Expert Commentary
Homeowners Policies
and Acts of Self-Defense
January 2006
| It is everyone's
worst nightmare: an intruder in the home
in the middle of the night. Most of us
would do whatever is necessary to protect
our loved ones and our property from
unwelcome strangers, including acts of
self-defense that may cause injuries or
even death to the uninvited person. |
by R. Brent Cooper & Dana
Harbin
Cooper & Scully, A Professional Corporation
There are other situations in
the home that may also require self-defense, such
as arguments among guests or with neighbors,
resulting in injuries. In that scenario, and
given today's litigious inclinations, it is
likely that the injured party or his/her family
will bring a legal action seeking damages for the
alleged injuries. Are homeowners protected by
homeowners liability insurance for damages that
result from the homeowners' acts of self-defense?
Homeowners liability policies
contain a provision that excludes coverage for
injury or damage caused intentionally by or at
the direction of the insured, often referred to
by the courts as the "intentional injury
exclusion." The courts of various
jurisdictions are equally split as to whether
injuries committed in self-defense are
intentional and expected and thereby excluded by
the intentional injury exclusion in the
homeowners liability policy.1
New York Rules on Wrongful
Death and Self-Defense
The most recent case addressing this issue is Automobile
Insurance Company of Hartford v. Alfred S. Cook,
21 A.D. 3d 1155, 801 N.Y.S. 2d 837 (September 15,
2005), from the New York Supreme Court, Appellate
Division, Third Department. The New York court
was faced with the legal question of whether the
homeowners insurance policy covered the insured
in a lawsuit for wrongful death when the insured
killed a person in self-defense.
Alfred Cook, the insured,
shot and killed Richard Barber after a
disagreement over a business arrangement. Barber
entered Cook's home without permission and,
during their discussions, Cook retrieved his
shotgun. Barber refused to leave Cook's home,
attacked and injured Cook, and then the fatal
confrontation occurred.
Cook was acquitted of
multiple indictments, including murder in the
second degree, based on self-defense. Thereafter,
the administrator of Barber's estate brought a
wrongful death action against Cook, and Cook
sought coverage under his homeowners insurance
policy issued by AIC.
The New York appellate court
first held that the act of shooting another
person, even when done in self-defense, is not a
covered "occurrence" because the act
could not be characterized as accidental, even in
the face of allegations of negligence. Though
unnecessary for the ruling, the court next
examined whether Cook's acts fell within the
policy's exclusion for bodily injury which is
"expected or intended." The court
reasoned that the intentional injury exclusion is
designed to reinforce the liability policy's
coverage clause by reiterating that the bodily
injury or property damage must flow from an
accident and not be the expected result of
intentional conduct. Id. at 840. In that regard,
evidence that Cook intended to injure, but not
necessarily kill Barber, was enough to trigger
application of the intentional injury exclusion.
Other Courts Examine
Intentional Injury
Other jurisdictions have ruled the same in
finding that the intentional injury exclusion in
the homeowners liability policy applies to
injuries that are the result of acts committed in
self-defense. See i.e.,:
Aetna
Cas. and Sur. Co. v. Griss, 568 S.2d
903 (Fla. 1990) (use of deadly force in
self-defense constitutes intentional
conduct causing harm to another within
exclusionary provision of homeowners
policy);
Eubanks
v. Nationwide Mut. Fire Ins. Co.,
195 Ga. App. 359, 393 S.E.2d 452 (1990)
(where insured, who was insane, shot and
killed victim under apparent delusional
misperception of self-defense, neither
his insanity nor the fact that he was, or
thought he was, acting in self-defense
negated intent as matter of law, for
purposes of intentional acts exclusion of
homeowners policy; rather, evidence of
insanity and self-defense entitled
insured to jury determination as to
whether insanity or self-defense negated
insured's intent to injure victims at
time of shooting);
Home
Ins. Co. v. Neilsen, 165 Ind. App.
445, 332 N.E.2d 240 (1975) (intentional
injury exclusion applied to insured's
conduct of striking neighbor in face in
self-defense);
Century
Mut. Ins. Co. v. Paddock, 168 Mich.
App. 747, 425 N.W.2d 214 (1988) (injuries
to victim resulting from actions of
insured and his son in kicking victim for
2 minutes after victim had fallen to
ground were not covered by homeowners
liability policy since (1) injuries were
not brought about by
"accident," but were
foreseeable result of kicking,
notwithstanding insured's contention that
he and his son acted involuntarily in
defending themselves, and (2) kicking
after victims were no longer a threat was
unnecessary for self-defense, and even if
done in self-defense, fell within express
exclusion for intentional acts);
Nationwide
Mut. Fire Ins. Co. v. Mitchell by &
Through Seymour, 911 F. Supp. 230
(S.D. Miss. 1995) (insured's attack on
victim in defense of insured's mother was
not excepted from intentional injury
exclusion in homeowners policy);
Economy
Fire & Casualty Co. v. Iverson,
445 N.W.2d 824 (Minn. 1989) (homeowners
policy containing exclusion for actions
"intended or expected by the
insured" owed duty to defend insured
when underlying tort action based on
shooting victim's complaint alleging
negligence, intentional assault and loss
of consortium; thus, insurer was required
to pay legal costs incurred by insured in
defending tort action up to time that
action was settled; however, insurer had
no obligation to indemnify insured in
connection with settlement agreement
reached in underlying tort action between
insured and shooting victim, in which
agreement insured admitted negligence,
where jury finding of self-defense
extinguished liability on part of
insured).
Of
course, there are just as many courts that have
held that self-defense is an exception to the
intentional injury exclusion in the homeowners
liability policy. These courts take the position
that an injury resulting from an act committed by
an insured in self-defense is not an expected or
intended injury pursuant to the intentional
injury exclusion clause in the homeowners
liability insurance policy. Some courts view the
intentional injury exclusion as designed to apply
only to misconduct or wrongful acts. See:
Walters
v. American Ins. Co., 185 Cal. App.
2d 776, 8 Cal. Rptr. 665 (1st Dist. 1960)
(injury was not "intentional"
under the provisions of a comprehensive
personal liability endorsement in an
automobile liability policy containing a
clause excluding injuries "caused
intentionally by or at the direction of
the insured"; court held that an
element of wrongfulness or misconduct is
connoted by the intentional injury
exclusion and self-defense does not
involve misconduct, so not excluded);
Deakyne
v. Selective Ins. Co. of America,
728 A.2d 569 (Del. Super. Ct. 1997)
(evidence that the insured spotted
trespassers on deck of home late at
night, confronted them in attempt to
protect family, and struck trespasser
with broken bottle only after suffering
injury by him created jury question
whether the insured was acting in
self-defense or was subject to exclusion
of liability coverage for expected or
intended injuries);
Blosser
v. Sentry Indem. Co., 541 So. 2d
1370 (Fla. Dist. Ct. App. 4th Dist. 1989)
(exclusion contained in homeowners policy
for bodily injury or property damage
which was expected or intended by insured
did not, as matter of law, constitute bar
to coverage for act of self-defense, and
trial court erred in granting summary
judgment where record revealed genuine
disputed facts regarding self-defense
claim);
Western
Fire Ins. Co. v Persons, 393 N.W.2d
234 (Minn. App. 1986) (held that trial
court erred in failing to instruct jury
on self-defense as possible bar to
application of intentional tort exclusion
of homeowners liability policy).
The
"Reasonable Force" Exception
As with all coverage disputes, the determination
of whether the intentional injury exclusion
applies to injuries caused by acts of
self-defense depends on the exact wording of the
exclusion and the policy as a whole. Some
liability policies include an exception to the
intentional injury exclusion for "bodily
injury resulting from the use of reasonable force
to protect persons or property." If the
exclusion includes this exception, or one
similar, the intentional injury exclusion will
not apply to circumstances where the insured uses
reasonable force in defending himself, others, or
property. See Glover v. Allstate Ins. Co.,
229 Ga. App. 235, 493 S.E.2d 612 (1997)
(exclusion in family liability provisions of
homeowners insurance policy, excluding damage for
bodily injury or property damage resulting from
any willful act or omission that is a crime
unless such act or omission was for the
preservation of life or property, applied to
preclude coverage for shooting of innocent
bystander by homeowners' child who fired gun in
attempt to apprehend individuals who had
assaulted him while trying to steal his vehicle).
Dana
Harbin is an attorney in the Dallas office of
Cooper & Scully, P.C. where she specializes
in insurance coverage and bad faith involving all
types of insurance policies, both first and third
party. Ms. Harbin earned her BA degree from the
University of Texas in Arlington and her JD
degree from the University of Texas at Austin.
1This is not an
exhaustive annotation of cases that interpret the
intentional injury exclusion in the context of
self-defense, but merely a sampling for purposes
of showing the split in jurisdictions.
Opinions expressed are those
of the author and are not necessarily held by the
author’s employer, RMI or any parties
assoiated with Insurance Solutions. This article
does not purport to provide legal, accounting, or
other professional advice or opinion. If such
advice is needed, consult with your attorney,
accountant, or other qualified adviser.
Source:
IRMI.COM
|
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