A man and two accomplices participated in an armed robbery at a movie theater. 9-days earlier, in a previous robbery at a restaurant in which two of the three accomplices participated, a restaurant employee was shot and killed by the robbers. During the second robbery at the movie theater, one of the employees of the theater was also shot and killed. The parents of the murdered employee began a wrongful death suit against one of the robbers and his homeowners policy.

The homeowners insurer denied coverage based upon the expected and intended injury exclusion in the policy. The robber appealed contending that the injury was not expected or intended and that prior to he robbery, he and his accomplices had discussed the fact that they were not going to harm anyone at the theater.

The original trial court ruled in favor of the insurer, however, the court of appeals reversed the trial court decision and determined that the exclusion was not applicable because there was no evidence that the robbers expected or intended injury.

The state supreme court reversed the decision of the appeals court and affirmed in favor of the insurer based upon the facts that the robbery/murder accomplices, by virtue of the fact that they carried armed weapons, intended to threaten their victims with physical harm. Although murder was not intended, it was not a surprise to the accomplices. In the judge's statement, it was mentioned that the decision was based upon the fact that the robbers "controlled the loss and . . . fell within the category of risks which both the insurance contract and public policy consider uninsurable."

(Ohio Casualty Insurance Company, Plaintiff-Appellee v. Henderson et al., Defendants-Appellants. Arizona Supreme Court No. CV-96-0396-PR.. May 29, 1997. CCH 1997 Fire and Casualty Cases, Paragraph 6137.)