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HOW INTENTIONAL MUST IT BE?

HOW INTENTIONAL MUST IT BE?

HOW INTENTIONAL MUST IT BE?
February 21
09:08 2018

William and Eric were arguing about a woman. The argument became heated and eventually physical. William struck Eric, which resulted in Eric’s head hitting the sidewalk. Eric died from the injury and his estate sued William for damages. The Metropolitan Property and Casualty Insurance Company (Metro), his homeowners carrier, refused to respond to the suit and William asked the courts to intervene.

See how the courts ruled.

In May 2010, William Googins and Eric Benson argued after Googins made a comment about a female accompanying Benson. Benson, after being struck in the face by Googins, fell backwards and died when his head hit pavement. Googins served a jail sentence after confessing to and being convicted of aggravated assault.

Upon the Benson Estate suing Googins, the latter admitted that his negligence caused Benson’s death. Googins consented to $400,000 judgment that included a stipulation that the Estate would not seek payment from Googins personally. The judgment was to be paid via Googins assigning his insurance policy rights from Metropolitan Property and Casualty Insurance Company (Metro). Googins was part of his grandmother’s household which was covered by a Metro homeowners policy.

In accordance to the agreement between Googins and the Benson estate, a court granted the $400,000 judgment. The Benson Estate filed an action against Metro to collect the judgment. Metro filed a motion, asking for a ruling that it owed no coverage obligation because its policy excluded intentional acts. The estate filed a cross-motion and it filed an appeal after the lower court ruled in favor of Metro.

The higher court reviewed both parties’ arguments along with considering other cases it felt relevant. In the higher court’s opinion, a coverage obligation existed only if three elements were satisfied. They consisted of a finding that Googins was a resident of the insured household, that the injury had to result from an “occurrence,” and that Googins’ action was not intentional.

The court applied a definition that criminal intent had to apply. In consideration that Googins’ criminal prosecution, confession and other testimony documented his intent to strike Benson, it was irrelevant that Googins argued that he did not intend the resultant death. The court also determined that the lower court appropriately recognized the existence of criminal intent. The lower court ruling in favor of Metro was affirmed.

Metropolitan Property and Casualty Ins. Co., Defendant-Appellee v. Estate Of Eric E. Benson et al., Plaintiff-Appellant Supreme Judicial Court of Maine No CUM-14-492 Filed December 1, 2015. Affirmed. Westlaw 128 A. 3d 1065

Is it the action or the result?

The ISO Homeowners Expected or Intended Injury Personal liability exclusion is very specific. It excludes the act. If the action is intentional, there is no coverage for the resulting injury even if the extent of injury was different from intended and even if the person or property damaged was not the intended target.

Read the PF&M analysis of the ISO Homeowners Personal Liability Expected or Intended injury exclusion.

SECTION II – LIABILITY COVERAGES

  1. Personal liability (Coverage E) and Medical Payments (Coverage F) do not apply to “bodily injury” or “property damage”:
  2. Expected or Intended Injury

There is no coverage for any injury an “insured” expects or intends

Example: Scenario 1: Your client’s 18 year old son (who meets the definition of an “insured”) and the next door neighbor’s son have been fighting for some time now. One night, while the neighbors are away, your client’s son sneaks over to the neighbor’s house and breaks all of the windows. Upon finding out, you are in a hurry to make amends to the neighbor and give him/her the number of your insurance company. Unfortunately, since your son intended the damage, there is no coverage under your homeowner’s policy.

Related Court Case: “Porch Brawl Triggers Coverage Dispute”

Intentional acts are excluded EVEN if the property damage or bodily injury is different in the kind or degree than what an insured hoped or expected would occur, or it is suffered by a different party or property than what an insured either expected or hoped.

Example: Scenario 2: Your client’s 18 year old son (an “insured”) and the next door neighbor’s son have been fighting. Again, during the night, your client’s son sneaks over to the neighbor’s house and breaks all of the windows. The son is shocked when he later finds out that one of the rocks he used to break a window also broke a person’s skull. Your client files a claim since your son NEVER intended to hurt ANYONE. Unfortunately, although the son testifies that he did not mean to harm any person, there is no coverage since the loss originated from an intentional action.

There is an important exception to this exclusion. When bodily injury or property damage results from an insured acting to protect persons or property, the loss is covered IF it only involved use of reasonable force.

Example: Scenario 3: Your client’s 18 year old son (an “insured”) comes home in time to see some stranger climb out of the next door neighbor’s window with a large bag. The son tackles the person who, in the fall, suffers a broken arm and a severely bruised forehead. It turns out that the “stranger” was the owner of the home. He was coming out the window because he lost his key to his home’s double-door deadbolt security locks. The enraged neighbor sues your client for his injuries. Although the client’s son FULLY INTENDED to stop a person he thought was a thief, the claim was a result of an attempt to protect property; so the insurance policy would respond to the loss.

Note: The 05 11 added property damage coverage to the exception. Prior editions covered only bodily injury. So in the example above any property damage caused when the 18 year old son tackled his neighbor is also covered.

Identifying coverage gaps

The expected and intended injury exclusion is a serious coverage gap that cannot be covered by insurance, but there are other exclusions in a policy that can be filled. The only problem is that those gaps are often not realized until after a loss. The Producer’s Personal Lines Risk Evaluation System Questionnaire can help locate some of those gaps much earlier in the process and allow the insured to make an informed coverage decision.

Review the Producer’s Personal Lines Risk Evaluation System Personal Liability Questionnaire.

Type

Breed Age

Weight

Gender (M or F)

Neutered/Spayed (Y/N)

Is any of the following outdoor equipment on the premises?

  • Trampolines ___ Yes ___ No

If yes, provide the diameter of each trampoline. ___________ 

  • Playground Equipment ___ Yes ___ No

If yes, provide the height of each separate item. _____________ 

  • Tree House ___ Yes ___ No

If yes, provide the height and dimensions. ______________ 

  • Swimming Pool ___ Yes ___ No

 

If yes, complete the swimming pool supplement.

 

Do activities that regularly involve non-family members take place at the residence?

___ Yes ___ No

If yes, describe.

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

Do any household members host a blog, group forum, or other type of Internet activity that goes beyond individual/personal usage?
___ Yes ___ No

Are there bodies of water (such as rivers, creeks, lakes, or ponds) on the premises?

___ Yes ___ No

If yes, describe the exposure and any protection that surrounds it.

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

Are any other features of the applicant’s property unusually appealing yet dangerous for
children or adolescents? ___ Yes ___ No

If yes, describe the feature and measures to limit or prevent access to it.

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

OFF-PREMISES EXPOSURES

What are the occupations of household members?

 

Name

 

Occupation

 

Name

 

Occupation

List all organizations where household members take active roles as unpaid volunteers. Describe their job duties.

 

Name

 

Organization

 

Job Duties

Does the organization provide liability and directors and officers liability coverage for its volunteers?

Does any applicant act as a trustee or executor of an estate? ___ Yes ___ No

If yes, answer the following questions:

 

Does the trust or estate provide a bond and other insurance for the applicant’s benefit?

___ Yes ___ No

Describe the trust or estate property.

______________________________________________________________

______________________________________________________________

______________________________________________________________

 

CONTRACTS

Does the applicant hire others for construction projects, landscaping, housekeeping, babysitting,etc.?

___ Yes ___ No

If yes, answer the following questions.

 

Is there a written contract? ___ Yes ___ No

Does the contractor provide a certificate of insurance for work it performs?

___ Yes ___ No

DOMESTIC HELP

Does the applicant employ domestic help? ___ Yes ___ No

If yes, answer the following:

List the name of each individual, the duties performed, if the individual lives on premises, and the number of hours the individual works per week.

 

Name

 

Duties performed

 

Live on premises? (Y/N)

 

Hours worked per week

Does the applicant purchase workers compensation coverage?

If yes, list the carrier’s name and the policy period.

______________________________________________________________

______________________________________________________________

VACANT LAND

Does the applicant own vacant land? ___ Yes ___ No

If yes, list the vacant land’s location or legal description, a description of it, and its total acreage.

 

Location/Legal Description

 

Description

 

Total Acreage

 

Finding and filling a coverage gap

Having the client complete a questionnaire is only the first step. The second is reviewing it in order to identify coverage gaps. The third is letting the client know what exposures have been recognized as a potential gap and offer that client solutions.

POINTING OUT UNINSURED SITUATIONS

Dear [Name]:

Because our clients’ insurance protection is of primary importance to their financial security, we periodically review our clients’ coverage. With this in mind, we call the following to your attention: [Insert description of an apparent uninsured or underinsured condition.]

We sincerely hope you feel, as we do, that this is worthwhile [additional] protection for you to consider.

We would appreciate a chance to discuss this need in more detail. Would you please share a date and time that it would be convenient to contact you on the enclosed return card? When we contact you, we’ll be prepared with the facts and figures necessary for you to make an informed decision.

Sincerely,

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