Summary: Commercial liability forms (e.g., the commercial general liability coverage form, or the CGL form) and personal liability forms (e.g., the homeowners policy) have long contained a provision excluding from liability coverage claims for "bodily injury" and "property damage" expected or intended by the insured. However, there is no consensus concerning the meaning of this phrase; courts have applied a variety of definitions and tests to determine whether liability coverage for the injury or loss should be excluded. This discussion analyzes the various issues concerning the interpretation of this phrase.
Topics covered:
Various Approaches to Interpretation
If the insured acts with the specific intent to cause some injury, harm, or damage, the exclusion applies. This seems simple enough and is accepted by the majority of courts. Any discussion of or contention with this rule centers around the issue of whether the harm actually caused was of a different type or of a more serious nature than was intended by the insured-actor.
If the act is intentional and results in injury which is a natural and probable consequence of that act, the exclusion applies without regard to whether or not some harm was intended. Some courts follow this legal doctrine of tort law. Others reject this rule as being inapplicable to the interpretation of contemporary general liability insurance policies.
If the insured acted with a specific intent, but did not intend to produce the specific damage that resulted, the exclusion does not apply.
Furthermore, the question of whether the insured acted intentionally can be affected by factors such as intoxication and an assertion that he was acting in self defense.
Note that vicarious liability, such as parental liability for acts of minor children or an employer's liability arising out of an act of an employee, is exempt from the exclusion. The severability of interest principle (now, the separation of insureds clause) provides that each insured is treated separately and since the incident causing injury or damage is (presumably) not expected or intended from the standpoint of the vicariously liable party, that separate party is not affected by the exclusion.
Are "Expected" and "Intended" Synonymous?
Liability policies were rewritten during the 1960′s to include the term "expected" in an effort to broaden the exclusion to include foreseeable results. Most of the courts around the country have not considered the question of whether the terms "intended" or "expected" are synonymous. However, the following cases are examples of courts that have addressed this question, with the first case representing the majority viewpoint.
In the 1986 Pennsylvania superior court case of United Services Automobile Association v. Elitzky, 517 A.2d 982 (Pa. Super. 1986), the court decided that the terms are synonymous. The case involved allegations of malicious defamation and intentional infliction of emotional injury arising out of letters written by the insureds concerning the conduct of a judge in a proceeding in which they were involved. The court stated that if "expected" were defined differently than "intended," the exclusion might be misapplied to acts caused by mere negligence if a jury could be persuaded that the injury was to be "expected" under the facts and circumstances of the case. Since protection in the event of one's negligence is the very reason that insurance is purchased, the court refused to differentiate between the terms.
In contrast, a Missouri court of appeals, in the case of Farm Bureau Town & Country Insurance Co. of Missouri v. Turnbo, 740 S.W.2d 232 (Mo. App. 1987), determined that the terms applied to situations that required different standards of proof. In this case, the insured had a fight with another man. He pleaded guilty to criminal assault, a charge that alleged that he "recklessly" caused physical injury. The decision stated that, "Intend means the insured desires to cause the consequences of his act or believes the consequences are substantially certain to result. Expect means the insured realized or should have realized there was a strong probability the consequences in question would result from his acts." Since this definition of "expect" squared with the definition of "reckless" approved of by the court, the insured's acts were excluded from coverage. Thus, the Missouri court applied the exclusion to the insured's negligence, as the Pennsylvania court had declined to do.
(Note though, that most observers believe this case from Missouri was implicitly overruled when the Missouri Supreme Court rejected the contention that a showing that the insured was reckless compels a finding that the insured expected the resulting injury; this was the finding in American Family Mutual Insurance Company v. Pacchetti, 808 S.W.2d 369 (Mo. 1991). The Supreme Court in this case did not explicitly overrule the Turnbo decision, but the implicit overruling is accepted. However, it must be said that the court's main point was that it remained a duty for insurers to show that the particular insured against whom a claim is brought expected or intended the result that occurred. As for the difference between "expected" and "intended," the Missouri Supreme Court said, "It may be argued that by using two words, different meanings were indicated. There are many suggestions of a shade of difference in the meaning of the two terms. Whether the insured expected or intended injury, however, is essentially a question of fact.")
The Issue of Intent is Important
In those jurisdictions following the rule that the exclusion will apply if any intent to harm is shown, even if the type or magnitude of the resulting harm is greater than intended, it is still imperative that intent be shown. These courts do not allow mere "foreseeability" of harm to preclude coverage, even if the act involves foreseeable consequences of great harm, or amounts to gross or culpable negligence.
For example, one federal appeals court, applying Florida law, found that there was a genuine question as to the insured's intent to harm his friend when he shot at him with a BB gun and accidentally struck him in the eye instead of on his chest. The insured was following his friend's instructions as to the use of the gun and the friend apparently had no fear of being harmed by serving as the target, even though the insured had shot him once before the accident and he had exclaimed that it "hurt." The case was sent back for trial on the issue of intent. This case is Allstate Insurance Co. v. Steinemer, 723 F.2d 873 (C.A. Fla. 1984).
It should be noted that many jurisdictions allow a presumption of intent to be inferred from the nature of certain acts, such as sexual assault upon a minor. For example, a federal appeals court applying California law found that an accomplice to a kidnapping and rape of a minor, while perhaps not participating in the rape, could still be presumed to have intended harm by aiding and abetting the assault, thereby precluding insurance coverage for his liability; the case is State Farm Fire and Casualty Co. v. Bomke, 849 F.2d 1218 (C.A. Cal. 1988). Also, in American Family Mutual Insurance Company v. Purdy, 483 N.W.2d 197 (S.D. 1992), the South Dakota Supreme Court stated that an insured's acts of sexual contact with children were of such a nature that the intent to inflict bodily injury was inferred as a matter of law; the exclusion based on injury either expected or intended applied as a bar to coverage in this case. In this case, the South Dakota Supreme Court noted that the majority of jurisdictions that have addressed this issue have held that through the very nature of acts of sexual contact or rape, injury is either inherent or the intent to injure will be inferred as a matter of law; the state-by-state examples were then listed.
These latter two cases are examples of the inferred intent rule that raises a conclusive presumption of the insured's intent to harm the victim, regardless of the insured's assertions of a subjective lack of intent to harm. The intent to harm is inferred as a matter of law from the actual commission of the act. And, because it operates as a conclusive presumption of intent to harm, application of the rule automatically precludes insurance coverage.
Resulting Harm Different Than That Intended
Courts have taken varying positions on whether there is coverage for an insured who intended some type of harm or property damage, but whose act resulted in greater harm, or harm that was different from that which was intended. For example, an insured might punch another person in the nose, the blow causing the other party to fall and strike his head, resulting in severe head injuries. The insured intended to throw the punch and could expect that some sort of damage would be done—thereby precluding coverage for expenses related to a broken nose or eyeglasses—but the insured never intended to cause brain damage and did not expect the other person to strike his head in the fall.
A case with this element is State Farm Fire and Casualty Co. v. Worthington, 405 F.2d 683 (C.A. Mo. 1968). The insured fired a shotgun in the direction of several boys whom he thought were stealing his watermelons. One of the boys was killed and his parents recovered a judgment against the insured. The United States eighth circuit court of appeals found that while the discharge of the gun by the insured was intentional, the fatal wounding of the boy was accidental. The result was therefore unintentional and the insurer was held liable. The court stated that "the insured…is not profiting from his own crime in this case…The most that can be said on the profit issue is that [the insured] is attempting to shift liability for the judgment against him for wrongful death to his insurance carrier, but this is a liability that properly belongs to the carrier if the killing was in fact accidental."
In State Farm Fire and Casualty Co. v. Groshek, 411 N.W.2d 480 (Mich. App. 1987), a Michigan appeals court found that an insured was not covered when he struck another man from behind with a branch, even though he may not have intended the extent of harm caused and believed himself to be defending his girlfriend. The insured was called to his girlfriend's house because she feared that she would be sexually assaulted by her former boyfriend who was about to visit her and who had previously raped her. When the insured arrived, he saw the man and woman standing near each other. He picked up the branch, hit the man from behind, inflicting extensive injuries, and fled. The court ruled that whether viewed objectively or subjectively, the insured, at a minimum, expected his victim to sustain some injury, and thus the injury that did result was the "natural, foreseeable, expected and [the] anticipatory result of [the insured's] intentional act." Furthermore, the court stated that by pleading guilty to the criminal charge of felonious assault, the injured party had established the necessary intent or expectation to make the exclusion apply.
A case using this approach was Riverside Insurance Co. v. Wiland, 474 N.E.2d 371 (Ohio App. 1984), in which an Ohio court of appeals determined that "[r]eading the [exclusionary] clause strictly, it must be read to exclude only expected or intended injuries, instead of expected intentional acts, because there is no reference made to the insured's acts." In other words, it is not sufficient to show merely that the act was intentional; the insurer must show that the intent to injure existed in order to apply the exclusion.
In another Ohio case, Physicians Insurance Company v. Swanson, 569 N.E.2d 906 (Ohio 1991), the state Supreme Court stated that "to avoid coverage under the expected or intended exclusion, the insurer must show that the insured's act was intentional and he expected or intended the injury itself"; the insurer had to demonstrate that the injury itself was expected or intended. The rationale for this holding, the court said, was twofold: first, the plain language of the policy is in terms of an intentional or expected injury, not an intentional or expected act; were the court to allow the argument that only an intentional act is required, it would in effect be rewriting the policy. Second, as many cases show, many injuries result from intentional acts, although the injuries themselves are wholly unintentional. The Ohio Supreme Court also noted that its interpretation is consistent with the majority rule that has emerged from the case law on this issue in other jurisdictions; cases from Pennsylvania, Florida, Idaho, Georgia, and Massachusetts were listed as examples.
However, note that in a 1986 Pennsylvania case, the Superior Court of Pennsylvania specifically rejected the Riverside Insurance opinion. In United Services Automobile Association v. Elitzky, 517 A.2d 982 (1986), the court rejected the view that intent means specific intent to cause the precise injury that did occur. Such an approach would reward wrong-doers by affording them insurance coverage just because their plans went slightly awry. The court stated that the Riverside court's approach prevents difficulties of proof since an insured would be entitled to coverage unless he admitted that he intended the precise injury that occurred, and human nature casts doubt that such testimony would be forthcoming.
Intentional Act—Probable Consequence
The cases in the previous section employ the "specific intent to injure rule." In opposition to this is the "natural and probable consequences" test. This latter test holds that where an intentional act results in injuries that are a natural and probable result of the act, the injuries are intentional and therefore, the intentional injury exclusion is applicable. An example of the natural and probable rule can be seen in Harris v. Richards, 867 P.2d 325 (Kan. 1994), wherein the Kansas Supreme Court expressly rejected the specific intent approach. In Harris, the court was faced with a suit based on the insured shooting two shotgun rounds into the back window of a pickup; the claimant said that the insured was trying to shoot the insured's ex-wife and that he, the claimant, was shot by accident. The Kansas Supreme Court rejected the claimant's position and said that the "uncontroverted facts in the case show that the insured fired two shotgun blasts into the cab of the pickup when he knew it was occupied. The claimant's injuries are to be viewed as the natural and probable consequences of the insured's act". Therefore, the liability provision in an insurance contract excluding coverage for injuries expected or intended from the standpoint of the insured excluded coverage for the claimant.
Another case using this rule is Casualty Reciprocal Exchange v. Thomas, 647 P.2d 1361 (Kan. App. 1982), in which a Kansas appeals court found that showing the act of firing a gun at the victim was intentional (without any explanation that harm was not intended) was sufficient for the exclusion to apply. The insured was angry at a group of young people who were having a party in a nearby house, some of whom had driven their cars across his yard. He called the police and told an officer that the next time one of the partygoers drove across his yard, he would take care of it himself and then call the police. The officer left. One young man pulled his car back into the insured's driveway to let another person from the party pass, whereupon the insured, outraged, yanked the car door open, struck the man with a pistol, and then held it to his temple. Another young man from the party came up to see what was happening, but kept his distance. Nevertheless, the insured aimed at this second young man and shot him. The court stated, "Under these facts, to say that the act of aiming and firing the gun was intentional, but the injury was not, draws too fine a distinction. The better rule is that where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional."
Other courts have specifically rejected this rule and have stated that the insured's subjective intent must be determined in order to rule on whether the exclusion applies. In Farmers Insurance Group v. Sessions, 607 P.2d 422 (Idaho 1980), the Supreme Court of Idaho sent a case back for trial on the issue of intent even though the insured had committed an intentional act that had resulted in bodily injury and property damage. The insured went to dinner with his wife at a tavern. Service was poor and the insured became angry. He complained to the manager, and they had a heated exchange. As the insured and his wife were leaving the tavern, the manager made an insulting gesture. The insured shoved a tray of drinks off the bar and threw a bar stool and left. The court said, "[I]t is insufficient to bring the exclusionary provision into operation if admitting there was an intentional act, the injury itself was not intentional but was merely negligent or an inadvertent result of the original intentional act. Thus if [the insured] acted intentionally toward another person and secondarily injured [the manager], or if he intended only to throw the barstool and the glasses at, but not specifically to injure [the manager], the insurance company remains liable under the terms of the policy." The court also stated that it did follow the rule that once some intent to cause harm was shown, then the exclusion would apply even if the resulting damage or injury were greater than anticipated.
In Queen City Farms, Inc. v. The Central National Insurance Company of Omaha, 827 P.2d 1024 (Wn. App. 1992), a court of appeals in Washington also accepted the subjective standard, stating that "coverage would be precluded only if the insured subjectively expected and intended to cause the damage that occurred." This court went on to say that "even gross negligence or willful and wanton conduct may be covered where there has been no actual intent to injure."
Injury Inflicted in Self Defense
The question has sometimes arisen as to whether injuries inflicted in self-defense or to protect property are excluded from liability coverage. This question should be resolved in the current CGL form, wherein it is provided that the expected or intended exclusion does not apply "to bodily injury resulting from the use of reasonable force to protect persons or property." The current homeowners policy also provides a similar exception to the expected or intended injury exclusion and even includes an exception for property damage resulting from the use of reasonable force. Of course, this begs the question of what "reasonable force" is, but that issue is handled on a case by case basis with the facts of each situation brought out for the jury to hear.
In any case, the following cases are presented for some guidance in this area.
In Fire Insurance Exchange v. Berray, 694 P.2d 191 (Ariz. 1984), two persons involved in an argument over a pool room bet exchanged words at an intersection and "agreed to pull into a vacant service station to further discuss their disagreement." As the insured stepped from his vehicle, he was assaulted by the other party and hit several times. He managed to reach into his vehicle, obtain a gun, and warned the other party to keep away. When the other person took a step toward him, he fired, severely wounding the person.
The wounded party brought a lawsuit against the insured. The insured was covered for liability under a homeowners policy, but the insurer denied coverage based on the intentional injury provision. A trial court entered summary judgment in favor of the insurance company, but this decision was reversed on appeal. The Arizona Supreme Court reviewed the case and upheld the appeals court's decision. The Supreme Court stated that the intentional injury provision does not apply when an insured acts in self-defense or with other legal justification, saying, "In such cases, the question of intent must be resolved by a determination of the basic purpose or desire underlying the insured's conduct." The court agreed with the appeals court's assessment that "an act committed in self-defense should not be considered an intentional act within the meaning of the exclusion. . . . While the act of shooting a person in self-defense is intentional in a narrow sense, in a broader sense it is not. One confronted with the need to defend himself has had the situation thrust upon him and matters have progressed to a point where action is the only resort. There is a close similarity between such a circumstance and events that we think of as conventional accidents."
On the other hand, in Aetna Casualty and Surety Company v. Griss, 568 So. 2d 903 (Fla. 1990), the Florida Supreme Court declared that the use of deadly force in self-defense was intentional conduct causing harm to another and was within the scope of a policy exclusion from coverage of intentional acts. It should be noted that the court stated that it was aligning itself with the majority of jurisdictions in holding that self-defense is not an exception to an insurance policy's intentional acts exclusion. An insured should be aware of this point if his or her liability policy does not clearly make self-defense an exception to the expected or intended exclusion.
The Florida Supreme Court's ruling can be questioned on at least two grounds. First, current liability policies themselves allow an exception for self-defense, so how can a "majority of jurisdictions" hold that self-defense is not an exception to the exclusion? Perhaps, the Florida court and the other jurisdictions dealt with insurance policies that do not have the self-defense exception language. Second, the Florida court may have made its decision based on the use of deadly force, considering this to not be "reasonable force" as the liability policy requires. In any case, as noted previously, what "reasonable force" is and whether the exception applies has to be decided on a case by case basis.
In a New Jersey Supreme Court case, Burd v. Sussex Mutual Insurance Co., 267 A.2d 7 (N.J. 1970), the insured inflicted shotgun wounds on his friend. The insured was drunk and wandering around his house with loaded weapons when the friend arrived after being called to come and help by the insured's wife. The friend was shot after the insured fired into the dark. The insured was convicted of the criminal charge of atrocious assault and battery. The victim then brought an action for damages, and the insurer refused to defend or indemnify the insured. The victim won his claim for damages and the insured sued his insurer to recover the amount of the judgment and his defense costs.
The court stated, "We could not say…that the conviction must be accepted as a finding that the injuries were intentionally inflicted within the meaning of the policy exclusion. With respect to voluntary intoxication, the public policy considerations applicable to a criminal prosecution are not decisive as to liability insurance coverage…The burden is the carrier's to bring the case within the policy exclusion…Thus, as to intoxication, although in the criminal trial the jury was instructed that it was the defendant's burden to prove and persuade that he was so intoxicated as not to be able to form the intent to commit the atrocious assault and battery, here the burden would be the carrier's to prove and persuade that the injuries were within the exclusion…." The court sent the case back for further proceedings in light of its determination on the issue of intent.
In Long v. Coates, 806 P.2d 1256 (Wn. App. 1990), a court of appeals in Washington found the reasoning in the Burd case persuasive. The court said that the intentional injury exclusion did not bar coverage because the insured was so intoxicated at the time of inflicting the injury that he did not have the mental capacity to form an intent to commit the act in question. Indeed, the court stated that "the majority of other jurisdictions that have considered this question have held that for purposes of invoking the exclusionary clause, intoxication may negate an insured's mental capacity to form an intent."
In contrast to these two cases is a Georgia appeals court decision wherein the court refused to overturn the trial court's finding that the insured, a fourteen-year old boy, acted with intent when he and a companion destroyed a store by setting fire to it; the case is Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 268 S.E.2d 397 (Ga. App. 1980). The court stated, "There was…no error in failing to grant [the insured's] motions for…new trial on the ground that due to his intoxication [he] was incapable of the requisite intent or expectation so as to exclude a harm resulting from his acts from insurance coverage. This issue was submitted to the jury and decided adversely to the [insured]."
Many courts have held that as a matter of law, an insane person cannot intentionally cause injury as excluded in insurance policies. A case that refused to go quite that far was Rajspic v. Nationwide Mutual Insurance Co., 718 P.2d 1167 (Idaho 1986). The Idaho Supreme Court determined that although the victim of a shooting by a mentally ill woman had recovered damages because insanity was not a defense to the intentional tort of assault and battery, this decision did not determine whether the insured acted intentionally within the meaning of the insurance policy. The insurer, at a trial on the policy issue, would be required to establish that the insured had the necessary intent, despite her mental illness. The court asserted, "To hold that a mental defect is irrelevant for purposes of determining whether an act is intentional is inconsistent with long-standing principles and policy considerations of insurance law. Exclusionary provisions are to be strictly construed against an insurer…Furthermore, to deny coverage for acts caused by an individual lacking the mental capacity to act rationally is inconsistent with a primary purpose for incorporating intentional act exclusions into insurance policies, i.e., to preclude individuals from benefiting financially when they deliberately cause injury."
The "occurrence" definition and the requirement in the insuring agreement that the injury or damage must be caused by an occurrence are part of the current homeowners policy; these items are also part of the current CGL coverage forms. Now, some courts interpret these items as being more restrictive with respect to deliberate acts with unexpected injurious consequences than the expected or intended exclusion, and may even make the exclusion extraneous.
For example, in Continental Insurance Co. v. Hodges, 534 S.W.2d 764 (Ark. 1976), the Arkansas Supreme Court held an insurer was not obligated to defend or pay any judgment rendered against an insured in an action brought because of the insured's channeling of surface water—with no harmful intent—onto another person's property, damaging crops and property. The water was used to irrigate the insured's rice crop, and after use was drained into a small ditch that crossed the other party's property. The ditch was inadequate to drain the land.
The court ruled for the insurer, saying that the insured could have reasonably foreseen the damage that would be caused by draining the rice field into the inadequate drainage ditch. The court held an occurrence was an accident, and that an accident is "an event that takes place without one's foresight or expectation—an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected. The damages could not have taken place without foresight or expectation and did not involve any negligence on the part of the [insureds]. Nor can it be said that the damages proceeded from an unknown cause or were an unusual effect of a known cause." Subsequently, the damage was not caused by an accident and there was no coverage.
In Safeco Insurance Co. v. Dotts, 685 P.2d 632 (Wn. App. 1984), a Washington appeals court ruled that the death of a person that resulted after the insured had deliberately slapped him did not constitute an "occurrence" (meaning an accident), even though the result was unexpected or unforeseen. The insured had gone to visit his girlfriend in the early morning. She did not answer the door and he crawled into her home through the bedroom window. He found his girlfriend with another man, whom he "backhanded" in the face with his open hand. The victim left the premises, seemingly unaffected by the slap, but he later lapsed into a coma and died. The court determined that the intentional act was deliberate, therefore the result was not an accident and the court had no need to go into further analysis as to whether particular policy exclusions applied.
In a more recent case, Fire Insurance Exchange v. Rosenberg, 930 P.2d 1202 (Utah App. 1997), a court of appeals in Utah clarified the thinking on this subject by mentioning the Dotts case and noting that the Washington appeals court said that "an accident is never present when a deliberate act is performed, unless some additional unexpected, independent, and unforeseen happening occurs which produces or brings about the result of injury or death." However, the Utah court added, the holding in this case did not stand for the proposition "that any injury caused by an intentional act cannot be an occurrence under the policies …. Under the facts and circumstances of this case, as a matter of law, there was no occurrence."
The important point to take from this case then—and perhaps the other ones in this section—is that sweeping statements to the effect that, any injury caused by an intentional act is not an occurrence and is excluded from coverage under a liability policy, are not accurate. The facts and circumstances of each case have to be reviewed for a proper interpretation of insurance policy language, especially when it comes to the application of exclusions.
Incidentally, for more information on the meaning of "occurrence," see Occurrence-What is it, and when does injury occur?
Originally published May 14, 2011
Reviewed October 31, 2020