Brister Dissent in

Tanner v. Nationwide Mutual Fire Ins. Co., No. 07-0760 (Tex. Apr. 21, 2009)(insurance
coverage dispute, intentional injury exclusion)         
CHILDREN v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY; from Caldwell County; 11th district (11-05-
00371-CV, 232 SW3d 330, 08-09-07)         
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill,
Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined. [pdf]
Justice Brister delivered a dissenting opinion.

Brister Dissent in Tanner v. Nationwide Mutual Fire Ins. Co. (Tex. 2009)
(Brister, Dissenting)

Argued October 14, 2008

Justice Brister filed a dissenting opinion.

Anyone who drives a huge 4-ton pickup at 100 miles an hour through city streets during rush hour “ought to know”
that someone is going to get hurt. This insurance policy excluded such conduct, so the judges of the trial court
and court of appeals correctly denied coverage. Because the Court holds otherwise, I respectfully dissent.

There will never be a more extreme case than this. After being pulled over by a state trooper around 5 p.m. on
Interstate 35 in San Marcos, Richard Gibbons took off in his Ford F-350 heavy-duty truck, with the trooper and then
several local police cars in hot pursuit. Gibbons cut through residential neighborhoods at more than 80 miles an
hour, careening around corners and running through yield and stop signs. Turning onto Highway 80, he hit
speeds above 100 miles an hour, swerving head-on into oncoming traffic to pass, cutting across open fields, and
driving around a police roadblock. Ultimately he smashed into the Tanners’ car at an intersection, which slowed
him down only for a moment. He was finally stopped when police shot out half of the truck’s six tires. Charged with
eight felony counts, Gibbons was released on $10,000 bail; true to form, he fled and has never been prosecuted.

The $300,000 auto liability policy issued to Gibbons excluded “[p]roperty damage or bodily injury caused
intentionally by or at the direction of an insured, including willful acts the result of which the insured knows or
ought to know will follow from the insured’s conduct.” “Ordinarily,” we have said, “whether an insured intended
harm or injury to result from an intentional act is a question of fact.”[1] But “ordinarily” means that in some extreme
cases it is not a question of fact, but a question of law. “Ought to know” is an objective standard, so there must be
some outer boundaries beyond which an insured’s conduct is either so harmless or so reckless that no fact
question is presented.

Texas courts have apparently not addressed whether a high-speed police chase falls within the intentional-acts
exclusion. But this Ohio insurance policy was issued to Gibbons in Ohio, and Ohio courts have. “[W]here an
insured willfully and purposefully attempts to elude police in an automobile chase through an urban area in
reckless disregard of traffic control devices, his actions are substantially certain to result in injury.”[2] This is both
sensible and consistent with Texas law, which applies an intentional-injury exclusion if an insured “intends the
consequences of his act, or believes that they are substantially certain to follow.”[3]

The Court’s main mistake is in viewing this accident far more narrowly than the policy does. The Court says the
exclusion requires “intentional damage, not just intentional conduct,” but the exclusion applies even if he did not
intend damage but “ought to know [it] will follow from [his] conduct.” The Court requires proof that the insured
“intentionally injured the Tanners,” but the exclusion does not require that an insured know precisely who or what
he would hit. The Court says reasonable jurors could conclude the chase could have ended with Gibbons “rolling
his vehicle” or “hitting a fixed object,” but either would still be the kind of property damage he ought to have known
would follow. The Court says Gibbons ought to have known the police might “discontinu[e] the pursuit,” though it is
a mystery why an objective, reasonable-person standard would include such an unreasonable hope. The Court
focuses narrowly on the rural area of “open fields, corn fields” where an accident finally occurred, forgetting all of
Gibbons’ willful acts on I-35, Highway 80, and the residential areas through which this high-speed police chase
passed. And the Court emphasizes that Gibbons applied his brakes before the collision, even though someone
driving a truck this big this fast in these circumstances ought to know an accident would follow even if he tried to
avoid it at the last second. In sum, the Court avoids this policy exclusion by focusing narrowly on what Gibbons
knew a split second before this precise crash.[4]

The rest of the Court’s opinion consists largely of red herrings and straw men:

*                    the insurer did not object to the jury charge, but there was no reason to do so as the charge merely
quoted the policy;

*                    the current policy exclusion is more restrictive than a former one, but the circumstances here meet
either; and

*                    Texans need coverage from drivers who “intentionally speed or run red lights,” but Gibbons did a lot
more than run a red light.

It should not be debatable whether an insured “ought to know” that harm would follow from this kind of outrageous
driving. The police certainly thought so, breaking off the chase in a residential area because it was too dangerous,
and shooting at the truck (an act requiring supervisory approval) because the officers “felt like we needed to end it
before anyone else was injured.” The Tanners’ attorney also thought so, conceding in his opening statement that
accidents like this one “happen[] all the time when people run from police.” Indeed, the most surprising thing on
this record is not that there was an accident, but that someone wasn’t killed. If the Court “cannot say on this
record” that Gibbons ought to have known damage would follow his conduct, then courts can never say it. As a
result, this explicit exclusion does not mean what it says, but whatever jurors decide they want it to say.

Not surprisingly, that is precisely what the Tanners’ counsel urged jurors to do. In his opening, he summarized
the issue for trial as follows: “Does Nationwide have a technicality in this document buried in one sentence of one
page that somehow lets them off the hook or not?” Exclusions, of course, are not technicalities C they are part of
the contract. Jurors may naturally tend to favor a victimized family rather than a big insurance company, but judges
exist to make sure contracts mean what they say, no matter whom the judges or jurors want to win.

If insurers must pay for intentional, criminal acts by policyholders like Gibbons, they will have to charge everyone
higher premiums. As a result, some drivers will simply do without insurance. Ignoring the policy terms in this case
may seem compassionate, but in the long run it may prove otherwise.

By any measure, an insured like Gibbons “ought to know” that driving like he did would hurt someone or
something sooner or later. As his insurer did not agree to pay for that kind of intentional conduct, I would affirm the
courts below.


Scott Brister



[1] State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 378 (Tex. 1993).

[2] Nationwide Mut. Ins. Co. v. Finkley, 679 N.E.2d 1189, 1191 (Oh. Ct. App. 1996).

[3] S.S., 858 S.W.2d at 378 (citing Restatement (Second) of Torts § 8A (1965)).

[4] See City of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex. 2005) (“[I]f evidence may be legally sufficient in one
context but insufficient in another, the context cannot be disregarded even if that means rendering judgment
contrary to the jury’s verdict.”).