Intentional Acts, Insurance Claims & Exclusions

Insurance Requires a Fortuitous Act

In Automobile Insurance Co. of Hartford v. Cook,[1] the court was faced with the legal question of whether an individual’s homeowner’s insurance policy affords coverage when that individual is sued for wrongful death after killing a person in self-defense. On February 20, 2002, defendant Alfred S. Cook shot and killed Richard A. Barber after a disagreement over a business arrangement spun out of control. The decedent had entered Cook’s home without permission. During their discussions, Cook, armed with a handgun, retreated to his bedroom to retrieve a 12-gauge shotgun and then returned to the living room, where the fatal confrontation occurred.

Cook was indicted for a number of crimes, including murder in the second degree, stood trial, and was acquitted on all counts of the indictment. The jury concluded in the criminal case that the prosecution failed to prove beyond a reasonable doubt that the 120-pound Cook did not have legal justification for shooting the 360‑pound decedent, who had previously attacked and injured Cook after he refused to leave Cook’s home.

Finding no coverage, the majority held there was no possible interpretation other than that the acts were intentional.

In a case where “the policy language does not refer to an intentional act but, rather, contains an exclusion that applies to ‘assault and/or battery committed by any insured * * * or any other person.’ Application of the exclusion does not depend upon the perpetrator's mental state or whether [injured person] was the intended victim.”

When the perpetrator was convicted of battery on the claimant the exclusion applies regardless of the perpetrator’s mental state.[2]

In 1978, the California Supreme Court in Clemmer v. Hartford Insurance Co.⁷¹ dealt with a shooting that resulted in the death of the victim.

Regardless, it still led to a finding by the Supreme Court of California of a need for defense and indemnity. The court concluded that Hartford had no duties with regard to Dr. Lovelace’s intentional acts in the killing of Dr. Clemmer but was obligated to defend him. If there was a finding of nonintentional conduct in the shooting, however, it would be obligated to defend and its refusal to do so was wrongful.

One of the most extreme situations where an insured almost got coverage for an intentional act occurred in State Farm General Insurance Company v. Patrick Frake et al.[3] The California Court of Appeal reversed a trial court by concluding that an intentional act that causes injury, whether the injury itself was intended by the actor or not, is not an “accident” nor an “occurrence” as those terms are used in a liability insurance policy. It thus concluded that the insurer neither owed defense nor indemnity.

Under California law, the word “accident” in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured. The term “accident” refers to the nature of the conduct itself rather than to its consequences. The insured’s subjective intent is irrelevant.

In cases where an intentional act is substantially certain to cause injury, determination of an insured’s subjective intent, or lack thereof, is not conclusive with regard to coverage. Rather, an insured’s protestations that he or she didn’t mean to hurt anyone are only relevant where the intentional act at issue is not substantially certain to result in injury.[4]

An intentional act exclusion applies only where the insured acts with the specific intent to cause bodily harm. [State Farm Fire & Cas. v. Wicka, 474 N.W.2d 324, 329 (Minn.1991); Woida v. North Star Mut. Ins., 306 N.W.2d 570, 573 (Minn.1981).] Coverage is precluded by such an exclusion only where the insured intends to cause harm, not merely where the insured generally intends the act. [German Mut. Ins. Co. v. Yeager, 554 N.W.2d 116 (Minn. App. 1996)]

Bad people do bad things. Forcing a woman to have an abortion; beating that woman, and imprisoning her while threatening to kill her mother, cut off her fingers and force her to act against her doctor’s recommendations are all intentional and abusive conduct that is excluded by almost every policy.

An insured's protestations that he “didn't mean to hurt anyone” are only relevant where the intentional act at issue is not substantially certain to result in injury. [Allstate Ins. Co. v. Campbell, 128 Ohio St.3d 186, 942 N.E.2d 1090 (Ohio 2010)]

Even after pleading guilty to a domestic abuse crime, Nikos Hecht had the unmitigated gall to sue his insurer for not providing a defense and indemnity brought against him by the abused woman. In Nikos Hecht v. Great Northern Insurance Company, d/b/a Chubb, No. 18-1244, United States Court of Appeals for the Tenth Circuit (April 18, 2019)

Hecht had pleaded guilty to domestic abuse, an act that was proved beyond a reasonable doubt. The actions of Hecth were clearly and unambiguously excluded. The allegation of Warfel’s complaint, although it claimed some of Hecht’s acts were negligent, the use of a Mexican nurse practitioner to attempt an abortion, those acts were totally intertwined with the abusive and intentional acts so that the negligent acts were part and parcel of the intentional criminal conduct.

Assaults, given their intentional nature, would seem never to constitute an occurrence under a general liability policy. However, courts have adopted two divergent positions as to from whose perspective the assault is to be viewed in determining whether it constitutes an “accident.”

Some courts have held that this determination should be made from the standpoint of the injured party, while other courts have held that the determination must be made from the standpoint of the assailant, who is often—but not always—the insured.

For example, the Wisconsin Supreme Court, in Schinner v. Gundrum,[5] concluded that when an insured is seeking coverage, the determination of whether an injury is accidental under a liability insurance policy should be viewed from the standpoint of the insured.

The court found that Gundrum’s actions in setting up an isolated shed for a drinking party, procuring alcohol and expecting others to bring alcohol, inviting many underage guests to the party, and encouraging the underage guests to drink—especially an underage guest known to become belligerent when intoxicated—were intentional actions that violated the law.

Gundrum’s many intentional wrongful acts were a substantial factor in causing the plaintiff’s bodily injury. Viewed from the standpoint of a reasonable insured, Gundrum’s intentional actions created a direct risk of harm resulting in bodily injury, notwithstanding his lack of intent that a specific injury occur. Thus, the bodily injury was not caused by an “occurrence” within the meaning of the policy, and West Bend was not obligated to provide insurance coverage for Gundrum.