.” (R 236).

Helms saw that Cabezas “went with the punch” (R256) and fell to the right side (R

256). After Cabezas fell to the ground, Helms walked up to Cabezas and said “I’m

sorry. Can I help you up.” (R233). Cabezas said something that Helms could not

understand (R233) and another motorist exited his vehicle, pushed Helms away from

Cabezas and told Helms to “get away.” (R178).

      At the plea hearing in State of Florida v. Jason Helms, Fla. 11th Cir. No. F99-

                                          2
3830, the following was said:

                  THE COURT: I can’t get a stipulation. I need to get a
                factual basis for the plea. I heard the factual basis. I think
                the factual basis he is not contesting needs to go on the
                record.
                  MR. WELT:           If the State had gone to trial, the State
                would have proven beyond a reasonable doubt that on
                February 1, 1999, the defendant, Jason Helms, would have
                been found guilty of a felony battery, which means that he
                knowingly punched, intentionally struck, Israel Cabezas in
                the head. That caused him to fall backwards. And he did
                not intend for the actual injuries, serious bodily injuries that
                was caused by the actual punching. That happened in Dade
                County, Florida.
                 THE COURT: Any objection to that, Mr. Helms? In other
                words, that’s about what happened, is that correct?
                  THE DEFENDANT: Yes, ma’am.
                  THE COURT: Mr. Thornton, you agree?
                  MR. THORNTON:               Yes. I think when I had spoken
                with the civil plaintiff’s lawyer, Ed Ratiner, there was a little
                bit more that he wanted to make sure was in there
                concerning the factual basis including the fact that there had
                been an accident between the two. That Mr. Cabezas left
                the scene. That Mr. Helms chased after him because he
                was to make sure that the car he was driving, which was in
                his father’s name, that that was properly done. And that
                when he did get to the scene, the two of them got out of the
                car and that Mr. Helms lost it at that particular time. And I
                think those are the essential facts that he wanted to make
                sure were in there.

(A8-9).1

        Florida Farm Bureau Casualty Insurance Company issued a homeowner’s

insurance policy to Bobby Helms and Judith Helms (R122), the parents of Jason

Helms (R155). The insurance provided coverage for personal liability because of

bodily injury “caused by an occurrence to which this coverage applies….” (R138).

        1
          A motion to supplement the record on appeal to include the transcript of this proceeding has
been filed this day. The parties agree the transcript was before the trial court and inadvertently omitted
from the record on appeal.

                                                     3
The word “occurrence” is defined in the policy to “mean[] an accident… which

results, during the policy period, in: bodily injury….” (R129). There is an exclusion

to this insurance for “bodily injury… which is expected or intended by the insured.”

(R138).

          Page 1 of Petitioners’ Brief on the Merits discusses “[t]he facts determinative

of Farm Bureau’s duty to defend….” It should be understood that the duty to defend

has nothing to do with this case as Farm Bureau defended Helms in the underlying

action. This case only concerns Farm Bureau’s duty to indemnify should the Third

District Court of Appeal reverse the judgment entered for Helms in the underlying tort

action. The duty to indemnify is narrower than the duty to defend. See Illinois

Insurance Exchange v. Scottsdale Insurance Co., 679 So. 2d 355, 357 (Fla. 3d DCA

1996) and Allstate Insurance Company v. RJT Enterprises, Inc., 692 So. 2d 143, 144

(Fla. 1997). While the allegations of a complaint govern the duty to defend, see

National Union Fire Insurance Company v. Lenox Liquors, Inc., 358 So. 2d 533, 536

(Fla. 1978), it is the facts developed in the underlying action that determine the duty

to indemnify “[r]egardless of the allegations of the complaint.”        Hagen v. Aetna

Casualty and Surety Company, 675 So. 2d 963, 965 (Fla. 5 t h DCA 1996).

Consequently, the matters quoted from the second amended complaint in the

underlying case at pages 1-2 of Cabezas’ brief concern only moot matters and are

irrelevant to the issues before this court.

                          ISSUES PRESENTED FOR REVIEW

   III.         Was Helms punching Cabezas in the face an “occurrence” that is covered

under the Florida Farm Bureau homeowner’s insurance policy?

                                              4
   IV.         Did Helms’ punch to Cabezas’ face result in bodily injury which was

expected or intended by Helms and excluded from coverage under the Florida Farm

Bureau homeowner’s insurance policy?

   V.          Is a ruling in this case premature if it is made a) before the court of appeal

reviews the judgment for Helms in the underlying case and b) without the ability to see

the evidence in the underlying case concerning Helms’ intent to punch Cabezas?

                              SUMMARY OF ARGUMENT

         The Florida Farm Bureau homeowner’s policy provides liability insurance for

occurrences which are defined to encompass only accidents. The punch that Jason

Helms delivered to Israel Cabezas’ face was not an accidental event as a punch to the

face is so inherently dangerous or harmful, with injury so sure to follow, that the law

of Florida would never consider it an accidental event.

         Florida case law has never found coverage under an accident based insurance

policy where the insured’s act was deliberately designed to cause harm to the injured

person. In this case, the punch of Jason Helms was deliberately designed to cause

harm to the person, within the immediate reach of his fist, who was raising his arms

yelling that the just concluded auto accident between the two was all the fault of

Helms.

         From the standpoint of Jason Helms, it was both expected and intended that his

punch to the face of Israel Cabezas would cause damage. Helms’ fist did not

accidentally make contact with Cabezas’ face. The punch that hit Cabezas was not the

result of a spasmodic, involuntary, muscle reaction by Helms. This is not a case of

a shot or punch in the dark where the person throwing the punch is unable to see the

                                              5
person he is hitting. Rather, Helms saw his fist make contact with Cabezas’ face.

       Helms punching of Cabezas falls within the exclusion in the homeowner’s

insurance policy for bodily injury which is expected or intended by the insured as

some form of harm inheres in and inevitably flows from punching another person in

the face. Neither motive nor the impulsive/reactive aspect of the punch is relevant to

the judicial inquiry as an intentional punch is not made accidental when it is thrown in

self defense or as an impulsive reaction to screaming or arm waiving of another.

       For the purpose of construing an intentional act exclusion in a homeowner’s

insurance policy, Florida law holds that a person is determined to intend his acts

against a victim even if the person did not fully understand what he or she was doing

at the time of a crime. This rule of law founded in diminished mental capacity to

reason should logically be applied to diminished cognitive capacity to recognize the

person you see you are punching.

       The public policy of Florida is that a person should not be allowed to insure for

losses resulting from intentional or criminal acts and such acts would be encouraged,

or at least not dissuaded, if insurance were available to shift the financial burden of the

loss from the wrongdoer to the insurer. An exception to the rule requested by

defendant would allow persons engaging in intentional and criminal acts to avoid

financial responsibility by saying they did not know, or were somehow confused

about, the identity of the person they assaulted.

       Florida law, even the cases relied on by defendant, hold that an act is intentional,

even where there is confusion about the identity of the person being assaulted, when

the assault was directed to the person of the victim. Consequently, even though Helms

                                             6
was confused about the identity of the person he punched, his act was still an

intentional one as it was intentionally directed to the person of Cabezas.

       A ruling by the court in this case should await the ruling by the Florida Third

District Court of Appeal in the underlying tort claim of Cabezas v. Helms. If the court

of appeal affirms the judgment for the defendant in the underlying case, then the

present case will become moot. If the court of appeal reverses, then the record in the

underlying case can be consolidated with the record on appeal in the present case. At

that point, this court can see evidence in the underlying case it does not presently have,

which is important to the present case, in light of the rule that the duty to indemnify of

an insurance company is supposed to be determined by the facts established at the

trial of the underlying case.




                                            7
                                     ARGUMENT

                                           I.

              HELMS PUNCHING CABEZAS IN THE FACE
           WAS NOT AN “OCCURRENCE” COVERED BY THE
      FLORIDA FARM BUREAU HOMEOWNER’S INSURANCE POLICY

      The homeowner’s policy issued by Florida Farm Bureau to Bobby Helms and

Judith Helms provides liability insurance for bodily injuries caused by occurrences.

The word “occurrence” is defined in the policy to mean an accident which results in

bodily injury.   The Florida Supreme Court discussed the meaning of the word

“accident” in the context of a liability insurance policy in State Farm Fire and Casualty

Company v. CTC Development Corporation, 720 So. 2d 1072 (Fla. 1998), and held

that the word encompasses not only accidental events, but also injuries or damages

neither expected nor intended from the standpoint of the insured. 720 So. 2d at 1076.

The Supreme Court, though, did not intend to construe the word to be all

encompassing or boundless. Instead, the court placed limits on what is intended to

be covered and said:

             In many cases the question of whether the injury or
             damages were unintended or unexpected will be a question
             of fact; in some cases, the question will be decided as a
             matter of law, such as in cases where the insured’s actions
             were so inherently dangerous or harmful that injury was sure
             to follow. See, e.g., Landis v. Allstate Ins. Co., 546 So.2d
             1051 (Fla.1989)(harm always results from sexual abuse so
             that any intent to commit abuse necessarily carries with it an
             intent to commit harm). As Justice Souter stated while a
             member of the New Hampshire Supreme Court, “If the
             insured did not intend to inflict the injury on the victim by
             his intentional act, and the act was not so inherently
             injurious that the injury was certain to follow from it, the act
             as a contributing cause of injury would be regarded as
             accidental and an ‘occurrence.’ ” Vermont Mutual Ins.

                                            8
              Co. v. Malcolm, 128 N.H. 521, 517 A.2d 800, 803
              (N.H.1986).

Id.

        It has been plaintiffs’ position throughout this case that harm always results

when you punch someone in the face and that punching a person in the face is so

inherently dangerous or harmful that injury is sure to follow. This is not a case where

Jason Helms accidentally had his fist make contact with Israel Cabezas’ face. To the

contrary, the evidence is clear and uncontested that Helms purposefully intended to

inflict an injury on the person whose face was on the other side of his fist. Helms

testified that he punched Cabezas, that he was close enough to see that his right fist

made contact with the left side of Cabezas’ face, that there was no blood on Cabezas’

face when he was hit and that there were only a few wrinkles on Cabezas’ face at the

time. This is not a case of someone shooting in the dark or accidentally hitting

someone due to a spasmodic fit.

        The case of Hartford Fire Insurance Company v. Spreen, 343 So. 2d 649 (Fla.

3d DCA 1977), involved a homeowner’s insurance policy with provisions almost

identical to the Florida Farm Bureau policy discussed above. As in the present case,

the claim for insurance coverage asserted that the insured punched the injured party

in the face “on the spur of the moment.” The district court rejected that argument and

said:

                     The appellees argue that while Spreen intended to hit
              King he did so on the spur of the moment, did not foresee
              the extent of King’s injuries, and therefore did not intend
              them. The argument is unpersuasive. It is a subtle method
              of introducing the tort rule of foreseeability into insurance
              contract cases through the back door. Such a notion has

                                           9
             been repeatedly rejected by Florida courts.

343 So. 2d at 651. In holding that the punch was not an “accident” for purposes of

coverage under a homeowner’s policy, the court stated “never has coverage been

found in such policies where the insured’s act was deliberately designed to cause harm

to the injured person.”    Id.   In the present case, Helms’ punch was deliberately

designed to cause harm to the person who was “raising his arms, yelling saying it was

all your fault and this” and it did, in fact, cause harm to that same person.

      The trial court did not commit error in considering the admissions of Helms and

his counsel at the plea conference in the criminal court case that 1) there had been an

auto accident involving Helms and Cabezas, 2) Cabezas left the scene, 3) Helms

chased after Cabezas in his truck, 4) the two got out of their respective vehicles when

Helms caught up with Cabezas, 5) “Mr. Helms lost it at that particular time” and 6)

Helms “knowingly punched, intentionally, struck Israel Cabezas in the head.” The

transcript of the proceeding makes clear that Helms and his counsel were intentionally

placing these facts into the record at the request of “the civil plaintiff’s lawyer, Ed

Ratiner,” who “wanted to make sure” these facts were placed on the record. The only

conceivable reason or purpose of why “the civil plaintiff’s lawyer, Ed Ratiner,” could

have wanted these particular facts placed in the record was for use in a connected civil

proceeding. Mr. Ratiner had no interest in any other matter involving those facts.

      Evidentiary privileges can be waived. See e.g., In re Alvarez, 342 So. 2d 492,

494 (Fla. 1977)(waiver of privileged communication with psychiatrist); Tidbado v.

Brees, 212 So. 2d 61, 63 (Fla. 2d DCA 1968)(waiver of privileged communication

between husband and wife); and Savino v. Luciano, 92 So.2d 817, 819 (Fla.

                                            10
1957)(“As in the case of all personal privileges, the accountant-client privilege may be

waived by the client.”). The privilege of statements given in contexts similar to the plea

conference are subject to waiver. In Lambert v. Doe, 453 So. 2d 844, 849 (Fla. 1st

DCA 1984), the court found a waiver of the statutory confidentiality of statements

made by juveniles to court and corrections personnel absent an objection by the

juvenile who made the statement. In Soler v. Kukula, 297 So. 2d 600, 602 (Fla. 3d

DCA 1974), the court found a waiver of the statutory confidentiality of statements

given to police officers investigating accidents.

       The purpose of the statute creating the evidentiary privilege defendant asserts

is to promote free and open discussions between the prosecution and defense during

attempts to reach a plea compromise. See Wainwright v. State, 704 So. 2d 511, 513

(Fla. 1997), quoting, Groover v. State, 458 So. 2d 226, 228 (Fla. 1984). That purpose

would not be advanced by excluding the statements used in the present case as the

principal purpose for making the statements was for use by “the plaintiff’s civil lawyer,

Ed Ratiner.”

       Defendant, Cabezas, was not a party to the criminal court proceeding against

Helms and was not the person § 90.410, Fla. Stat., was intended to protect.

Consequently, Cabezas lacks standing to assert the privilege which belongs to the

person making the statements and on whose behalf the statements were made, Jason

Helms. In an analogous context, it has been held that only a witness has the right to

assert the Fifth Amendment privilege against self-incrimination and that a party to the

case where the witness is testifying can neither assert the privilege nor raise as error on

appeal that the privilege was not allowed. See United States v. Fredericks, 586 F.2d

                                             11
470, 481 (5th Cir. 1978). In Lambert v. Doe, the court said: “The confidentiality

provisions of Section 39.12(4) are intended for the protection of juveniles and are not

intended to be used by an allegedly negligent landlord as a shield against liability for

damages arising from such negligence.”          453 So. 2d at 849.       Similarly, the

confidentiality provisions of § 90.410, Fla. Stat., were not intended to be used by a

personal injury claimant trying to invoke insurance coverage especially in the instance

where the statements at the plea conference were purposefully placed on the record

at the request of the claimant’s personal injury lawyer.

      This court recently stated in construing the word “occurrence” in a liability

insurance policy: “It is the act that causes the damage, which is neither expected nor

intended from the standpoint of the insured, that constitutes the ‘occurrence.’” Koikos

v. Travelers Insurance Company, 28 Fla. L. Weekly S194, 197 (Fla. Mar. 6, 2003).

From the standpoint of the insured, Jason Helms, it was both expected and intended

that his punch to the face of Israel Cabezas would cause damage.            Helms was

presented with a person who was raising his arms and yelling “it was your fault and all

this.” He had just been involved in an auto accident with that person, had just chased

down the other car involved in the accident, seen the other driver stop his vehicle,

parked his own vehicle behind the other driver’s, exited his vehicle, seen the other

driver exit his vehicle, and according to Helms’ own testimony “I thought he was

going to hit me” and “I hit him.” Under the construction of the word “occurrence”

made by this court, the act of Jason Helms punching Israel Cabezas in the face was

not an “occurrence” as that word is used in a standard liability insurance policy,

especially in light of Helms’ admission “that he knowingly punched, intentionally

                                           12
struck, Israel Cabezas in the head” and his lawyer’s statement on behalf of Helms that

“the two of them got out of the car and that Mr. Helms lost it at that particular time.”

                                            II.

              HELMS PUNCH TO CABEZAS’ FACE CAUSED A
               BODILY INJURY WHICH WAS EXPECTED OR
               INTENDED BY HELMS AND CONSEQUENTLY
            EXCLUDED FROM COVERAGE UNDER THE FLORIDA
            FARM BUREAU HOMEOWNER’S INSURANCE POLICY

       Florida Supreme Court decisions concerning when an event falls within the

exclusion for injuries expected or intended by the insured constitutes a consistent

body of law whose principles would exclude coverage under the facts of the present

case where Helms punched Cabezas in the face.              Landis v. Allstate Insurance

Company, 546 So. 2d 1051 (Fla. 1989), construed an exclusion in a homeowner’s

insurance policy for “bodily injury intentionally caused by an insured person.” See

Landis v. Allstate Insurance Company, 516 So. 2d 304, 306 n. 2 (Fla. 3d DCA 1987).

In that case, the court rejected the idea that an intentional acts exclusion did not apply

if an insured did not have the specific intent to cause harm and adopted the principle

“that it is inherent in the logic of our system that ‘some form of harm inheres in and

inevitably flows from the proscribed behavior’[child molesting].” 546 So. 2d at 1053.

Similarly, it can be said that some form of harm inheres in and inevitably flows from

punching a person in the face. If one accepts that proposition, then under Landis there

is no need to have the specific intent to cause harm for an intentional act exclusion to

apply to a punch in the face, as some form of harm inheres in and inevitably flows

from that type of behavior. Plaintiff asserts this rule applies to the facts of the present

case where the punch made by Helms was not a wild swing in the dark or the result of

                                            13
a spasmodic fit, but rather an ordinary punch in the face that both lawyer and layman

know will necessarily cause harm.

      State Farm Fire and Casualty Company v. Marshall, 554 So. 2d 504 (Fla. 1989),

stated the purpose underlying an intentional act exclusion as follows: “First, insurance

companies set rates based on the random occurrence of insured events; if an insured

is allowed to consciously control the occurrence of these events through the

commission of intentional acts, the principle is undercut. Second, the indemnification

for intentional acts would stimulate persons to commit wrongful acts.” 554 So. 2d at

505. The same principles apply to the punch which is the subject of the present case.

The court in Marshall rejected the argument that an intentional act exclusion was

inapplicable to impulsive or reactive assaults and assaults in self-defense (the type of

assault to which Helms testified) and said:

             The intent underlying an act of self-defense where the
             defender intends to harm the attacker is identical to that
             underlying an assault. In each, the actor inends to inflict
             harm on the other. Just as an assault is often impulsive or
             reactive, so too is self-defense. The difference between the
             two lies in the motive or purpose governing the act; the
             motive for one is worthy, that for the other is not. See
             Clemmons. Nevertheless, such acts of self-defense are
             undeniably intentional and have been held to be embraced
             within intentional act exclusions by a majority of courts.

554 So. 2d at 505. Consequently, the law of Florida would include the impulsive,

reactive, self-defense punch described by the insured, Helms, within the scope of

intentional acts excluded from coverage under a standard homeowners’s insurance

policy.

      The decision in Prudential Property and Casualty Insurance Company v.


                                              14
Swindal, 622 So. 2d 467 (Fla. 1993), did not deviate from the Landis and Marshall

decisions and expressly approved both. Swindal involved an instance where a gun

accidentally discharged, 622 So.2d at 469, and this court held that an intentional act

exclusion “does not exclude coverage for injuries caused by negligent or otherwise

unintentional acts, because such injuries would not be ‘expected or intended by the

insured.’” 622 So. 2d at 472. The opinion of the court expressly approved of the

analysis in State Farm Auto Mutual Insurance Co. v. Scroggins, 529 So. 2d 1194 (Fla.

5th DCA 1988), and said that insurance coverage was excluded in that case because

“[s]ome from of bodily injury must have been expected or intended to result under

those circumstances ….” 622 So. 2d at 473. The principle approved, though dicta,

is applicable to the present case as some form of bodily injury must have been

expected or intended to result when Helms punched Cabezas in the face.

      Prasad v. Allstate Insurance Company, 644 So. 2d 992 (Fla. 1994), established,

or reaffirmed, the principle that for the purpose of an intentional acts exclusion in a

homeowner’s insurance policy a person intends acts against a victim “even if the

person did not fully understand what he or she was doing at the time of the crime.”

644 So. 2d at 995. In Prasad, the “full understanding” concept was applied to facts

involving diminished mental capacity of the actor, but it is entirely consistent to apply

the “full understanding” concept to the facts of the present case involving the

diminished cognitive capacity asserted by defendant that though Helms saw the punch

make contact with the face of the elderly Cabezas he possibly thought he was hitting

a youthful gang member.

      The essence of defendant’s argument is that due to the short reaction period

                                           15
between the time Helms saw Cabaezas face and the time his fist made contact with

Cabezas’ face Helms did not fully understand what he was doing when he punched

Cabezas, i.e., his brain did not work fast enough to process what his eyes were seeing

for him to understand that the person he was punching was Cabezas. (It should be

fully understood that defendant is not claiming either 1) Helms swung at a gang

member and accidentally hit Cabezas or 2) Helms swung in the dark not seeing who

he was swinging at and accidentally hit Cabezas. Helms’ testimony is clear that he

could see the face of the person he was hitting and see that his fist made contact with

the left side of the person’s head. Helms could see that his punch did not draw blood.

He could even see the wrinkles on the face of the person who was hit.) Within the

context of the full understanding principle established in Prasad, there is no difference

between the intent of the person who did not fully understand what she was doing due

to diminished mental capacity to process reasons and the intent of the person who did

not fully understand what he was doing due to diminished cognitive capacity to

process images.

      A good explanation of the purpose and intent of the intentional act exclusion is

found in the recent case of Hrynkiw v. Allstate Floridian Insurance Company, 844 So.

2d 739 (Fla. 5th DCA 2003), the court stating:

             The everyday meaning of this clause is that the policy does
             not insure against damages that an insured intentionally
             inflicts or that are reasonably expected to result from an
             insured’s intentional or criminal acts. The willingness of the
             courts to uphold intentional or criminal act exclusion
             clauses is premised on the jurisprudential maxim that no
             person should be allowed to profit from his or her own
             wrong. Lawyers and laymen alike generally understand that
             the public policy against insuring for losses resulting from

                                           16
             intentional or criminal acts is usually justified by the
             assumption that such acts would be encouraged, or at least
             not dissuaded, if insurance were available to shift the
             financial burden of the loss from the wrongdoer to the
             insurer.

844 So. 2d at 742.

      There is no question in the present case, but that Helms intentionally inflicted the

damages that were suffered by Cabezas. Further, the damages suffered by Cabezas

should be “reasonably expected to result from” a punch in the face.            What the

defendant in the present case is attempting to do is to shift the financial burden of the

loss he suffered from the wrongdoer, Helms, to the insurer and this is against the

public policy of the State of Florida when the loss results from a punch in the face, in

broad daylight, at close range, with no other person present other than the wrongdoer

and the victim.

      State Farm Fire and Casualty Company v. Caldwell, 630 So. 2d 668 (Fla. 4th

DCA 1994), involved another attempt to shift from a wrongdoer to an insurer the

obligation to pay for damages resulting from a punch in the face. The first sentence

of the opinion states the issue before the court: “The issue is whether the purposeful

and deliberate act of striking another person in defense of oneself falls within the

meaning of a homeowner’s insurance policy exclusion for bodily injury which is either

expected or intended by an insured even if the actor did not intend to harm the

person struck.” 630 So. 2d at 668 (emphasis supplied). The court answered in the

negative despite the statements of the insured “that he sufficiently negated, by reason

of his discovery testimony, intent to injure the guest, even though he did intend to

strike him ….” 630 So. 2d at 669. Petitioners’ Brief on the Merits quotes a portion of

                                           17
the last paragraph of the opinion, but to understand the meaning and intent of the

court’s holding it is important to read the entire paragraph which says:

                     In truth the insured invites us to find some difference
              between intending an act and intending the foreseeable and
              logical consequences of an act. Even if Marshall allowed
              us to do so, we should have to decline under the
              undisputed facts of this case. The host testified that he
              intended to strike the head of his menacing guest with the
              force that he expended. That force was sufficient to inflict
              serious injuries, a broken nose and a broken cheekbone.
              The distinction posed would allow all manner of persons
              engaging in intentional acts to escape accountability for
              those acts simply by disclaiming any intent to achieve the
              precise result that occurred. We cannot fairly do that.

630 So. 2d at 669.

       The distinction proposed by the defendant in the present case would create the

same problem: persons engaging in intentional acts could escape accountability (or

transfer it to their insurance companies) simply by professing the smallest amount of

uncertainty about the identity of the person they hit – even when 1) the two have just

been involved in an auto accident, 2) the aggressor has chased the victim down, 3)

immediately before the punch the victim was yelling at the aggressor that the accident

is all his fault and 4) the aggressor can see the face of the victim well enough to see the

spot where his fist landed on the victim’s head.

       Spengler v. State Farm Fire and Casualty Company, 568 So. 2d 1293 (Fla. 1st

DCA 1990), which is relied on by defendant, cannot be read in a vacuum, but rather

should be read in conjunction with the decision it discusses at length and distinguishes,

Peters v. Trousclair, 431 So. 2d 296 (Fla. 1st DCA 1983). In the latter case, Mr.

Trousclair came home to find Mrs. Trousclair with her paramour and also with Peters,


                                            18
who was her cousin and visiting upon invitation of Trousclair himself. In a jealous fit,

Trousclair stabbed Peters not recognizing that he was Mrs. Trousclair’s cousin and

present upon invitation of Trousclair.    The trial court held the stabbing was an

intentional act excluded from coverage under a homeowner’s insurance policy and the

court of appeals affirmed, stating:

                    The record supports the trial court’s finding. It
             reveals that although Trousclair was unaware at the time of
             the stabbing of the identity of Peters as being his wife’s
             cousin, knowledge which might have otherwise stayed his
             hand, the act was nonetheless intentionally, specifically
             directed toward the person of Peters.

431 So. 2d at 297. In the present case, though Helms has testified to some confusion

as to the identity of Cabezas at the time he punched him, it is uncontested that his

punch was nonetheless intentionally, specifically directed towards the person of

Cabezas.

      Spengler did not overrule Peters. Rather, it distinguished Peters and said:

             We find Peters v. Trousclair materially distinguishable from
             this case because Trousclair, the insured, intended to injure
             the person of Peters while not realizing that Peters was his
             wife’s cousin. Here, Harvey did not intend to injure the
             person of Spengler; he intended to shoot at what he
             perceived to be a burglar, not his lover. We recognized in
             Peters that because an insured’s act was “ ‘deliberately
             designed to cause harm’ to Peters” at the time it was
             committed, there was no negligence on the part of the
             insured.
                                         ...

             We then concluded that “Peters was the immediate and
             intended object of [Trousclair’s] wrath” and “that
             Trousclairs act was ‘deliberately designed to cause harm’
             to Peters at the moment he committed the act.”

568 So. 2d at 1296. In the case before this court, Cabezas was the immediate and

                                           19
intended object of Helms’ wrath and Helms’ punch was deliberately designed to cause

harm to the person of Cabezas at the moment it connected with Cabezas’ face.

      The Spengler case involved a shot fired in the dark, after midnight, inside the

insured’s home, just after the insured had been awaken form sleep. There had been

two prior burglaries of the house. The insured actually thought Spengler, the victim,

was next to him in bed and spoke to her as though she were next to him, not knowing

that she had gotten up to go to the bathroom. The shot was aimed in the direction of

a “shadowy figure” and not anyone the insured could see as Helms saw Cabezas. A

“shot in the dark” is defined in Merriam-Webster Collegiate Dictionary 1082 (10th ed.

2002) as “1: a wild guess. 2: an attempt that has little chance of success.” Because of

its slight chance of achieving any intended consequence, the resulting injury from a

shot in the dark is necessarily an accident. It is different, in kind, from a punch

delivered in broad daylight to the face of a person within the reach of one’s fist.

      Defendant attempts to distinguish the language used in the Florida Farm Bureau

policy involved in the present case from language used in insurance policies discussed

in other cases and argues that the exclusion here is less encompassing than that of

other insurance policies. The exclusion found in the Florida Farm Bureau policy

excludes coverage for bodily injury which is expected or intended by the insured. In

Orear v, Allstate Insurance Company, 619 So. 2d 974 (Fla. 2d DCA 1993), the court

construed the insurance policy as meaning “the exclusionary clause in our case speaks

of harm reasonably expected or in fact intended.” 619 So. 2d at 975. That is no

different from the meaning of the exclusion involved in the present case.             The

insurance policy involved in Allstate Indemnity Company v. Wise, 818 So. 2d 524 (Fla

                                            20
2d DCA 2001), was for automobile insurance and the court stated that “[t]he

interpretation of an automobile liability policy, such as in this case, necessarily involves

consideration of strong public policy concerns that do not apply in the context of

homeowner’s insurance.” 818 So. 2d at 526. The dissent of Judge Altenbernd cited

by defendant addresses the enlargement of the exclusion from intentional acts to both

intentional acts and bodily injury expected by the insured. The exclusionary clause in

the Florida Farm Bureau policy at issue covers both categories of exclusions.

       The distinction which defendant attempts at page 28 of his brief is a distinction

without a difference and Florida courts have generally not drawn the fine distinction

attempted. For example, see Muscato Corporation v. Hartford Insurance Company,

710 So. 2d 176 (Fla. 5th DCA 1998), where the court found there was no duty to

defend or indemnify and cited to standards of law that “intentional acts are not

‘occurrences’” and “intentional injury is not covered under a negligence-based

policy.” 710 So. 2d at 177.

       For the purposes of construing an intentional act exclusion in a homeowner’s

policy, “[a]s a matter of law the intentional act of discharging a firearm while directing

it at another human being is an ‘intentional’ act even though the firearm was discharged

in self-defense.” State Farm Fire and Casualty Company v. Martin, 673 So. 2d 518,

519 n. 1 (Fla. 5th DCA 1996). Logically, it should follow that as a matter of law

striking another human being in the face as the result of directing a punch at that

person is also an intentional act when the punch is thrown in self-defense as testified

to by Jason Helms.

       Decisions from outside the State of Florida support the rationale discussed

                                             21
above. In Smith v. Keller, 151 Wis. 2d 264, 444 N.W. 2d 396 (Ct. App. 1989), Keller

struck Smith upon the mistaken belief that Smith had been the person making

derogatory statements about Keller’s wife. The insurer under a homeowner’s policy

denied coverage pursuant to an exclusion for acts intended or expected to cause

bodily injury. In ruling there was no coverage, the court of appeals distinguished

Curtain v. Aldrich, 589 S.W. 2d 61 (Mo. App. 1979), which is relied on by defendant,

and said:

             Curtain involved an incident where the defendant, in his
             own home, struck his brother-in-law, the plaintiff, allegedly
             in the mistaken belief that he was a burglar. Id. at 62-63. If
             in fact the person had been a burglar, the defendant would
             have been privileged to use reasonable force. In our case,
             on the other hand, if Keller had actually succeeded in hitting
             the person who made the statement it still would have not
             been a privileged act. [citation omitted]. Mistake is only a
             defense if the defendant acts under the erroneous, albeit
             reasonable, belief that circumstances existed which would
             justify his conduct.

Smith, 444 N.W. 2d at 399. The court found that the exclusion applied, because

“[h]itting another person in the face is the type of act which is so certain to cause harm

that the person who performed the act can be said to have intended the harm.” Id.



      American Family Mutual Insurance Company v. Johnson, 816 P. 2d 952 (Colo.

1991), held that the intentional acts exclusion of a homeowner’s insurance policy

would apply to exclude coverage where the insured kicked a woman from behind

believing that she was another person, his wife, whom he thought was at a bar with

another man. Further, it should be noted that the Curtain decision was disapproved of

in American Family Mutual Insurance Company v. Mission Medical Group Chtd., 72

                                            22
F.3d 645, 647 (8th Cir. 1995), where the court held a mistake as to which building was

set on fire (as opposed to a mistake as to which person is punched) did not convert

the intentional act of arson into a negligent act for the purposes of an exclusion in a

homeowner’s policy against insuring for property damage which is expected or

intended by an insured.

      New York courts hold that because harm is inherent in the nature of a punch in

the face, any resulting damage will be considered to be intentionally caused within the

meaning of a homeowner’s policy exclusion, regardless of the rationalization of the

insured. See Doyle v. Allstate Insurance Company, 255 A.D. 2d 795, 600 N.Y.S. 2d

741, 742-43 (3d Dept. 1998), and the cases cited therein; and also without regard to

any characterization of the punch as being negligent or reckless. See Pennsylvania

Millers Mutual Insurance Company v. Rigo, 256 A.D. 2d 769, 681 N.Y.S. 2d 414, 416

(3d Dept. 1998).

      It is stated in Jones v. Norval, 203 Neb. 549, 279 N.W. 2d 388, 392 (1979):

                    Where an 18-year-old man intentionally hits another
             person in the face with his fist, with force enough to knock
             the person unconscious, an intent to cause bodily injury can
             be inferred as a matter of law, and the subjective intent of
             the actor is immaterial. From the very nature of the act, no
             reasonable man could doubt that harm to the person struck
             must have been intended.

Where there is a punch in the face, and the nature of the act is such that intent is

inferred as a matter of law, “an issue of motive or justification … does nothing to

avoid the inference of intent to harm.” Home Insurance Company v. Neilsen, 165 Ind.

App. 445, 332 N.E. 2d 240, 244 (3d Dist. 1975).

      In the case of Allstate Insurance Company v. Sowers, 97 Or. App. 658, 776

                                          23
P.2d 1322 (1989), the insured was resisting arrest from two police officers when a

third officer came to their assistance. The insured swung his body around, similarly

to what is being asserted by Jason Helms in the instant case, and struck a third officer

in the face with his fist without even seeing the officer. The opinion states that “Sowers

was not looking at Rowley when he hit him.” 776 P.2d at 1323. The claimant argued

that “[b]ecause Sowers did not intend to injure Rowley … the policy covered the loss

in question.” Id. The court rejected the argument, held there was no liability coverage

and said, “Rowley’s injury flowed from conduct that may reasonably be expected to

result from Sowers’ criminal act.” 776 P. 2d at 1323 n. 2. In Nationwide Mutual Fire

Insurance Company v. Mitchell, 911 F. Supp. 230 (S.D. Miss. 1995), the insured

testified that he blacked out and could not remember his fist actually contacting the

claimant’s face though he did concede he knew he had punched the claimant. The

court held this fell within the policy exclusion for intentional acts reasoning “that the

[contention the] act was impulsive or caused by blind rage or a buildup of tensions

from past incidents does not render the act unintentional.” 911 F. Supp. at 234.

      The thrust of the case law throughout the nation is that regardless of whether the

insured has blacked out, has not seen the victim, or hit the victim while turning his

body around, a punch directed toward another person’s face is an intentional act. As

explained in Hartford Accident and Indemnity Company v. Krekeler, 363 F. Supp.

354, 358 (E.D. Mo. 1973), “it is inescapable that Krekeler intended the movement of

his own arm, the clenching of his fist, and the forceful contact between his fist and

Donato’s body. It belies reason to say that he did not intend to physically injure

Donato. Why else the contact between fist and nose?” In the case of Auto Club

                                            24
Group Insurance Company v. Burchell, 249 Mich. App. 468, 642 N.W. 2d 406 (2002),

the insured characterized a punch and a body slam by saying that “he inadvertently

came into contact with [the claimants] while elbowing his way out of the bar ….” 642

N.W. 2d at 414. The court rejected the argument, analogous to the one being made

in the present case, as a transparent attempt to disguise claims in terms of negligence

in order to avoid the insurance policy’s intentional acts exclusion, and held “[t]here is

no duty to … provide coverage where the complaint is a transparent attempt to trigger

insurance coverage by characterizing allegations of tortious conduct under the guise

of ‘negligent’ activities.” Id.

       Similar to Florida, cases around the nation have found that neither an insured’s

justification for the intentional act, see e.g. Erie Insurance Group v. Buckner, 127 N.C.

App. 405, 489 S.E. 2d 901, 904 (1997), nor his motivation behind the intentional act,

see e.g. Steinmetz v. North American Insurance Company, 121 Ariz. 268, 589 P.2d

911, 914 (1979), and Butler v. Beahaege, 37 Colo. App. 282, 548 P.2d 934, 938

(1976), are sufficient to convert a punch in the face from an intentional act to an

accidental occurrence for purposes of a homeowner’s insurance policy. As stated in

Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 647 P.2d 1361 (1982),

a case involving the construction of an intentional act exclusion under a homeowner’s

insurance policy and a claim that a shooting was not intentional, “where an intentional

act results in injuries which are a natural and probable result of the act, the injuries are

intentional.” 647 P. 2d at 1364.

       Utter v. Travelers Insurance Co., 65 Mich. 545, 32 N.W. 812 (1887), which is

relied upon by defendant, is a case from 1887. In citing to that authority, defendant has

                                             25
overlooked an entire body of case law from the 20th and 21st centuries in Michigan

including, Auto Club Group Insurance Company v. Burchell, supra; State Farm Fire

& Casualty v. Groshek, 161 Mich. App. 703, 411 N.W. 2d 480, 483 (1987); and State

Farm Fire & Casualty Company v. Jenkins, 147 Mich. App. 462, 382 N.W. 2d 796

(1985), which have discussed the exclusion in homeowner’s policies for an injury

which is expected or intended by the insured and held that one who commits an act

that has a tendency to cause great bodily harm can reasonably expect harmful results

to ensue from commission of the act and consequently those acts are excluded from

coverage under a homeowner’s insurance policy.

       The Utter case, Newsome v. Travelers Insurance Co., 143 Ga. 785, 85 S.E.

1035 (1915), Mah See v. North American Accident Insurance Company, 190 Cal. 421,

213 P. 42 (1923), and the Louisiana cases of Wildblood v. Continental Insurance Co.,

182 La. 202, 161 So. 584 (1935), and Brooks v. Continetal Casualty Co., 13 La. App.

502, 128 So. 183 (1930), which are all relied on by defendant, involve accident

insurance and not liability insurance policies.          As discussed in Pendergraft v.

Commercial Standard Fire & Marine Co., 342 F.2d 427 (10th Cir. 1965), the cases

which construe accident insurance policies are not applicable to the issue before the

court in the present case. It is stated in Pendergraft

              all of those cases involve life or health and accident policies
              where the question was whether the injuries were accidental.
              That is not the issue here and for that reason we do not
              consider them controlling or persuasive when considered
              with reference to the interpretation of an indemnifying
              public liability policy, such as we have in this case.

342 F.2d at 429. In Pendergraft, the court held that a punch in the face was excluded


                                             26
from coverage under a homeowner’s insurance policy and said

             a provision in a policy excluding coverage as to intentional
             injuries is designed to prevent indemnifying one against loss
             from his own wrongful acts.
                                           ...
             the insured is not protected from the consequences of his
             own wilful and intentional wrongs … committed with the
             intent to inflict injury, although the actual bodily injury
             sustained may have been accidental.

Id.   That public policy would be defeated by allowing insurance for the injuries

sustained by Cabezas from the punch of Helms in the present case.

       Defendant’s brief ignores the more recent Louisiana cases which discuss

homeowner’s liability insurance, the exclusionary clause for acts intended or expected

to cause bodily injury and why a punch in the face is an intentional act excluded from

coverage. See Hooper v. State Farm Mutual Automobile Insurance Co., 782 So. 2d

1029, 1033 (La. App. 2001)(“An act is intentional when the actor consciously desires

the physical result of his act or knows that the result is substantially certain to follow

from his conduct”); Simpson v. Angel, 598 So. 2d 584, 585 (La. App. 1992)(‘the

punch was an act of will intended to inflict pain and/or injury on the victim in order that

he will desist from an offensive activity, real or imagined to the puncher”) and Cavalier

v. Suberville, 592 So. 2d 506, 507 (La. App. 1992)(punch deemed intentional where

insured testified his head was jumbled and “I guess I just threw my arm, and wherever

it landed is what happened.”).

       When one human being strikes another human being in the face, the majority rule

in the United States, as set out above, is that from the very nature of the act and the

harm which inheres in the conduct, the punch will be considered an intentional act for


                                            27
purposes of homeowner’s liability insurance.

                                           III.

               A RULING IN THIS CASE WOULD BE PREMATURE
             IF MADE BEFORE THE COURT OF APPEAL REVIEWS
                THE JUDGMENT FOR THE DEFENDANT IN THE
               UNDERLYING CASE AND WITHOUT THE ABILITY
              TO SEE THE EVIDENCE IN THE UNDERLYING CASE
             CONCERNING HELMS’ INTENT TO PUNCH CABEZAS

       The duty to defend is not at issue in this case as Florida Farm Bureau defended

Jason Helms in the underlying case. The only issue in the present case is the duty to

indemnify for any judgment Cabezas obtains against Helms.

       Unlike the duty to defend, the duty to indemnify is determined by the facts

established at the trial of the underlying case. See Aetna Insurance Company v. Waco

Scaffold & Shoring Company, Inc., 370 So. 2d 1149, 1151 (Fla 4th DCA 1978).

Because the duty to indemnify is determined by facts established at trial of the

underlying case, “questions regarding the duty to indemnify should be reserved until

the insured’s liability is determined.” Westmoreland v. Lumberman’s Mutual Casualty

Company, 704 So. 2d 176, 180 (Fla. 4th DCA 1997). The matter of mootness also

militates against deciding the duty to indemnify until after liability is determined in the

underlying case: if the judgment in the underlying case is for the insured, the issue of

indemnification is moot.

       Public policy considerations also suggest that a ruling in this case should await

a decision from the court of appeal in the underlying action. No court wants to act

irrationally or in utter disregard of known facts. That engenders disrespect for the

judiciary and the rule of law. It is known that Jason Helms testified at the trial of the


                                            28
underlying case concerning his intent to hit Israel Cabezas (See Motion to Stay

Proceedings and Exhibit 4 to the motion containing the testimony). This court cannot

consider that testimony, at present, because it is not part of the record on appeal, and

that testimony cannot be made part of the record on appeal by motion to supplement

the record, because the testimony was given after the trial court ruled in the present

case and was not before the court below. See Thornber v. City of Fort Walton

Beach, 534 So. 2d 754, 755 (Fla. 1st DCA 1988), for the holding that it is improper

to move to supplement the record on appeal with matters that were not presented to

the court below.

       This court is faced with the following dilemma: 1) it is asked to rule on the duty

of an insurer to indemnify under an insurance policy, 2) the duty to indemnify is

established by evidence presented at the trial of the underlying case, 3) there was

testimony at the trial of the underlying case directly related to the issue concerning the

duty to indemnify and 4) this court is required to ignore that controlling testimony due

to law governing the proper record on appeal. The court could rule in deliberate

disregard of the controlling testimony, but such a course would be irrational. No

reasonable jurist would want to hold that Helms did not intend to punch Cabezas

knowing well that Helms testified in the underlying case that he did intend to punch

Cabezas, especially in light of the rule that the determination should be made based on

the trial testimony that is being deliberately ignored.

       There is a simple solution to the dilemma. Review of the judgment for the

defendant in Cabezas v. Helms is presently before the Third District Court of Appeal

in Case No. 3D02-2649 (See Motion to Stay Proceedings and Exhibit 3 to the motion).

                                             29
Awaiting the outcome of that case would eliminate the problem set out above. If the

court of appeal affirms the judgment for the defendant in that case, then the instant

case becomes moot. If the court of appeal reverses, then Case No. 3D02-2649 can be

consolidated with the instant case so that this court can examine the evidence at the

trial of the underlying tort action.

                                       CONCLUSION

       For the reasons set out above, Florida Farm Bureau Casualty Insurance

Company asks that this court delay ruling in the present case until the Third District

Court of Appeal decides Case No. 3D02-2649. In the alternative, if this court decides

to proceed with a ruling in the present case before a decision in Case No. 3D02-2649,

plaintiff asks that the court affirm the ruling of the court of appeal below that Florida

Farm Bureau Insurance has no duty to indemnify Jason Helms for any judgment that

is obtained against him by Israel Cabezas for the punch in the face delivered by Helms

to Cabezas.

                              CERTIFICATE OF SERVICE

       We certify that a copy hereof has been furnished by mail this ______ day of

August, 2003 to Todd R. Schwartz, Esq., Ginsberg & Schwartz, P.A., Palm-Taft

Professional Center, Suite 208, 1601 North Palm Avenue, Pembroke Pines, FL 33026;

and Ratiner & Associates, P.A., 3225 Aviation Avenue, Suite 600, Miami, FL 33133.




                                           30
                       CERTIFICATE OF COMPLAINCE

      We certify that this brief complies with the font requirements of Fla. R. App.

P. 9.210(a)(2).

                                      Gaebe, Mullen, Antonelli, Esco
                                      & DiMatteo
                                      Attorneys for Respondent
                                      Florida Farm Bureau Casualty
                                      Insurance Company
                                      420 South Dixie Highway, Third Floor
                                      Coral Gables, Florida 33146
                                      Tel: 305-667-0223


                                      By_________________________
                                        Greg M. Gaebe
                                        Fla. Bar No. 137096
                                        Joel V. Lumer
                                        Fla. Bar No. 193300




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