                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2558
                                   ___________

Essex Insurance Company,                 *
                                         *
             Plaintiff-Appellant,        *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * District of Minnesota.
Janet C. Davidson, as Trustee for the    *
heirs of Milton Davidson, Deceased;      *
South Metro Human Services, a            *
Minnesota Non-Profit Corporation,        *
                                         *
             Defendants-Appellees.       *
                                    ___________

                             Submitted: March 16, 2001

                                 Filed: May 1, 2001
                                  ___________

Before MURPHY, LAY, and BYE, Circuit Judges.
                           ___________

LAY, Circuit Judge.

                                  I. Background

      South Metro Human Services (South Metro) is a non-profit corporation that
provides social services to persons with mental disabilities. South Metro contracted
with Essex Insurance Company (Essex) for liability coverage. South Metro’s policy
covered all damages resulting from a “wrongful act.” The policy defined “wrongful
act” as “any negligent act, error or omission in the rendering or failure to render
professional services of the type described in the declaration.” The policy also
included several exclusions, including an assault and battery exclusion (the battery
exclusion), which denied any coverage arising out of “Assault and/or Battery or out of
any act or omission in connection with the prevention or suppression of such acts,
whether caused by or at the instigation or direction of any Insured, Insured’s
employees, patrons or any other person.”

        In 1996, Ricky Davidson was receiving treatment from South Metro for
schizophrenia. On May 14, 1996, Ricky’s mother, Janet Davidson, called South Metro
asking for assistance with her son. A South Metro employee visited the Davidson
home, spoke with Ricky and his father, Milton Davidson. Unfortunately, sometime
after the South Metro employee left the Davidson home, Ricky Davidson killed his
father.

        Ricky Davidson was charged with second-degree murder in state district court.
The state court determined that Ricky Davidson was not guilty by reason of mental
illness, concluding that he was “laboring under such defective reasoning that he was
incapable of appreciating the nature of his acts or that they were wrong.” State v. Rick
William Davidson, No. 96-1774, slip op. at 4 (Minn. Dist. Ct. July 19, 1996). Not long
after, Janet Davidson sued South Metro alleging three counts of negligence on the part
of South Metro and its employee.

       In 1999, Essex filed suit seeking a declaratory judgment in the United States
District Court for the District of Minnesota. Essex asked the district court to declare
that the battery exclusion protected Essex from liability for any judgment stemming
from Ricky Davidson’s murder of his father. The district court, the Honorable Paul A.
Magnuson, Chief Judge, presiding, rejected Essex’s arguments, holding the battery
exclusion was inapplicable. The district court reasoned that since Ricky Davidson was
found not guilty by reason of mental illness, he could not form the intent necessary to

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commit a battery against his father. Thus, since Ricky Davidson could not, as a matter
of law, commit a battery against his father, the battery exclusion did not apply and
Essex’s policy covered South Metro’s damages flowing from Ricky Davidson’s attack
on his father. We affirm the district court’s ruling.

                                    II. Discussion

       The only issue in this case is whether the battery exclusion applies to Ricky
Davidson’s murder of his father, which naturally leads to the question of whether he
committed a battery against his father.1 Under Minnesota law, a battery includes two
elements: (1) an offensive or harmful contact; and (2) an intent to cause such offensive
or harmful contact. See Johnson v. Morris, 453 N.W.2d 31, 40 (Minn. 1990). There
is no question that Ricky Davidson’s murder of his father satisfied the harmful contact
element. The issue before us is whether the state court’s finding that Ricky Davidson
was not guilty of killing his father by reason of mental illness negates, as a matter of
law, his ability to form the intent to commit a battery, and thus renders the battery
exclusion inoperable. This is a question of insurance contract construction that we
review de novo. See Bell Lumber and Pole Co. v. U.S. Fire Ins. Co., 60 F.3d 437, 441
(8th Cir. 1995).

     In State Farm Fire & Casualty Co. v. Wicka, 474 N.W.2d 324 (Minn. 1991), the
Minnesota Supreme Court decided a closely related issue. The issue in Wicka was
whether an intentional act exclusion2 in an insurance policy applies to injuries resulting


      1
        South Metro raises a variety of other arguments to support the district court’s
ruling. In light of our disposition of the main issue, we need not reach these arguments.
      2
       An intentional act exclusion is almost, but not quite, the same as the battery
exclusion. The intentional act exclusion in Wicka reads as follows: “Medical
Payments to Others do not apply to: (a) bodily injury or property damage which is
expected or intended by the insured.” Wicka, 474 N.W.2d at 326.

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from acts committed by a person suffering from a mental illness. The Wicka court
noted that intent includes two elements: a cognitive element and a volitional element.
Both elements must be present for an individual to intend to cause bodily injury, and
either may be affected by a mental illness. Id. at 331. Given that these two elements
combine to form intent, Wicka held:

      We hold, therefore, that for the purposes of applying an intentional act
      exclusion . . . an insured’s acts are deemed unintentional where, because
      of mental illness or defect, the insured does not know the nature or
      wrongfulness of an act, or where, because of mental illness or defect, the
      insured is deprived of the ability to control his conduct regardless of any
      understanding of the nature of the act or its wrongfulness.

Id.

       As Essex repeatedly points out, however, Wicka is not necessarily controlling.
Essex argues Wicka dealt with an intentional act exclusion rather than the battery
exclusion present in South Metro’s policy. Essex correctly argues that an intentional
act exclusion covers only situations where “the insured intended the harm” that resulted
from his acts rather than merely intending the act that caused the harm. Id. at 329. In
contrast, Essex argues that the battery exclusion applies when there is proof of intent
to act but no proof of intent to injure. This is so because to commit a battery one need
not intend the harm that results from an act. See Kinikin v. Heupel, 305 N.W.2d 589,
593-94 (Minn. 1981) (allowing battery verdict against surgeon who engaged in
unauthorized breast removal, despite the physician’s intent to heal patient). Thus,
Essex argues that Wicka is inapplicable since it dealt with a separate issue.




       Essex relies heavily, indeed almost exclusively, on the difference between the
intentional act exclusion and the battery exclusion. We will deal with Essex’s
arguments infra.

                                          -4-
       There are a number of problems with Essex’s argument. Even assuming Essex’s
interpretation of the difference between the battery exclusion and the intentional act
exclusion is correct, it draws the wrong conclusions from the distinction. Essex relies
on a conclusion from the trial court’s decision in Ricky Davidson’s murder trial: “the
Court finds . . . that the Defendant, while armed with a dangerous weapon, to-wit: a
knife, caused the death of Milton Davidson by stabbing him in the chest and that he
acted with the intent to effect the death of Milton Davidson.” State v. Rick William
Davidson, No. 96-1774, slip op. at 4 (Minn. Dist. Ct. July 19, 1996) (emphasis added).
Essex believes this finding by the trial court shows “Davidson intended to effect the
death of his father” so “the conclusion he intended his act and therefore committed a
battery is inescapable.” (Essex Reply Br. at 6). But this argument runs afoul of Wicka.
The language of the trial court means not only that Ricky Davidson intended to act, but
that he intended to cause injury to his father. Were we to find this isolated statement
from the trial court controlling, we would necessarily rule, despite Ricky Davidson’s
insanity, that his actions were covered even by an intentional act exclusion, since, at
least according to this statement, he acted with the intent to cause injury to his father.
This conclusion would run directly contrary to the Minnesota Supreme Court’s decision
in Wicka.

       Further, Essex’s reliance on this isolated statement from the trial court overlooks
the context in which the trial court made that statement. The state court conducted a
bifurcated trial, first determining whether Ricky Davidson was guilty of murder, and
second whether he suffered from a mental illness. Thus, when the state court wrote
that Ricky Davidson killed his father with the requisite intent, it was merely finding that
the statutory elements of second degree murder were satisfied, including intent. It then
moved to the second question, finding that Ricky Davidson suffered from a mental
illness that made him not guilty for his crime. The trial court did not face, and had no
reason to be concerned with, the question we face: whether Ricky Davidson’s insanity
precluded his ability to form the intent to commit a battery.


                                           -5-
       An examination of Wicka and the intent necessary to commit a battery shows
that Ricky Davidson’s mental illness precludes his ability to form the requisite intent
under Minnesota law. While Essex is correct that the battery exclusion is broader than
the intentional act exclusion, it is not so broad as Essex believes. True, a battery does
not require an intent to injure, but it does require an intent to cause the offensive
contact at issue. See Schumann v. McGinn, 240 N.W.2d 525, 529-30 n.4 (Minn. 1976)
(“(1) An actor is subject to liability to another for battery if (a) he acts intending to
cause a harmful or offensive contact with the person of the other.”) (quoting
RESTATEMENT (SECOND) OF TORTS § 18 (1965)) (emphasis added). The battery
exclusion is thus broader than an intentional act exclusion since it covers an intent to
cause offensive contact as well as an intent to cause injurious contact. Essex is wrong,
however, when it suggests that the battery exclusion applies when there is only an
intent to act: a battery necessarily demands either an intent to cause harm or an intent
to cause offensive contact.

      Even though Wicka concerned an intentional act exclusion rather than the battery
exclusion before us, we have no reason to believe that the slight difference between the
two exclusions would cause the Minnesota Supreme Court to retreat from Wicka. The
Wicka court held that an insane person, within the meaning of the criminal law,3 lacked
the cognitive ability to form the intent to injure another. See Wicka, 474 N.W.2d at
330-31. As we noted above, despite Essex’s erroneous arguments, the only difference
between an intentional act exclusion and a battery exclusion is that the battery
exclusion includes situations where the actor has the intent to cause either offensive or
harmful contact, while an intentional act exclusion only covers situations where the
actor has the intent to cause harmful contact. There is no appreciable difference,
however, between the intent to cause harmful bodily contact and the intent to cause


      3
       The Wicka court repeatedly noted that the mental illness standard it was
describing was more lenient than the mental illness standard in Minnesota criminal law.
See Wicka, 474 N.W.2d at 330.

                                          -6-
offensive bodily contact such that an insane person could form the latter but not the
former. If mental illness defeats the ability to “choose” to cause harm and to
“appreciate the choice” to cause such harm, mental illness necessarily defeats the
ability to “choose” offensive contact and “appreciate the choice” to cause offensive
contact. Id. at 330.

       Based upon Wicka, we believe the Minnesota Supreme Court would hold that
a mentally ill person cannot form the intent to cause harm or to cause offensive bodily
contact. Since one of those two forms of intent are necessary for a battery, and Ricky
Davidson was judged to suffer from a mental illness that negated his criminal
responsibility for the death of his father, it follows that Ricky Davidson could not have
formed the intent to commit a battery against his father. Therefore, the battery
exclusion in South Metro’s policy does not relieve Essex from providing South Metro
coverage for any damages that resulted from Janet Davidson’s lawsuit. The district
court’s decision is AFFIRMED.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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