Tanner v. Nationwide Mutual Fire Ins. Co., No. 07-0760 (Tex. Apr. 21, 2009)(insurance
coverage dispute, intentional injury exclusion)         
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. [pdf]
View Electronic Briefs | Listen to Oral Argument [16.9 mb mp3]
Tanner v. Nationwide Mutual Fire Ins. Co. (Tex. 2009)
Argued October 14, 2008

  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.

  Justice Brister filed a dissenting opinion.

  A high-speed police chase resulting in a traffic accident sparked a personal-injury lawsuit against the
fleeing driver by the family injured in the crash. This related insurance-coverage dispute asks whether
the driver’s attempts to elude police forfeit coverage under an intentional-injury exclusion in his
automobile liability insurance policy. We hold that the insurer did not establish as a matter of law that
its insured intentionally caused the family’s injuries. The exclusion requires intentional damage, not just
intentional conduct. We therefore render judgment on the jury’s verdict in favor of the injured family.

I. Background

  Richard Gibbons was driving his pickup truck on Interstate 35 south of San Marcos when he was
pulled over by a Texas state trooper. Gibbons initially stopped but then fled, with the trooper in hot
pursuit chasing him into San Marcos. There, three local police officers responded and continued the
pursuit. Gibbons exited the interstate and raced through the city, winding his way through urban and
residential areas of San Marcos at speeds in excess of eighty miles per hour.

  Gibbons left San Marcos on Highway 80 and entered a rural area, topping 100 miles per hour and
swerving into oncoming traffic to pass slower vehicles. He drove off the road and through a freshly
plowed cornfield, then turned around and headed back towards San Marcos on a road running parallel
to Highway 80. One San Marcos police officer tried to block the road with her cruiser, but Gibbons
veered off the road and went around her.

  Gibbons continued and approached the intersection with Old Bastrop Road in a rural area that,
according to trial testimony, “does not have businesses or houses or anything,” but rather consists of
“open fields, corn fields.” Gibbons reached the intersection at the same time as a car carrying the
Tanner family, who had the right-of-way. Gibbons slammed on his brakes but could not avoid the
collision. All four Tanners suffered injuries, but seven-year-old Roney’s were the most serious, as he
was sitting where Gibbons’ truck struck the car.[1] Gibbons fled the accident scene, doubling back and
eventually driving into yet another field. Determined to end the chase, an officer shot out two of the
truck’s tires. Officers forcibly removed Gibbons from his truck and placed him under arrest.

  The Tanners sued Gibbons and obtained a default judgment.[2] Gibbons’ insurer, Nationwide Mutual
Fire Insurance Company, refused to pay damages and filed this declaratory-judgment action, arguing
the intentional-injury exclusion barred coverage for the Tanners’ claims. The jury disagreed, finding
that Gibbons did not intentionally cause the Tanners’ injuries. The trial court granted Nationwide’s
motion for judgment notwithstanding the verdict, and the court of appeals affirmed, “because, as a
matter of law, the intentional-acts exclusion in Gibbons’ liability policy excluded any coverage for the
Tanners’ claims.”[3]

II. Discussion

A. Standard of Review

  We review a JNOV under a no-evidence standard,[4] meaning we “credit evidence favoring the jury
verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.”
[5] We will uphold the jury’s finding if more than a scintilla of competent evidence supports it.[6] “The
final test for legal sufficiency must always be whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under review.”[7] Thus, to merit the trial court’s JNOV,
Nationwide was required to show that the evidence conclusively proved that Gibbons intentionally
injured the Tanners and that no reasonable jury was free to think otherwise.

B. The Policy’s Express Terms Decide This Case

  Since insurance policies are contracts, we construe them using ordinary rules of contract
interpretation.[8] Our cardinal concern is determining the parties’ intent as reflected in the terms of the
policy itself.[9] Accordingly, we give policy language its plain, ordinary meaning unless something else
in the policy shows the parties intended a different, technical meaning.[10]

  Nationwide contends that when Gibbons fled police, he voided coverage under the policy’s
intentional-injury exclusion, which withholds coverage for:

Property 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.

1. “Property damage or bodily injury caused intentionally . . .”

  We have not construed this precise policy language before.[11] At the outset, however, we
emphasize this critical point: “intentionally” as used in the exclusion speaks to the resulting damage or
injury, not to the actions that led to it. That is, the language is effect-focused and not cause-focused,
voiding coverage when the resulting injury was intentional, not merely when the insured’s conduct was

  A contrary reading of the exclusion—that reckless acts absent deliberate injury are sufficient to forfeit
coverage—“would render insurance coverage illusory for many of the things for which insureds
commonly purchase insurance.”[12] For example, Texas mandates liability coverage for drivers,[13] but
if ordinary Texans are unprotected from those who intentionally speed or run red lights, but intend no
harm to others by doing so, then Texas is replete with noncoverage notwithstanding its mandatory-
coverage requirement. As one leading commentator puts it, coverage can still exist “when the injury
was unintended, even if the act which gave rise to the injury was intentional.”[14]

  We construed similar language in State Farm Fire & Casualty Co. v. S.S.[15] In that case, a summary-
judgment appeal, the plaintiff in an underlying suit claimed she contracted a sexually transmitted
disease from the insured.[16] The insured’s homeowner’s policy contained an intentional-injury
exclusion applicable “to bodily injury or property damage caused intentionally by or at the direction of
the Insured.”[17] The insurer contested coverage based on this exclusion.[18] In deciding what
“intentionally” meant in the exclusion, we drew guidance from the Restatement (Second) of Torts and a
leading treatise.[19] Reading the exclusion under these authorities, we reasoned that an insured
intends to cause harm if he intends or desires the consequences of his act or believes the
consequences are substantially certain to occur.[20] Accordingly, we held that although the insured
intentionally had sexual relations with the plaintiff without informing her of his condition, this conduct did
not establish as a matter of law that he intended to give her an STD or knew that transmission was
substantially certain to follow.[21]

  A similar analysis applies to the Nationwide policy, which, like the policy in S.S., excludes coverage
where the injury is “caused intentionally” by the insured. The evidence at trial does not indicate, as the
jury charge puts it, that “the property damage or bodily injury to the Tanners was caused intentionally,”
much less indicate such intent as a matter of law. On the contrary, Gibbons slammed on his brakes
hard enough to skid before impact, showing he actively tried to avoid the collision. The insured in S.S.
only hoped to avoid causing harm while Gibbons actually, if belatedly, tried to avoid causing harm.

  Nor does the evidence establish as a matter of law that Gibbons believed his conduct was
substantially certain to injure the Tanners. While leading police on a protracted high-speed chase is
not merely reckless but reprehensible, we cannot say on this record that no reasonable juror could
resist finding that injury to others was unavoidable. In fact, the chase could have ended in any number
of ways: with Gibbons rolling his vehicle, with Gibbons hitting a fixed object, with officers using
preventive techniques to stop Gibbons’ vehicle, or even with officers discontinuing the pursuit, rather
than with Gibbons crashing into the Tanners. Nationwide therefore did not establish as a matter of law
that the Tanners’ injuries were “caused intentionally” under the exclusion.

2. “. . . willful acts the result of which the insured knows

or ought to know will follow . . . .”

  Nationwide’s policy exclusion has additional language excluding coverage for “willful acts the result of
which the insured knows or ought to know will follow.” Insofar as this passage also focuses on whether
the insured intended the injurious result, the language reinforces the view that the dispositive inquiry is
whether the insured intended to inflict damage or injury. To forfeit coverage, the insured must intend to
harm, not merely intend to act.

  This part of Nationwide’s exclusion also denies coverage if the insured “ought to know” that injury will
result. This language might be read as stating an alternative objective test,[22] excluding coverage not
only where the insured subjectively knew that injury would follow, but also where a reasonable person
would know that injury would follow.

  However, this objective ground for denying coverage does not alter the unequivocal “will follow”
language that completes the sentence. The clause requires that the insured “ought to know” that the
resulting injury “will follow,” not “might follow” or “will likely follow” or anything else. “Will” is “used to
express inevitability.”[23] Tracking precisely the language of the exclusion, the jury charge—to which
Nationwide did not object—asked whether “the property damage or bodily injury to the Tanners was
caused intentionally by or at the direction of [Gibbons], including willful acts the result of which
[Gibbons] knows or ought to know would follow from his conduct.”

  Under the evidence presented at trial, a reasonable and fair-minded jury would not be compelled to
find, under an objective standard, that a reasonable person would know that injury to third parties
would result from Gibbons’ conduct. Such a jury finding was no more required by the evidence than a
finding, under a subjective standard, that Gibbons personally knew that such injury would result.
Hence, we part company with the dissent on the effect of the “ought to know” language of the
exclusion, and cannot say a reasonable jury in this case would necessarily find that Gibbons ought to
have known that injury would result from his conduct, as indisputably reckless as it was. Put simply, the
injury was not so inevitable that we can say as a matter of law it was intended.

  Nationwide relies on Nationwide Mutual Insurance Co. v. Finkley,[24] an Ohio intermediate appeals
court decision that construed the same policy exclusion and concluded “no coverage.” We find Finkley
unpersuasive as it misapplies the policy exclusion. Although Finkley describes a Texas-like standard
that would bar coverage where the insured’s conduct is “substantially certain to result in injury,”[25]
Finkley actually applies a different standard, opining that “[a]ny reasonable person would know, or
should know, that such actions [of the driver] would probably lead to serious injury.”[26] In our view,
this reading departs from the controlling policy language. The exclusion does not apply whenever a
reasonable person would or should know that his actions “would probably lead” to injury; the policy
imposes a stricter test, that the driver ought to know that injury “will follow” from his conduct.

  We understand the appeal of a broader exclusion that would withhold coverage for, as Nationwide’s
predecessor policy put it, “willful acts which can be reasonably expected to result in damage or injury.”
But Nationwide replaced that test with the more restrictive version that controls today’s case. We must
construe the policy as written, not as we might have written it nor as Nationwide once wrote it. Given
the clarity of the exclusion and the jury charge, which mirrors the exclusion virtually verbatim, we
cannot conclude jurors disregarded the policy and the evidence in reaching their verdict, much less
conclude they were obliged to reach the opposite result.

III. Conclusion

  Because Nationwide did not establish as a matter of law that Gibbons intentionally caused the
Tanners’ injuries, the jury’s verdict must stand. Accordingly, we reverse the court of appeals’ judgment
and render judgment on the jury verdict.

                                                              Don R. Willett


OPINION DELIVERED: April 17, 2009.

[1] Roney spent over a month in the hospital (a week of that comatose) and five years in physical

[2] Gibbons was jailed and charged with eight felonies: four counts of aggravated assault and four
counts of failure to stop and render aid. He posted $10,000 bail and vanished, failing to appear at his
2001 trial. He was last seen in his hometown of Akron, Ohio.

[3] 232 S.W.3d 330, 335.

[4] City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).

[5] Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007).

[6] Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (per curiam).

[7] City of Keller, 168 S.W.3d at 827.

[8] Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 202 (Tex. 2004).

[9] Id.

[10] See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Crocker, 246 S.W.3d 603, 606 (Tex. 2008);
Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990).

[11] Although the policy in this case is from Ohio, the standard Texas Personal Automobile Policy
promulgated by the Texas Department of Insurance (but subject to approved variations) has a similar
liability exclusion for an insured “[w]ho intentionally causes bodily injury or property damage.” While this
language is congruous to the first half of the exclusion in this case, the Texas exclusion does not have
the “including willful acts the result of which the insured knows or ought to know will follow from the
insured’s conduct” addition. Notably, the standard Texas policy has an exclusion under the Personal
Injury Protection Coverage for “bodily injury sustained . . . [b]y that person while attempting to elude
arrest by a law enforcement official” but does not have that same exclusion under the Liability

[12] Trinity Universal Life Ins. Co. v. Cowan, 945 S.W.2d 819, 828 (Tex. 1997) (holding that insured’s
intentional conduct can nevertheless be an “accident” under homeowner’s policy if the injury was not
intended); see State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 377 (Tex. 1993) (noting that the
same reasoning applicable to construing the policy term “accidents” is applicable to construing an
intentional-injury exclusion).

[13] Tex. Transp. Code § 601.051.

[14] Couch on Insurance 3d 119:8 (2005).

[15] 858 S.W.2d 374 (Tex. 1993).

[16] Id. at 375.

[17] Id. at 377 (alterations omitted).

[18] Id. at 375.

[19] Id. at 378.

[20] Id. (citing Restatement (Second) of Torts § 8A (1965) and W. Page Keeton et al., Prosser &
Keeton on the Law of Torts § 8, at 35-36 (5th ed. 1984)). We quoted this passage:

[I]ntent is broader than a desire or purpose to bring about physical results. It extends not only to those
consequences which are desired, but also to those which the actor believes are substantially certain to
follow from what the actor does . . . . On the other hand, the mere knowledge and appreciation of a risk-
something short of substantial certainly-is not intent. The defendant who acts in the belief or
consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if
the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional
wrong. In such cases the distinction between intent and negligence obviously is a matter of degree.
The line has been drawn by the courts at the point where the known danger ceases to be only a
foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a
substantial certainty.
Id. (quoting Keeton et al., supra, at 35-36).

[21] S.S., 858 S.W.2d at 378.

[22] See Nationwide Mut. Ins. Co. v. Jones, No. Civ. JFM-05-2792, 2006 WL 361336, at *3 n.3 (D. Md.
Feb. 15, 2006) (noting that “ought to know” language in identical Nationwide policy exclusion suggests
an objective rather than a subjective analysis).

[23] Webster’s Third New International Dictionary 2617 (2002).

[24] 679 N.E.2d 1189 (Ohio Ct. App. 1996).

[25] Id. at 1190-91.

[26] Id. at 1190. Given the facts of Finkley, the Ohio court’s no-coverage conclusion is understandable
under a looser “would probably lead” test. Finkley involved an unlicensed teenager who crashed in an
urban area, not, as in our case, a licensed adult who crashed in a rural area. Moreover, unlike our
case, Finkley includes no evidence regarding the driver’s subjective intent to avoid causing injury.