N.M. ex rel. her son Caleb v. Daniel E.

2008 UT 1
AMENDED OPINION
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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N.M. on behalf of her son Caleb, No. 20060284
Plaintiff and Appellant,
v.
Daniel E. and Safeco Property F I L E D
& Casualty Insurance Companies,
Defendants and Appellees. January 8, 2008
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Third District, Salt Lake
The Honorable Anthony B. Quinn
No. 050903375
Attorneys: Nelson Abbott, Provo, for plaintiff
Robert L. Janicki, Joseph E. Minnock, Sara N. Becker,
Salt Lake City, for defendants
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PARRISH, Justice:
INTRODUCTION
¶1 Daniel swung a hockey stick at Caleb, striking him in
the head and causing serious injuries. The question before us is
whether the district court properly concluded in a summary
judgment adjudication that this event was not an accident for the
purposes of insurance coverage. We reverse the district court
and hold that summary judgment was improper.
BACKGROUND
¶2 During the first three days of a hockey camp, seven-
year-old Caleb and some of the other boys teased eight-year-old
Daniel for being an inferior hockey player. On the third day of
the camp, Daniel reacted violently to the verbal jabs of his
peers. While in the locker room suiting up for practice, Caleb
and two other boys began to tease Daniel again. Daniel responded
by swinging his hockey stick at Caleb, who was wearing a full set

1 Although the policy was issued by Safeco Insurance Company
of America, Caleb’s representatives named an affiliated company,
Safeco Property & Casualty Insurance Companies, as a defendant.
In a cryptic footnote to its motion for summary judgment, this
defendant appears to have waived any claim related to the
discrepancy. Because this issue was not raised by either party
on appeal, we likewise gloss over the inconsistency and refer to
this defendant throughout this opinion simply as “Safeco.”
2 The Safeco policy also has a provision that excludes
coverage for damage “expected or intended by any insured or which
is the foreseeable result of an act or omission intended by any
insured.” Although this language obviously touches upon issues
similar to those addressed in this opinion, because this clause
was neither addressed in the district court’s order granting
summary judgment nor raised by Safeco, we make no determination
regarding the effects of this language.
No. 20060284 2
of hockey pads but was not wearing his helmet. Daniel testified
in his deposition that he was aiming the blow at Caleb’s
protected shoulder area and that he had no intention of hurting
him. Instead, Daniel’s stick struck Caleb in the head, causing
serious injuries that required hospitalization and brain surgery.
¶3 Daniel was covered by a homeowner’s insurance policy
issued by Safeco Insurance Company of America (“Safeco”).1 This
policy indemnified Daniel against liability for “damages because
of bodily injury or property damage caused by an occurrence.”
The policy defined an “occurrence” as “an accident, including
exposure to conditions which result in: bodily injury; or
property damage.”
¶4 Caleb filed a claim against the policy for his
injuries, but Safeco denied coverage. Caleb then filed suit
against Safeco, seeking a declaratory judgment that Safeco must
provide coverage to Daniel for any legal liability arising out of
the incident. Safeco filed a motion for summary judgment,
asserting that it had no liability because the incident was not
an “accident” under the terms of the policy.2 The district court
agreed and entered summary judgment in favor of Safeco. We now
review the district court’s ruling and reverse.
STANDARD OF REVIEW
¶5 A district court shall enter summary judgment if “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that

3 No. 20060284
the moving party is entitled to a judgment as a matter of law.”
Utah R. Civ. P. 56(c). Thus, in reviewing a district court’s
grant of summary judgment, an appellate court “view[s] the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party,” Sur. Underwriters v. E & C
Trucking, Inc., 2000 UT 71, ¶ 15, 10 P.3d 338, and cedes no
deference to the lower court’s legal conclusions, Swan Creek
Vill. Homeowners Ass’n v. Warne, 2006 UT 22, ¶ 16, 134 P.3d 1122.
ANALYSIS
¶6 Safeco’s duty to indemnify Daniel is determined by the
terms of the insurance policy covering him. See Fire Ins. Exch.
v. Estate of Therkelsen, 2001 UT 48, ¶ 14, 27 P.3d 555. The
policy covers events deemed to be accidents. Although the policy
itself does not define the term “accident,” Utah case law has
consistently defined this term in insurance policies:
The word [accident] is descriptive of means
which produce effects which are not their
natural and probable consequences. . . . The
probable consequence of the use of given
means is the consequence which is more likely
to follow from their use than it is to fail
to follow. An effect which is the natural
and probable consequence of an act or course
of action is not an accident, nor is it
produced by accidental means. It is either
the result of actual design, or it falls
under the maxim that every man must be held
to intend the natural and probable
consequence of his deeds.
Richards v. Standard Accident Ins. Co., 200 P. 1017, 1023 (Utah
1921) (internal quotation marks omitted); see also Therkelsen,
2001 UT 48, ¶ 15; Nova Cas. Co. v. Able Constr., Inc., 1999 UT
69, ¶ 13, 983 P.2d 575; Hoffman v. Life Ins. Co. of N. Am., 669
P.2d 410, 416-17 (Utah 1983); Thompson v. Am. Cas. Co., 439 P.2d
276, 278 (Utah 1968); Handley v. Mut. Life Ins. Co., 147 P.2d
319, 322-23 (Utah 1944); Sanders v. Metro. Life Ins. Co., 138
P.2d 239, 242-43 (Utah 1943).
¶7 There are thus two independent methods by which bodily
injury or property damage may be deemed nonaccidental. First,
harm or damage is not accidental if it is the result of actual
design or intended by the insured. Second, harm or damage is not
accidental if it is the natural and probable consequence of the

3 Litigation in this area has almost exclusively focused on
the natural and probable consequence test. This is
understandable because if an insured intended the harm, it would
almost always be the natural and probable consequence of the
insured’s action. Theoretically, however, there are situations
in which the resultant harm is not the natural and probable
consequence of an act, but the harm is nevertheless not
accidental because the insured intended it. For example, if an
unskilled marksman were to shoot a single bullet at a distant
individual with the intent of killing her, that individual’s
injury or death may not be the natural and probable consequence
of the insured’s act. But if the shooter were to strike the
intended target, the harm would not be an accident because the
shooter intended the harm, even though the likelihood of success
was improbable.
No. 20060284 4
insured’s act or should have been expected by the insured.3 The
first category presents a factual question as to what the insured
intended. The second category generally presents a legal
question as to what the average individual would expect to happen
under the circumstances. See Hoffman, 669 P.2d at 419.
¶8 The parties have raised several legal issues regarding
the application of these two tests. We first resolve these legal
issues and then proceed to apply these two tests in our review of
the summary judgment proceeding.
¶9 The first legal question raised by the parties is
whether Daniel’s age is relevant in determining if Caleb’s injury
was the natural and probable consequence of Daniel’s swinging his
hockey stick. We hold that it is relevant. The question of
whether harm is the natural and probable consequence of an act is
determined from the perspective of the insured. Id. at 416;
Allstate Ins. Co. v. Patterson, 904 F. Supp. 1270, 1277 (D. Utah
1995). In determining what is natural and probable from the
insured’s perspective, “[e]ach individual may be considered the
average individual unless the facts disclose that in reality he
is not; and when the facts do so show, then the question of the
accidental nature of the result must be measured by this
knowledge.” Hoffman, 669 P.2d at 419 (internal quotation marks
omitted). In short, we apply “an objective test unless the
evidence shows that the insured is not an ‘average individual.’”
Id. Because eight-year-old children lack the experience,
maturity, and reasoning skills of adults, Daniel was clearly not
an average individual at the time of the incident. We therefore

4 Because there is no evidence that Daniel had a mental
health condition that impaired his ability to gauge the
consequences of his actions, we view the question of what Daniel
anticipated to be the natural and probable consequences of his
act from the point of view of an average eight-year-old. Thus,
the question remains essentially objective and therefore legal in
nature, rather than a subjective, factual question as to what
Daniel, as an individual, expected to happen.
5 No. 20060284
determine the natural and probable consequence of Daniel’s
actions from the perspective of an average eight-year-old child.4
¶10 We next resolve the question of whether we focus on the
actions of the tortfeasor or the resulting injury as being
accidental in nature. According to this court’s clear precedent,
we focus on the accidental nature of the injury. Safeco,
however, relies upon two cases from the court of appeals for the
proposition that we should focus on the accidental nature of the
act giving rise to the injury. In State Farm Fire & Casualty Co.
v. Geary, 869 P.2d 952, 955 (Utah Ct. App. 1994), the court of
appeals, in examining whether an injury resulting from a shotgun
blast was caused by an accident, stated:
Seemingly, the resolution of this
“occurrence” issue hinges on whether we focus
on either the shooting or the injury as
accidental or intentional. For the reasons
explained below, we are persuaded by the case
law which focuses on either the accidental or
intentional nature of the shooting, rather
than the ensuing injury.
In support of this proposition, the court quoted a decision of
the Washington Court of Appeals, which stated that “‘[an]
accident is never present when a deliberate act is performed,
unless some additional, unexpected, independent, and unforeseen
happening occurs which produces or brings about the result of
injury or death.’” Id. (emphasis omitted) (quoting Safeco Ins.
Co. of Am. v. Dotts, 685 P.2d 632, 633-34 (Wash. Ct. App. 1984)).
Later, in Fire Insurance Exchange v. Rosenberg, 930 P.2d 1202,
1203 (Utah Ct. App. 1997), the court of appeals examined whether
tossing a lit cherry bomb onto the property of another had
produced an accident. Following its own precedent from Geary and
once again quoting language from the Washington Court of Appeals,
the court held that the injury in question was not accidental
because it was a foreseeable result of the deliberate act of
throwing the cherry bomb. Id. at 1205.

5 We do not wish to imply, however, that the application of
the correct legal standard in those two cases would have yielded
a different result. Rather, we express no opinion on that
subject.
6 For example, we generally consider the motorist who
collides with another vehicle due to excessive speed to have been
involved in an accident. Inherent in our characterization of the
incident as an accident is the recognition that while the
motorist did intend to exceed the speed limit, he did not intend
to cause a collision. In other words, we focus on whether the
resulting collision was intended or expected, rather than on
whether the underlying act of speeding was intentional.
7 If foreseeability were the measure of what constitutes an
accident, then Safeco and other insurers with similar policies
would never have a duty to indemnify policy holders, rendering
coverage completely illusory. Under traditional notions of tort
law, individuals are liable for only the foreseeable harm of
their negligent acts. Therefore, if an injury is unforeseeable,
the insured would not be liable and the insurer would have no
duty to indemnify. If, on the other hand, an injury is
foreseeable, the insurer could avoid the duty to indemnify by
asserting that the injury was not an accident.
No. 20060284 6
¶11 We reject the approach taken by the Utah Court of
Appeals in these two cases because it conflicts with this court’s
clear precedent.5 First, we have clearly held that we do not
examine whether an act is intentional or deliberate, but rather
whether the result was intended or expected: “This court has
definitely gone on record as construing the [“accidental means”
provision] and equivalent provisions as reaching cases where the
death or disablement is the unexpected result, intended acts
making the result itself, rather than the means, the accident.”
Handley, 147 P.2d at 322. Even if an act is not accidental but
intended, it may result in an accident if “the result was
unexpected [and] unanticipated.”6 Id.; accord Kellogg v. Cal. W.
States Life Ins. Co., 201 P.2d 949, 951 (Utah 1949) (“[I]f death
is an unexpected result of an intended act it is to be considered
accidental.”); Richards, 200 P. at 1023. Second, the language
adopted by the Utah Court of Appeals from the Washington Court of
Appeals improperly introduces the concept of foreseeability to
the definition of “accident.” Rosenberg, 930 P.2d at 1205
(erroneously holding that the resulting injury need only “fall
within the spectrum of foreseeability”). We have clearly held
that “the test is not whether the result was foreseeable, but
whether it was expected.”7 Hoffman, 669 P.2d at 416.

8 For example, in Dotts, 685 P.2d at 632, a man lapsed into
a coma and died several hours after receiving an open-handed slap
to the face that left no mark upon him. This scenario is an
example of a situation where the injury actually suffered was so
disproportionate to any reasonably anticipated injury that the
incident would be categorized as an accident.
9 We recognize that self-serving testimony as to what an
(continued...)
7 No. 20060284
¶12 Having determined that we look to whether the injury,
rather than the act giving rise to the injury, is accidental, we
turn to the related question of what degree of harm must be
intended or expected in order for an event to be deemed
nonaccidental. Daniel argues that someone of his tender age
could not have expected that the act of swinging the hockey stick
would result in a skull fracture and serious brain injuries. He
contends that because the degree of injury was unintended and
unanticipated, the harm was accidental in nature. We disagree.
Although we look to whether the injury in general is accidental,
we concur with the New Hampshire Supreme Court that the specific
type of injury suffered need not be intended or expected by the
insured. Vt. Mut. Ins. Co. v. Malcolm, 517 A.2d 800, 803 (N.H.
1986). As Justice Souter analogized, intentionally striking a
pedestrian with a car is “so inherently injurious that the
collision would not be regarded as an [accident] even if the
insured did not actually intend to break any bones.” Id. As
long as some sort of injury was intended or expected, the actual
injury suffered is not accidental even if the actual injury
differs in nature or degree from what might have been reasonably
anticipated. Only where the injury suffered is completely
disproportionate to the injury intended or reasonably expected
would the actual injury be considered accidental in nature.8
Therefore, in examining the case before us, we analyze whether
Daniel intended or expected to inflict some sort of nontrivial
injury on Caleb.
¶13 Having resolved the issues inherent in the legal tests
for determining whether an injury arises from an accident, we now
analyze whether Caleb’s injuries were accidental in nature. We
must first ascertain if there is a genuine issue of material fact
as to whether Daniel intended to cause a nontrivial injury. We
conclude that there is a genuine issue of fact as to Daniel’s
intent. Daniel testified in his deposition that he did not
intend to harm Caleb. Because Caleb was protected by a full set
of hockey pads, and because striking a protected player on the
pads would likely cause little or no injury, this testimony is
plausible enough to be given at least some weight.9 Therefore,

9 (...continued)
insured intended to happen or intended to do presents particular
problems in cases such as these. A dishonest insured can always
present testimony that he did not intend the harm suffered or
that he intended an act that would not produce physical harm in
an attempt to avoid summary judgment. We recognize the potential
for self-serving testimony to be so inherently improbable that it
would fail to produce a genuine issue of material fact. This,
however, is not such a case.
10 Daniel testified in his deposition that he was aiming his
blow “[s]ort of like in his shoulder-ish.” Because his testimony
is plausible, and because we must view the facts in the light
most favorable to the nonmoving party, we accept Daniel’s
testimony for the purposes of our review. At trial, however, the
fact-finder may choose to disbelieve Daniel’s testimony and
determine that a different version of events actually occurred.
No. 20060284 8
there is an issue of fact as to what Daniel intended when he
swung the hockey stick, making summary judgment under this test
improper.
¶14 We next consider whether an average eight-year-old
would view a nontrivial injury as the natural and probable
consequence of swinging a hockey stick into the upper body10 of
another child who was wearing hockey pads. We hold that under
such circumstances, the average eight-year-old would not have
expected to inflict any substantial injury. Had Daniel
accurately struck his intended target, Caleb would likely have
suffered little or no harm. The question remains, however,
whether an average eight-year-old would perceive that the natural
and probable result of his act would be to miss his mark and
strike an unprotected area. Because of lack of experience, an
eight-year-old is less likely than an adult to appreciate the
potential danger of hitting an unintended area. Therefore, the
average eight-year-old would not expect that nontrivial bodily
harm would be the natural and probable result of such an act.
¶15 Safeco attaches a great deal of importance to the fact
that Daniel admitted in his deposition that he knew hitting
someone with a stick could cause injury. However, the relevant
legal standard is not based on a recognition of what possibly
could happen, but rather, what probably would happen. And
Daniel’s admission does not profess the level of certainty
necessary to suggest that the injury was either intentional or
expected.

9 No. 20060284
CONCLUSION
¶16 We conclude that there is a genuine issue of material
fact as to whether Daniel intended to inflict nontrivial harm
upon Caleb. We also hold that an average eight-year-old would
not anticipate anything more than a minor injury as a result of a
hockey stick striking the padded shoulder of another child. We
therefore reverse the district court’s entry of summary judgment
and remand the case for further proceedings consistent with this
opinion.
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¶17 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.