                                                                   Michigan Supreme Court
                                                                         Lansing, Michigan
                                             Chief Justice:	            Justices:



Opinion                                      Maura D. Corrigan 	        Michael F. Cavanagh
                                                                        Elizabeth A. Weaver
                                                                        Marilyn Kelly
                                                                        Clifford W. Taylor
                                                                        Robert P. Young, Jr.
                                                                        Stephen J. Markman




                                                           FILED JULY 30, 2004

  ALLSTATE INSURANCE COMPANY,

        Plaintiff-Appellee,

  v                                                                        No. 122849

  ROBERT DANIEL MCCARN, ET AL.,

        Defendants-Appellants,

  and

  NANCY S. LABELLE, personal representative
  of the estate of KEVIN CHARLES LABELLE,
  deceased,

        Defendants-Appellants.

  _______________________________

  BEFORE THE ENTIRE BENCH

  TAYLOR, J.

                               AFTER REMAND

        This   case    is   before    us   for    the          second     time.         In

  Allstate Ins Co v McCarn, 466 Mich 277; 645 NW2d 20 (2002)

  (McCarn   I),   we    held   that    the   shooting            death       of     Kevin

  LaBelle was “accidental” and, thus, an “occurrence” within

  the meaning of the insurance policy at issue.                         Because the
shooting was an “occurrence” covered under the policy, it

gave       rise    to    Allstate’s     potential        liability.      However,

because the Court of Appeals had not addressed whether the

criminal-acts exception in the policy precluded coverage,1

we remanded the matter to that Court.                      On remand, the Court

of Appeals held that the criminal-acts exception precludes

coverage          in    this   case.2       We     disagree     and   reverse   the

decision of the Court of Appeals.                      We remand to the trial

court for further proceedings.

                               I.   FACTS   AND   PROCEEDINGS

       We set forth the facts in our previous opinion:

            This case arises out of the death of
       sixteen-year-old Kevin LaBelle on December 15,
       1995, at the home of defendants Ernest and
       Patricia McCarn, where their grandson, then
       sixteen-year-old defendant Robert McCarn, also
       resided. On that day, Robert removed from under
       Ernest’s bed a shotgun Robert’s father had given
       him the year before.    The gun was always stored
       under Ernest’s bed and was not normally loaded.
       Both Robert and Kevin handled the gun, which
       Robert believed to be unloaded. When Robert was
       handling the gun, he pointed it at Kevin’s face
       from approximately one foot away.   Robert pulled
       back the hammer and pulled the trigger and the
       gun fired, killing Kevin.

            Nancy LaBelle, representing Kevin’s estate,
       brought the underlying action against Robert and
       his grandparents, Ernest and Patricia McCarn, who
       had a homeowners insurance policy with plaintiff


       1
       Unpublished opinion per curiam, issued October 3,
2000 (Docket No. 213041).
       2
       Unpublished opinion per curiam, issued November 15,
2002 (Docket No. 213041).

                                            2

    Allstate.   Allstate brought the present action,
    seeking a declaratory judgment that it had no
    duty to indemnify defendants Robert, Ernest, or
    Patricia McCarn.

         Plaintiff and defendants moved for summary
    disposition in the declaratory action. The trial
    court granted defendants’ motions for summary
    disposition and denied plaintiff’s, holding that
    the events constituted an “occurrence” within the
    meaning of Allstate’s policy.    The trial court
    also held that Robert McCarn’s conduct was not
    intentional or criminal within the meaning of
    Allstate’s policy.

         Allstate appealed to the Court of Appeals,
    which reversed the trial court in an unpublished
    opinion.1 The Court attempted to apply our recent
    decisions in Nabozny v Burkhardt2 and Frankenmuth
    Mut Ins Co v Masters3 and concluded that “Robert’s
    intentional actions created a direct risk of harm
    that precludes coverage.” [McCarn I at 279-280.]

    1
        Issued October 3, 2000 (Docket No. 213041).
    2
        461 Mich 471; 606 NW2d 639 (2000).
    3
        460 Mich 105; 595 NW2d 832 (1999).


    This    Court   reversed   the   decision   of   the   Court   of

Appeals, holding that the “accident” was an “occurrence” as

defined in the insurance policy at issue, thus giving rise

to Allstate’s potential liability.         Id. at 291.       Once a

court decides that liability may exist under an insurance

policy, it may then determine whether coverage is precluded

by an exception.    Allstate Ins Co v Freeman, 432 Mich 656,

668; 443 NW2d 734 (1989).        Because the Court of Appeals

originally found no liability, it did not determine whether

the criminal-acts exclusion precluded coverage under the


                                3

policy.      Because the Court of Appeals had not addressed

this exclusion, we remanded the issue to that Court to

determine if it applied.              McCarn I at 291.

     On remand, the Court of Appeals, in a split opinion,

applied    the    two-pronged         test      from    Freeman         and    concluded

that Robert acted criminally under the first prong of the

test because his actions constituted manslaughter under MCL

750.329.     Slip op at 2-4.            The Court of Appeals determined

that the applicability of the exclusionary clause “turns on

whether LaBelle’s death was reasonably expected to result

from Robert’s criminal act.”                 Slip op at 3.          The panel then

concluded    that        “a   person     who     points       a    gun    at     another

person’s face and intentionally pulls the trigger without

checking to see whether the gun is loaded can reasonably

expect    that    injury       will    result.”          Slip      op    at    4.     The

dissenting       judge    also      applied      the    two-pronged           test   from

Freeman, but concluded that “reasonable minds could differ

regarding whether Kevin’s death occurred as the natural,

foreseeable, expected, and anticipated result of Robert’s”

acts. Slip op at 3 (White, J., dissenting).                                   We granted

defendants’ application for leave to appeal.                             469 Mich 947

(2003).

                              II.    STANDARD   OF   REVIEW

     To     determine          whether         Allstate       is        obligated      to

indemnify the McCarns, we examine the insurance policy at


                                          4

issue.       Issues   involving    the       proper    interpretation       of

insurance contracts are reviewed de novo.                  Cohen v Auto

Club Ins Ass’n, 463 Mich 525, 528; 620 NW2d 840 (2001).

An insurance policy must be enforced in accordance with its

terms, which are given their “commonly used meaning” if not

defined in the policy.         Frankenmuth Mut Ins Co v Masters,

460 Mich 105, 112, 114; 595 NW2d 832 (1999).

                              III. ANALYSIS

     When this case was last before us, in interpreting the

following    language,      “Allstate    will    pay    damages    .    .   .

arising   from   an   occurrence,”      we    concluded    that,   on   the

basis of undisputed facts, the shooting was an accident

triggering Allstate’s liability.             Justice Cavanagh, writing

for the Court, said:

          [T]his case does not present a question of
     fact. The fact that Robert believed the gun was
     unloaded is a matter about which there is no
     genuine issue of material fact. This is because
     there is nothing in the record to reasonably
     support a conclusion that, contrary to Robert's
     testimony that he believed the gun was unloaded,
     he consciously believed the gun was loaded, or
     even contemplated that there was any possibility
     that it was loaded when he pulled the trigger.
     Even plaintiff, the insurer, acknowledged that
     Robert believed the firearm was unloaded when he
     pulled the trigger . . . .   [McCarn I, supra at
     285-286.]

     To this set of facts we then applied the requisite

subjective    test    and   concluded    that     Robert’s   expectation

that no bodily harm would result from an unloaded gun was



                                   5

reasonable.      Id. at 291.       The wisdom of shooting even an

unloaded gun at another in the first place was, and is, not

before us.

     In   this   case,   we    deal    with   other    policy   language,

which is commonly described as the criminal-acts exclusion.

It states:

          We do not cover any bodily injury or
     property damage intended by, or which may
     reasonably be expected to result from the
     intentional or criminal acts or omissions of, any
     insured person. This exclusion applies even if:

          a) such insured person lacks the                    mental
     capacity to govern his or her conduct;

          b) such bodily injury or property damage is
     of a different kind or degree than intended or
     reasonably expected; or

          c) such bodily injury or property damage is
     sustained by a different person than intended or
     reasonably expected.

          This exclusion applies regardless of whether
     or not such insured person is actually charged
     with, or convicted of a crime.

     This language directs us to apply a two-pronged test.

There is no insurance coverage if, first, the insured acted

either    intentionally       or   criminally,        and    second,   the

resulting injuries were the reasonably expected result of

an insured’s intentional or criminal act.                   We agree with

the Court of Appeals that the first prong of this test—that

there was an intentional or criminal act—has been met.




                                      6

       Answering the second prong of the test, whether the

resulting injury was the reasonably expected result of this

criminal act, requires this Court to engage in an objective

inquiry.    Allstate Ins Co v Freeman, 432 Mich 656, 688; 443

NW2d 734 (1989) (opinion by Riley, J.).                      That is, we are to

determine   whether     a   reasonable          person,      possessed    of    the

totality    of    the   facts      possessed       by    Robert,      would    have

expected the resulting injury.                    This requirement to base

the objective reasonability test on all the facts has been

discussed by scholars of tort law:                      “The conduct of the

reasonable person will vary with the situation with which

he is confronted.       The jury must therefore be instructed to

take the circumstances into account . . . .”                           Prosser &

Keeton,    Torts   (5th     ed),    §     32,     at    175.     We    have    held

similarly in our cases, “[T]he reasonable person standard

examines the totality of the circumstances to ensure a fair

result.”    Radtke v Everett, 442 Mich 368, 391; 501 NW2d 155

(1993).     This means that here we must consider not just

that    Robert,    as     the   Court        of    Appeals       described      it,

“point[ed] a gun at another person’s face and intentionally

pull[ed]    the    trigger,”        but      also,      as     Allstate   itself

acknowledges, that Robert thought the gun that he pointed

was unloaded.       Slip op, November 15, 2002, p4; McCarn I,




                                        7

supra at 286.3     Thus, we are called on to determine if a

reasonable person would have expected bodily harm to result

when the gun, in the unloaded state Robert believed it to

be, was “fired.”       The answer is no because, obviously, an

unloaded gun will not fire a shot.       As this Court explained

in McCarn I, supra at 290-291:

          [No] bodily harm could have been foreseen
     from Robert’s intended act, because he intended
     to pull the trigger of an unloaded gun, and,
     thus, it was not foreseeable, indeed it was
     impossible, under the facts as Robert believed
     them to be, that shot would be discharged.

     To recapitulate, the proper test is that we are to

first determine what Robert actually believed about the gun

being loaded, not what a reasonable third party would have

believed   on   that   issue.   Then,   using   that   belief   as   a

starting point, we are to determine in the second step if a

reasonable person, possessed of Robert’s belief, would have

expected bodily harm to result from pulling the trigger.

In fact, because reasonable minds could not differ that an



     3
        That Robert believed the gun was unloaded is
uncontested. Allstate has never argued, as it might have,
that Robert did not believe the gun was unloaded.   To the
contrary, Allstate’s brief in support of its motion for
summary disposition notes that Robert pulled the trigger
even though “he thought the gun was unloaded.”   Even when
arguing most recently before this Court, counsel for
Allstate said, “It is a fact that he subjectively believed
that the gun was unloaded,” and, “Subjectively he believed
it wasn’t loaded.”   Because Allstate did not contest this
issue, there is no disputed issue of fact regarding his
belief.

                                 8

unloaded gun will not fire a shot, it is appropriate under

MCR     2.116(C)(10)       to     grant        summary     disposition        to

defendants.

                          IV. RESPONSE      TO DISSENTS

       The dissent of Justice Weaver is predicated on the

notion that insurance policies should not cover the acts of

foolish,     reckless,    or    even   lawless       people.     This    is    a

peculiar view because these are among the very people that

society wishes to be insured and, in some circumstances,

such    as   motor    vehicle     insurance,        even   requires     to    be

insured.     MCL 500.3101.        She seems to regard insurance as

solely benefiting the insured and thus when it pays out it

is a form of reward.           This overlooks, however, the societal

benefit that insurance provides to those injured or damaged

by     the   acts    of   insured      but       otherwise     uncollectible

individuals.        The true beneficiary of liability insurance

is not the insured, but his injured victim.                    The Court of

Appeals said this aptly twenty years ago:

            [I]t is unlikely that [an] insured [is]
       induced to engage in the unlawful conduct by
       reliance upon the insurability of any claims
       arising therefrom or that allowing insurance
       coverage    . . . would induce future similar
       unlawful conduct . . . . Nor does it appear that
       the policy was obtained in contemplation of a
       violation of the law. Furthermore, coverage does
       not allow the wrongdoer unjustly to benefit from
       his wrong.     It is not the insured who will
       benefit, but the innocent victim who will be
       provided    compensation  for    her   injuries.



                                       9

        [Vigilant Ins Co v Kambly, 114 Mich App 683, 687;
        319 NW2d 382 (1982) (citations omitted).]

        As for Justice Young’s dissent, he posits that the

majority opinion is based on the majority’s public policy

notions.        We   disagree.         Rather,   our    decision     is    based

entirely on the language of the insurance policy at issue

here.     The policy excludes coverage of injuries which “may

reasonably be expected to result from the intentional or

criminal    acts”     of   the   insured.        Because     one     would     not

reasonably expect injury to result from pulling the trigger

of an unloaded gun, coverage is not excluded.

        He further indicates that the majority has conflated

the subjective and objective inquiries called for by the

policy    and   has   gutted     the    exclusion      of   any    use    to   the

insurer.     We again disagree.          We have simply drawn the line

the policy calls for between what the insured believed at

the point of the intentional or criminal act and applied to

that belief what a reasonable person could expect to result

from that act.        Thus if, as here, an insured believes a gun

is unloaded, and in this case it is conceded by the insurer

that Robert indeed did believe that, then no reasonable

person could believe, given that starting point, that a

shot would come from the gun when fired.                          On the other

hand, if an insured believes a gun is loaded and operable

when he points it at someone and pulls the trigger but, for



                                        10

whatever reason, expects no shot to come from it and thus

does not expect harm to result, there would be no coverage

because a reasonable person would expect a shot to come

from a loaded, operable gun and that harm would result from

that.4       The point is the insured’s expectations of what will

result from his act are irrelevant.

        It should also be pointed out that we believe that the

effect of Justice Young’s position would be that if a harm

or injury results from an intentional or criminal act it

will        almost     never     be    covered       under    a    policy    with   this

exclusion.            This result can be seen in his approach to this

case.        Because he can reason back and know that the gun was

loaded,          he   concludes       that    the    policy       exclusion    dictates

that there is no insurance coverage.                         Yet, we believe such

hindsight reasoning is an improper mode of analysis for

this accident.                In hindsight, an insurer might always be

able        to    reason      backwards      from    an     accident    and   conclude

that, by definition, a reasonable person would not have

done whatever precipitated such accident.

        The       dissents’      approaches         would    eviscerate       insurance

policies of much of their value to insureds, leaving only

“occurrences            that        were     truly     unexplainable”         covered.

McCarn           I,   supra    at     289.     Yet,       unforeseen,       unfortunate



        4
            This is essentially what happened in Freeman.

                                              11

consequences         of    explicable     or     even    intentional         acts    are

“the very purpose of insurance . . . .”                          Id. at 288.          As

this Court stated in McCarn I, supra at 288, “We must be

careful not to take the expectation of harm test so far

that we eviscerate the ability of parties to insure against

their    own    negligence.”             “Otherwise,       liability         insurance

coverage    for      negligence         would    seem    to     become    illusory.”

Id.     “The problem, as we see it, with the dissent’s opinion

is that it undermines the ability of insureds to protect

themselves against their own foolish or negligent acts.”

Id.     “However, the impetus for insurance is not merely, or

even principally, to insure oneself for well thought out

and reasoned actions that go wrong, but to insure oneself

for foolish or negligent actions that go wrong.                           Indeed, it

is obviously the latter that are more likely to go astray

and to precipitate the desire for insurance.”                            Id.    To the

extent     that      the     dissents         would    erode     the     ability      of

insureds       to    protect      themselves          against    theirs—or       their

family     members’—foolish              or     stupid        acts,      they     would

eviscerate insurance contracts of much of their purpose and

value.      This is simply to say that with Justice Young’s

approach       there      would    be    seemingly       no     coverage       for   any

intentional         or     criminal       act     where       there      was     injury

resulting from the act.                  This would narrow those having

insurance       in        such    circumstances          greatly       and      perhaps


                                          12

entirely.      This    disturbing    outcome    cannot   be    what    this

policy    provision     intended,    nor   is   it   what     the   policy

language calls for.

                              V.   CONCLUSION

     We hold that there is no question of fact whether

Kevin’s     death     was   the    reasonably   expected      result     of

Robert’s act.       Accordingly, we reverse the judgment of the

Court of Appeals and remand to the trial court for further

proceedings.

                                     Clifford W. Taylor
                                     Marilyn Kelly
                                     Stephen J. Markman


CAVANAGH, J.

     I concur in the result only.

                                     Michael F. Cavanagh




                                    13

                    S T A T E      O F    M I C H I G A N 


                                 SUPREME COURT 



ALLSTATE INSURANCE COMPANY,

       Plaintiff-Appellee,

v                                                                    No. 122849

ROBERT DANIEL MCCARN, ET AL,

       Defendants-Appellants,

and

NANCE S. LABELLE, personal representative
of the estate of KEVIN CHARLES LABELLE,
deceased,

       Defendants-Appellants.


WEAVER, J. (dissenting).

       I would hold that the intentional and criminal acts

exclusion      of   the   homeowner’s         insurance     policy    at    issue

excludes coverage in this case.                 I would remand this case

to    the   trial    court       for   entry   of   summary    judgment      for

defendant.      I, therefore, dissent from both the result and

reasoning of the lead opinion.

       After    sharing      a    bowl   of    marijuana,     Robert       McCarn

intentionally       aimed    a     shotgun     at   Kevin    LaBelle’s      face

without checking whether the shotgun was loaded.                      McCarn’s

testimony revealed that he was horse playing, but intended
to frighten LaBelle into sharing some crackers with him.

When   McCarn    pulled    the   trigger,   the    gun   discharged   and

LaBelle was killed.         McCarn pleaded nolo contender to a

charge of manslaughter, MCL 750.321.

       The   intentional    or   criminal   acts    exclusion   of    the

policy now at issue unambiguously states:

            We do not cover any bodily injury or
       property damage intended by, or which may
       reasonably be expected to result from the
       intentional or criminal acts or omissions of, any
       insured person. This exclusion applies even if:

            a) such insured person lacks the                mental
       capacity to govern his or her conduct.

            b) such bodily injury or property damage is
       of a different kind or degree than intended or
       reasonably expected; or

            c) such bodily injury or property damage is
       sustained by a different person than intended or
       reasonably expected.

            This exclusion applies regardless of whether
       or not such insured person is actually charged
       with, or convicted of a crime.

Unambiguous insurance policy language must be enforced as

written.      Farm Bureau Ins Co v Nikkel, 460 Mich 558, 570;

596 NW2d 915 (1999).

       This Court addressed a similar exclusionary clause in

Allstate Ins Co v Freeman, 432 Mich 656, 685; 443 NW2d 734

(1989).      The exclusion at issue in Freeman provided:

            We do not cover any bodily injury or
       property damage which may reasonably be expected
       to result from the intentional or criminal acts


                                    2

        of an insured person or which is in fact intended
        by an insured person. [Freeman at 685.]

Freeman held that the exclusionary clause at issue in that

case relieved the insurer of liability if “(1) the insured

acted     either       intentionally        or        criminally,            and       (2)    the

resulting injuries occurred as the natural, foreseeable,

expected,        and      anticipated            result          of         an        insured’s

intentional or criminal acts.”                        Id. at 700 (emphasis in

original).

        Though   similar      to    the     policy          at    issue          in    Freeman,

there are important differences to the policy language at

issue in this case.             The criminal acts exclusion of the

homeowner’s      insurance         policy       at     issue          in    this       case    is

broader     than       that    in     Freeman.                   It        includes          three

subsections        that     expressly           expand       the           scope       of     the

exclusion.       Relevant to this case, subsection b provides

        “[t]his exclusion applies even if . . . Such
        bodily injury or property damage is of a
        different kind or degree than intended or
        reasonably expected. . . .”

Subsection b applies because “even if” indicates that the

subsections      are      included    in        and    help       define         the    policy

exclusion.         Thus,      consideration            of    the       specific         policy

language at issue in this case requires some adjustment to

Freeman’s second prong for this case.                            Subsection b shifts

the inquiry away from the actual injury that resulted from

intentional      or     criminal     actions,           to       whether         any     bodily
                                           3

injury or property damage could be reasonably expected to

result from the actions.

       Nevertheless, to the extent the policy at issue in

this case is similar to the policy at issue in Freeman,

Freeman’s    two-pronged        objective    test     is   instructive.

Freeman,    supra   at   700,    correctly       identified    the   first

question under policy language before the Court as whether

“the insured acted either intentionally or criminally.”                  I

agree with the lead opinion that the policy requirement

that   McCarn    acted   intentionally      or    criminally    is   met.

McCarn acted intentionally when he pulled the trigger of a

gun while pointing it at LaBelle’s face.                   As correctly

explained by the Court of Appeals, McCarn’s actions were

also criminal.

       Regarding whether it was reasonable to expect injury

or property damage would result from the intentional or

criminal act, it is the consensus of this Court Freeman

correctly employed an objective inquiry.               The dispositive

question under the language of this policy and the facts of

this case should be, therefore, whether a reasonable person

would expect bodily injury or property damage to result

when a person points a gun at another person’s face without

determining whether the gun was loaded and then pulls the

trigger.


                                    4

        While the lead opinion acknowledges that the language

“may     reasonably         be    expected”         dictates       an     objective

standard,       ante   at    7,   the      lead    opinion’s      rationale      only

pretends to be objective.                By focusing on McCarn’s belief

that the gun was unloaded, ante at 7, the lead opinion

abandons the objective standard in favor of the subjective

belief    of    a   teenager      under     the     influence     of     marijuana.

Fortunately,        the    lead   opinion’s        rationale      will    not    bind

future decisions, because it was joined by only two other

justices.        One justice joins the lead opinion in result

only.          Three      justices      agree      that     the    lead     opinion

incorrectly         transforms       the        objective    standard      into     a

subjective standard.

        An established rule in construing insurance contracts

is that “[a]n insurer is free to define or limit the scope

of coverage as long as the policy language fairly leads to

only     one     reasonable          interpretation         and     is     not     in

contravention of public policy.”                   Heniser v Frankenmuth Mut

Ins Co, 449 Mich 155, 161; 534 NW2d 502 (1995).                           The lead

opinion implies that it is against public policy to deny

coverage in this case.               Ante at 8.        To indirectly support

this suggestion, the lead opinion vaguely alludes to the

no-fault act, MCL 500.3101 et seq.                     Ante at 8.          However,

the lead opinion utterly fails to understand that the no-


                                           5

fault act is irrelevant to this case because there is an

important    difference    between     no-fault    insurance    and   the

homeowner’s     insurance.        In     the      no-fault    act,    the

Legislature    expressly   requires     that    the   insurer    provide

residual coverage for intentionally caused damages.                   MCL

500.3135(3)(a).       There is no such requirement imposed on

homeowner’s insurance providers by any statute.                 Had the

Legislature     intended     to   require      homeowner’s     insurance

providers to cover criminal and intentional acts it could

have done so.        Thus the lead opinion has not established

that the homeowner’s insurance policy exclusion at issue is

against     public   policy.1     The    lead     opinion    twists   the



     1
       Not only is the no-fault act irrelevant to the this
case, the lead opinion’s citation of Vigilant Ins Co v
Kambly, 114 Mich App 683, 687; 319 NW2d 382 (1982) is also
entirely irrelevant and inapplicable.     Vigilant involved
whether a medical malpractice insurer was required to
provide coverage for a malpractice claim against a doctor
who engaged in sexual activity with a patient under the
guise of medical treatment.      It should be noted that
medical malpractice is governed by different statute than
homeowner’s insurance. Moreover, the malpractice insurance
policy in that case contained no criminal or intentional
acts exclusion. Thus, the Court of Appeals panel declined
to read a criminal and intentional acts exclusion into the
policy.   The panel concluded, supra at 687-688, that the
doctor’s actions were a covered form of malpractice and
noted “[i]n this instance, there is great public interest
in protecting the interests of the injured party.”
Nevertheless, the panel noted, id at 687, that there are
“public policy considerations raised by [the medical
malpractice insurer] which prohibit the insurability of
criminal or intentionally tortuous conduct” which were not
present on the facts of that case. Thus, Vigilant does not
support the lead opinion’s policy-making intentions.
                              6
objective   standard   required   by   the   policy    exclusion   at

issue in this case into a subjective standard in order to

justify holding “an insurer liable for a risk it did not

assume.”2

     In this case, interpreting the unambiguous terms of

this homeowner’s insurance policy exclusion, the relevant

focus is on whether any bodily injury or property damage

could reasonably be expected from the McCarn’s intentional

or   criminal   act.    The   intentional     and     criminal   acts

exclusion of the homeowner’s insurance policy at issue in

this case plainly and unambiguously excludes coverage under

these facts since bodily injury can reasonably be expected

to result when, without first determining that a gun is

unloaded, a person points the gun at another person and

pulls the trigger.

     For these reasons, I dissent from the lead opinion and

would affirm the decision of the Court of Appeals excluding

coverage under the intentional and criminal acts exclusion

of the home owner policy at issue.

                                  Elizabeth A. Weaver
                                  Maura D. Corrigan




     2
       Farm Bureau, supra at 568, citing Auto-Owners Ins Co
v Churchman, 440 Mich 560, 567; 489 NW2d 431 (1992).
                              7
                  S T A T E     O F   M I C H I G A N 


                              SUPREME COURT 



ALLSTATE INSURANCE COMPANY,

      Plaintiff-Appellee,

v                                                             No. 122849

ROBERT DANIEL MCCARN, ET AL,

      Defendants-Appellants,

And

NANCY S. LABELLE, personal representative
of the estate of KEVIN CHARLES LABELLE,
deceased,

      Defendants-Appellants.

_______________________________

YOUNG, J. (dissenting).

      I concur fully in the dissenting opinion of Justice

WEAVER,   but   write   separately    to    highlight   the   import   of

Justice TAYLOR’S lead opinion:             Today, the members of the

lead opinion,1 for unarticulated policy reasons of their

own, ignore the explicit contract language at issue and

obliterate the distinction recognized in our law between



      1
       I note that the lead opinion has garnered only three
votes for its rationale; Justice CAVANAGH has concurred only
in the result. Therefore, the lead opinion has no
precedential value.   People v Jackson, 390 Mich 621, 627;
212 NW2d 918 (1973).
subjective and objective standards in insurance exclusion

provisions.2

     In an apparent policy-driven view that even the most

fanciful    beliefs   merit   insurance   coverage,   the   standard

articulated by the lead opinion conflates any meaningful

distinction between a subjective and objective contractual

standard.      The lead opinion cites no precedent or other

legal authority for its position.         There is none.    The new

alleged “objective standard” announced in the lead opinion

today leaves an insurer unable to exclude even the most

dangerous intentional or criminal behavior from coverage as

a matter of law, so long as an insured claims to believe

that something innocuous would result from his dangerous

conduct.3    The policy language of exclusion at issue here




     2
        I can only hope that this departure from the general
principle that contracts are to be enforced as written is a
limited one that will not recur. Compare, Wilkie v Auto-
Owners Ins Co, 469 Mich 41, 51; 664 NW2d 776 (2003),
wherein this Court reinforced the “bedrock principle of
American contract law that parties are free to contract as
they see fit, and the courts are to enforce the agreement
as written absent some highly unusual circumstance, such as
a contract in violation of law or public policy.”
     3
       I do not believe that it is possible for Allstate to
disprove Robert’s claimed beliefs regarding the status of
the gun. Allstate could prove that the belief was not
reasonable under the circumstances, but I am unsure how
they could prove that the belief did not in fact exist.
Moreover, the evidence does not support a finding that
Allstate conceded that Robert thought the gun was unloaded.

                                  2

could     not    more     explicitly        preclude    coverage     for    the

intentional or criminal         conduct of an insured.              I believe

it to be the view of those joining the lead opinion that it

would violate an as yet unarticulated “public policy” if an

insurer could by contract preclude coverage under the facts

of   this       case.     Indeed,   the       lead     opinion     (and    its

bastardization of the traditional objective standard that

should be applied here) seems driven by its concern that

“an intentional or criminal act               . . . will almost never be

covered by a policy with this exclusion”.                   My response is

that I am prepared to enforce the contract the parties have

made as written.4

     Insurance          contracts      generally       provide      indemnity

against     injuries       caused   by       “accidents”.          When    they

expressly       exclude     coverage         for     injuries    caused     by


At most, Allstate merely agreed that Robert said he
believed the gun to be unloaded.     Conceding that Robert
made a statement and conceding that his statement was true
are entirely different matters.
     4
       The lead opinion suggests that I conclude that an
intentional or criminal act “will almost never be covered
under a policy with this exclusion”.     I do not.    I do
believe that each case will turn on its facts and that what
is “reasonable” may have to be determined by a trier of
fact.   I am agnostic regarding whether all, a majority or
no cases involving a criminal act are covered under policy
language at issue here so long as the policy language is
given meaning. I will not, as the lead opinion does, ignore
the contract language and “direct the verdict” as a matter
of law by manipulating the traditional objective standard
of review.

                                       3

intentional       or   criminal      behavior     as     determined    by     a

“reasonable person” objective standard, I am prepared to

apply       the   traditional,       unvarnished        objective    standard

Michigan      courts   have    employed     in   assessing     whether      the

injury was “reasonably expected”.

        The   intentional     or    criminal     acts    exclusion    of    the

policy at issue precludes coverage for injuries or damage

“which      may   reasonably    be    expected     to    result”    from    the

intentional or criminal acts or omissions of an insured.

For time out of mind until now, common law courts have

understood the distinction between subjective and objective

standards.5       An objective test assesses what a reasonable




        5
       For an example of           how we have consistently described
the reasonable person               objective standard in Michigan,
Radtke v Everett,    442           Mich 368, 390-391, 501 NW2d 155,
166 (1993) describes the           standard as follows:


             As described by Dean Prosser, the reasonable
        person standard has been carefully crafted to
        formulate one standard of conduct for society:
        The standard of conduct which the community
        demands must be an external and objective one,
        rather than the individual judgment, good or bad,
        of the particular actor; and it must be, so far
        as possible, the same for all persons, since the
        law can have no favorites.
                               * * *
        The courts have gone to unusual pains to
        emphasize the abstract and hypothetical character
        of this mythical person. He is not to be
        identified with any ordinary individual, who
        might occasionally do unreasonable things; he is

                                       4

person   would    have   believed,         while    a    subjective     test    is

concerned about determining what the actual actor believed.

In this context, where all members of this Court agree the

contract requires application of an objective standard, I

contend that what may “reasonably be expected to result”

from   an    insured’s   acts    is    the     conclusion       a     reasonable

person      reaches   after     examining          all    of   the     pertinent

information available to the insured.                    See footnote 5.       The

belief of the insured, on the other hand, is the subjective

conclusion     reached   by     the   insured        armed     with    the   same

information.      While the belief of the insured may be a



       a prudent and careful person, who is always up to
       standard.... He is rather a personification of a
       community    ideal    of    reasonable     behavior,
       determined by the jury's social judgment. The
       chief advantage of this standard is that it
       enables triers of fact to look to a community
       standard rather than an individual one, and at
       the same time to express their judgment of what
       that standard is in terms of the conduct of a
       human being.’ Furthermore, the reasonable person
       standard    examines    the    totality    of    the
       circumstances to ensure a fair result. Hence, the
       reasonable   person   standard    is    sufficiently
       flexible to incorporate gender as one factor,
       without destroying the vital stability provided
       by uniform standards of conduct (Emphasis added;
       internal citation omitted).

     Justice Taylor approvingly cited to this passage in
his concurring statement in Sidorowicz v Chicken Shack,
Inc, 469 Mich 912; 673 NW2d 106 (2003). Thus, his position
in the present case is hard to reconcile with his previous
position regarding the correct application of the objective
reasonable person standard.

                                      5

fact, it is not an ultimate fact6 essential to determining

what may reasonably be expected to result from an insured’s

actions.

     The    lead        opinion       errs      in     using     the     insured’s

subjective belief (purportedly) “as a starting point,” then

insisting     that      the     “objective”          evaluation        proceed   by

determining       whether       a     reasonable       person,     sharing       the

insured’s subjective belief, would expect the same result.

Requiring        that    the        reasonable         person     take      as    a

determinative fact the insured’s subjectively beliefs about

his acts violates every known formulation or application of

the traditional objective standard.                    The majority cites no

authority for its contrary and idiosyncratic formulation of

its “objective” standard.                 It is noteworthy that, in other

contexts,     this      Court       has    expressly     repudiated        similar

efforts to make subjective an objective standard.7

     Thus, it is unclear why (and on what authority) the

lead opinion concludes that a reasonable person should be

required    to    possess       the    same     (and    entirely       subjective)

belief as the insured.


     6
        Black’s Law Dictionary defines ultimate facts as
those “facts essential to the right of action or matter of
defense; facts necessary and essential for decision by
court.”
     7
       See, Radtke v Everett, 442 Mich 368; 501 NW 2d 155
(1993).

                                           6

     As I argued in McCarn I, a reasonable person could

certainly come to a different belief regarding the expected

consequences under the known and undisputed facts of this

case.8   Under the standard announced by the lead opinion, I

cannot   envision   a   single   scenario   where   a    “reasonable

person” expectation could ever diverge from the insured’s

expectation.9   More critically, I am at a loss to determine

any difference, much less a qualitative one,             between the

purported   objective    standard     articulated   in    the   lead

opinion today and the policy exclusion language found to




     8
       It is important to recall that all of the facts and
circumstances known about this shooting were provided by
McCarn’s deposition testimony. McCarn owned the shotgun and
admitted that he did not check to see whether the gun was
loaded before he deliberately pulled the trigger when the
barrel of the gun was one foot away from his friend’s face.
He also admitted to being the last person to use the gun,
and could not recall whether he unloaded the gun on that
occasion because he put the gun away “hot” — hurriedly in
order to avoid being caught using the weapon without adult
supervision. He further admitted to intentionally pulling
the trigger of the gun in an effort to frighten the victim
into sharing crackers. According to the lead opinion, none
of these undisputed facts provided by McCarn himself are
relevant in evaluating how a reasonable person would have
assessed the circumstances of the shooting because it
concludes that the only relevant fact is the insured’s
stated subjective belief that his gun was unloaded.
     9
       Indeed, the lead opinion incentivizes insureds to
manufacture their “beliefs” about insurance controversies
because, no matter how incompatible with the circumstances
or logic, the insured’s belief is the one that must be
assumed by the “reasonable person” when applying the lead
opinion’s so-called “objective” test.

                                 7

require a subjective determination in Metropolitan Ins v

DiCicco.10        There, a policy which excluded damage “expected

or intended from the standpoint of the insured” was found

to require a subjective standard of expectation.11

       I     note     that,    had   the        views    of    the     lead      opinion

garnered majority support, the subjective standard                                would

have        become    the      uniform     standard           for    all       insurance

policies, no matter what language was actually used.                              Under

the standard articulated by the lead opinion, an insurance

company would be required to provide coverage even where,

for example, an insured believes that his gun was magical

and would only play “The Star Spangled Banner” when the

trigger was pulled.             After all, using the insured’s claimed

belief       as   a   starting    point,        no   reasonable        person     would

expect       that     bodily     harm    would       result         from   a     rousing

rendition of our national anthem.12                     I invite those Justices



       10
            432 Mich 656; 443 NW2d 734 (1989).

       11
        Id., 672. Had the policy language in this case been
similar to that found in DiCicco, I might agree with the
lead opinion’s resolution.


       12
        The majority disclaims that its new objective test
is anything novel and that all it is doing is drawing a
“line … between what the insured believed at the point of
the intentional or criminal act and applied it to what a
reasonable person could expect to result from that act.”

                                           8

joining the lead opinion to explain why its analysis today

would permit a contrary result.

     For these reasons, I would affirm the judgment of the

Court of appeals.

                              Robert P. Young, Jr.
                              Maura D. Corrigan




Ante at 11 (emphasis added).       In actuality, the lead
opinion is not considering what a reasonable person would
expect to result from the insured’s act, but the insured’s
stated subjective belief about the consequences of his act.
This is the “Russian Roulette” theory of objective
standards: “if I think the bullet is in another chamber,
I’m covered.”

     Consequently, I see nothing inconsistent with my
hypothetical example (using an insured’s absurd belief that
his gun would play the national anthem when discharged as a
basis for recovery under this policy) and the lead
opinion’s application of its so-called objective standard
to the known facts of this case. Id. And the lead opinion
is especially hard pressed to explain why an insured’s
absurd beliefs should not be given absolute credence when
it applies its version of the objective standard when the
insured says he thought the gun was inoperable, unloaded,
or simply magical.

                             9

