Is the Tide Changing?

By Wayne C. Fricke; Jan 2000

     Earlier this year, the Court of Appeals ruled against our position in an insurance coverage issue, holding that an exclusionary clause in an Allstate Insurance policy excludes intentional acts, including intentional acts that were done in the context of self-defense.  See Allstate v. Bauer, 96 Wn.App. 11, 977 P.2d 617 (1999).  This civil case arose after our client was sued by the estate of the deceased following our client’s acquittal of manslaughter charges in Kitsap County Superior Court a couple of years ago.  As part of the criminal case, the jury found that the defense proved that Mr. Bauer’s actions were done in self-defense.

     The Court of Appeals relied on an earlier Washington Supreme Court case of Grange Insurance Co. v. Brosseau, 113 Wn.2d 91, 776 P.2d 123 (1989).  After this decision, we petitioned to the Supreme Court for review of this matter based in part on the fact that Bauer’s case was factually different from Brosseau.  Additionally, we requested that the Supreme Court reconsider Brosseau  and overrule it as it was against public policy.  The case was set for review in the November term and we were notified that it had been decided that the entire court would consider whether the petition would be accepted or denied. 

     The court then heard the case en banc to determine if it was going to be accepted for review and the final decision indicated that the case was “not accepted” for review.  This is the first time I’ve been involved in a case where, rather than being denied, it has been deemed “not accepted.” 

     It is my understanding that at the time of the en banc review there were only eight Justices in the Washington Supreme Court.   Consequently, when it came for the vote on accepting the Petition for Review there was a tie of 4-4 and thus the court could not say it was denied. 

     The importance of this case not being accepted, as opposed to being denied, is fairly obvious.  It appears that four Justices were willing to consider the issues, including whether its prior decision should be reversed.  Since that time, another Justice has been appointed and hopefully, there are now five members of the court who would now reconsider Brosseau and Bauer.  Thus, all of those individuals who may be facing coverage issues in the future as it relates to intentional acts under self-defense should not necessarily be disheartened by Bauer or Brosseau.  Although those cases are still law at this time, it may be that there is hope to suggest that the Supreme Court may reconsider its earlier decision.  The court may find that exclusionary clauses that exclude intentional acts may not apply in the future to those of us who are forced to defend ourselves and are subsequently sued. 

     Ironically, on the very day that this decision issued, the attorneys for the plaintiffs in our case had contacted us and indicated that they wanted to drop the case.  Therefore, our client was not prejudiced as a result of this case not being accepted.