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Shelter Insurance Cos. v. Smith

OPINION FILED APRIL 16, 1985.

SHELTER INSURANCE COMPANIES, PLAINTIFF-APPELLANT,

v.

MICHAEL ALLEN SMITH ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County; the Hon. William Johnson, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Shelter Insurance Companies, plaintiff, appeals from a judgment of the circuit court of Madison County declaring that a policy issued by plaintiff afforded coverage in connection with an accident in which the insured, Michael Smith, punched Kerry Dioneda several times. For the reasons which follow, we reverse the judgment of the circuit court.

The record establishes that plaintiff issued a homeowner's policy to Jack H. Smith and Mary B. Smith, and that Michael Smith was an insured under the terms of this policy. The policy contains the following exclusion:

"This policy does not apply:

1. Under Coverage E-Personal Liability and Coverage F-Medical Payment to Others:

f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured."

During the trial of this matter, Michael Smith testified that on November 19, 1981, he was driving his car in Granite City when an automobile driven by Kerry Dioneda pulled into his lane of traffic and cut him off. Smith testified that he became angry, made an obscene gesture at Dioneda, whom he did not know, and pulled his vehicle up beside Dioneda's at a stoplight. Smith then pointed to a nearby parking lot, and both he and Dioneda pulled their vehicles into that lot. Smith's girlfriend was with him in the car, and Dioneda's brother Randy was in the Dioneda vehicle with Kerry. After stopping in the parking lot, Smith got out of his car and went to the driver's side of the Dioneda vehicle. After an exchange of words between the two men, Smith hit Kerry Dioneda. Smith described his actions as follows:

"Q. He [Dioneda] never hit you with his hands or with his fist, did he, sir?

A. No, I blocked a few punches though.

Q. After you had struck him several times, isn't that correct, sir?

A. Would you repeat the question, please?

Q. When you say you blocked punches, only after you had struck him several times; isn't that correct, sir?

A. I don't believe so.

Q. It was after you had struck him at least one time, isn't that correct?

A. Yes, yes, at least one time.

Q. You did make the first blow by smashing him in the face with your fist?

A. Yes, I was defending myself.

Q. (By Mr. Kopis) Now, when you struck Mr. Kerry Dioneda in the face, you did it with ...


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