                                  ___________

                                  No. 95-2055
                                  ___________

American Family Mutual                *
Insurance Company,                    *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *   Appeal from the United States
Mission Medical Group, Chtd;          *   District Court for the Western
B.K.S. Corporation,                   *   District of Missouri.
                                      *
           Appellants.                *
                                      *
Jason E. Filley; Winnie Jacobs;       *
Rodney Jacobs,                        *
                                      *
           Defendants.                *


                                  ___________

                   Submitted:     November 13, 1995

                         Filed:   December 19, 1995
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and FAGG, Circuit Judges.

                                  ___________

BRIGHT, Circuit Judge.


     American   Family   Mutual   Insurance     Company   (American)   issued   a
homeowners policy insuring Rodney Jacobs and members of his family from
liability claims for bodily injury or property damage, but excluding from
coverage "property damage: a. which is expected or intended by any
insured;. . . ."   App. at 24.     Jason Filley and a friend set fire to a
building believing that it housed an abortion clinic.      Jason made a mistake
and burned the wrong building.    American brought this declaratory judgment
action against its insured, including Rodney, his wife, Winnie, and his
stepson Jason Filley, and against the owners and tenant of the building
damaged
by fire.   American asserts that its policy excluded coverage for fire loss
to the burned building.     The district court determined that the exclusion
applied and declared American free of liability.     The tenant and owners of
the   torched   building,   Mission   Medical   Group,   Chartered   and   B.K.S.
Corporation, respectively, (Mission) bring this appeal.        We affirm.


      Following the fire, Jason pled guilty to a Kansas state charge of
arson.   The owners of the property subsequently obtained a default judgment
in Missouri state court against Jason in the sum of $730,069.93.       The civil
suit also charged Winnie with negligent supervision of her son but that
issue has not been tried.


      The state court default judgment made these findings:

            8.  Defendant Jason E. Filley set fire to the Mission
      Medical Group Building, located at 5555 West 58th Street,
      Mission, Kansas, because he believed abortions were performed
      there.

            9. Defendant Jason E. Filley intended to set fire to a
      building near the Mission Medical Group Building, which in fact
      performed abortions.


The judgment then stated:


            1.   Plaintiffs are granted Summary Judgment against
      separate Defendant Jason E. Filley on Count I of the Petition,
      based upon the undisputed facts establishing Defendant Jason E.
      Filley's negligence as a matter of law, and judgment is entered
      against separate Defendant Jason E. Filley and in favor of
      Plaintiffs in the amount of $730,069.93, plus interest at the
      statutory rate from the judgment date, plus the costs of this
      action.


App. at 38-39.


      Mission who appeals makes two contentions:




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      1.    whether Jason acted intentionally is a material fact in dispute,
and


      2.     Winnie's conduct does not fall within the intentional acts
exclusion of the policy.


EXCLUSION OF COVERAGE FOR JASON


      For the purpose of this case we shall consider the following as
established:    (1) that under well established principles the "negligence"
judgment in state court does not bind American, a non- party to that
action; (2) that Jason intentionally started the fire to the building that
burned; (3) that Jason mistakenly thought he was torching an abortion
clinic and (4) that if he had accurate information he might have burned a
nearby building in the area where abortions had in fact been performed.


      The   principal   question   before   us   is   whether   Jason's   "mistake"
converts his intentional burning of the building into a non-intentional act
under the insurance policy.


      American's policy contains the following language:


                        LIABILITY COVERAGES - SECTION II

      COVERAGE D - PERSONAL LIABILITY COVERAGE
      We will pay, up to our limit, all sums for which any insured is
      legally liable because of bodily injury or property damage
      caused by an occurrence covered by this policy. . . .

                            EXCLUSIONS - SECTION II

      Coverage D - Personal Liability . . . Coverage . . . do[es] not
      apply to bodily injury or property damage:
      a. which is expected or intended by any insured;. . . .

(Emphasis added).




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App. at 23-24.


     The federal district court rejected Jason's claim that his mistake
in determining which building housed the abortion clinic         makes the policy
exclusion inapplicable.    The district court opinion stated:


           Relying on the undisputed fact that when Filley set fire
     to the Mission Medical Building he mistakenly believed that
     abortions were being performed there, defendants Mission
     Medical and B.K.S. argue that under Missouri law, Filley was
     negligent. In this case, Filley's admissions establish that
     when he set the fire, he specifically intended to cause
     property damage to the building.      Therefore, his mistaken
     belief that abortions were being performed in the building
     cannot convert his intentional act into a negligent act.


Addendum at 8.


     The appellant cites Curtain v. Aldrich, 589 S.W.2d 61 (Mo. App.
1979), for the proposition that Missouri courts will hold that, in cases
of mistaken identity, acts that appear to be otherwise intentional can
result in a determination of negligence for insurance purposes.         This case
gives us pause.   Curtain also related to an insurance policy exclusion for
an intentional tort.     In the underlying incident the insured, Curtain,
attacked his brother-in-law, Aldrich, with a crow bar and injured him.         The
policyholder   Curtain   contended   that   he    mistakenly    attacked   Aldrich
believing he was an intruder into Curtain's home.         The Missouri Court of
Appeals held that the insurance exclusion would not apply to the assault
if it was induced solely by reason of mistaken belief on the part of
Curtain that this victim was a burglar.          Id. at 65.    The policy in that
case excluded application "to bodily injury or property damage which is
either expected or intended from the standpoint of the insured. . . ."         Id.
at 63.




                                     -4-
     The rationale for Curtain rests on the principle that the unintended
result of an injury following an intended striking does not invoke the
exclusion.   Id. at 63.    The Curtain court reviewed the precedents and
observed that "[c]ases applying exclusionary clauses for intentional acts
involving a mistake of identity uniformly draw a distinction between the
intentional act induced by the mistaken identity and the unintended results
which flow therefrom."     Id. at 64.     The court also observed that the
exclusionary clause of insurance policies mirrored the public policy
denying insurance for intentional acts.        Public policy does not bar
insurance for unintended results flowing from intentional acts.    Id. at 64.


     Thus, neither public policy nor policy exclusions for intentional
acts bar insurance coverage for unintended results.


     That reasoning has no application here.      The insured Jason started
a fire with inflammable liquids intending to burn down the precise building
that did burn.   Thus, Jason and his accomplice committed an intentional act
which produced the expected and intended result of burning the Mission
Medical Group Building.   The fact that he mistakenly believed the building
in question housed an abortion clinic is of no consequence.


     An earlier related Missouri case, Cooper v. National Life Ins. Co.,
253 S.W. 465 (Mo.App. 1923), is cited in Curtain.       In Cooper a person
intentionally shot at another, but hit the insured instead.       The insured
carried an accident policy, insuring him against accidental injuries.    The
insurance company sought to avoid payment by relying on an intentional acts
exclusion clause.   In rejecting this reasoning, the court observed that to
constitute an intentional act excluding coverage the consequences of the
shooting must be intentional as well as the act.       In other words, the
victim must also be intended.




                                    -5-
     In contrast to Curtain and Cooper, Jason and his accomplice started
the fire in the building they intended to burn.          Thus, the act and result
were intended and fell within the policy exclusion.             The Curtain case is
distinctly different in principle.     In sum, the fire set by Jason produced
property   damage   "intended"   and   "expected"   by    the   insured   Jason   and
therefore was within the policy exclusion.


EXCLUSION OF COVERAGE FOR WINNIE


     American also denies coverage to Winnie Jacobs, Jason's mother, even
though the claim against Winnie rests on her alleged negligent supervision.
American relies on the same policy exclusion already quoted.               American
emphasizes that the exclusion for liability extends to property damage
which is expected or intended by any insured.


     Although the parties have cited no Missouri cases on this issue,
other jurisdictions have addressed similar exclusions in liability policies
and these cases support applying the exclusion to a co-insured who has not
participated in the underlying intentional act.          See Allstate Ins. Co. v.
Gilbert, 852 F.2d 449 (9th Cir. 1988); Western Mutual v. Yamamoto, 29 Cal.
App. 4th 1474, 35 Cal. Rptr. 2d 698 (1994); Allstate Ins. Co. v. Freeman,
432 Mich. 656, 443 N.W.2d 734 (1989); and Allstate Ins. Co. v. McCranie,
716 F. Supp. 1440 (S.D. Fla. 1989).


     Thus, under the plain language, no coverage extends to Winnie where
"any insured," and Jason is included as "any insured," expects or intends
the damage.


     Accordingly, we affirm.




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A true copy.


     Attest:


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




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