A Person Can Be Injured Both Intentionally and Accidentally
When trying to avoid the obligation to defend or indemnify an insured it is necessary to first conduct a thorough investigation and complete discovery to avoid all potential for coverage. Even when an insured is convicted of criminal conduct it is not enough of the suit alleges more than one cause of injury.
In State Farm Fire And Casualty Company v. Chauncey McCabe et al., and Rebekah Haschytz, 2018 NY Slip Op 04416, 525662, Appellate Division of the Supreme Court of the State of New York (June 14, 2018) the defendant Chancey McCabe appealed from an order of the trial court, Supreme Court (Hoye, J.), entered April 26, 2017 in Fulton County, which granted plaintiff’s motion for summary judgment.
On August 9, 2014, defendant Rebekah Haschytz (hereinafter defendant) was visiting her then-boyfriend, defendant Chauncey McCabe (hereinafter McCabe), at a residence owned by his mother, defendant Rosemary McCabe. McCabe physically assaulted defendant, including strangling her with a rope and hitting her head. Based on allegations related to this incident, McCabe was convicted after a criminal jury trial of assault in the first degree, strangulation in the first degree and criminal possession of a weapon in the fourth degree.
Rebekah commenced a personal injury action against McCabe and his mother alleging, among other things, that McCabe negligently rendered defendant partially incapacitated and that, after she was in this state, she tripped and fell due to a defective condition on the property. Plaintiff, which had issued a homeowner’s insurance policy covering the residence and both McCabes as resident insureds, disclaimed coverage as to McCabe only because the injuries sustained by defendant did not arise out of an “occurrence,” which is defined in the policy as an accident, and because those injuries fell within an exclusion for intended injuries or willful and malicious acts.
To resolve the coverage dispute, plaintiff sued seeking a declaration that it owed no duty to defend or indemnify McCabe. The trial Court granted plaintiff’s motion, dismissed the counterclaims and declared that plaintiff has no duty to defend or indemnify McCabe in defendant’s underlying action.
Generally, when an insurer seeks to disclaim coverage on the basis of an exclusion, the insurer will be required to provide a defense unless it can demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations are subject to no other interpretation. An insurer may avoid coverage under a policy’s intentional acts exclusion only if the insurer establishes as a matter of law the absence of any possible legal or factual basis to support a finding that the bodily injury at issue was, from the insured’s point of view, unexpected and unintended. Plaintiff essentially argued that McCabe’s conviction made it entitled, based on collateral estoppel, to a declaration that the policy did not provide coverage in the underlying action.
Collateral estoppel is an equitable doctrine grounded on concepts of fairness. The two requirements of the doctrine are that the identical issue was necessarily decided in the prior action and is decisive in the present action, and that the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination. In appropriate situations, an issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action.
The jury’s verdict finding McCabe guilty of assault in the first degree and strangulation in the first degree necessarily included findings that McCabe intended to cause serious physical injury to defendant, intended to impede her breathing or circulation, applied pressure to her throat or neck and caused her serious physical injury by means of a deadly weapon or dangerous instrument. The intent required in the criminal action would be sufficient to establish the intent element of the insurance policy exclusion as long as they relate to the same conduct.
In the underlying action, defendant alleged, among other things, that McCabe permitted and failed to remedy a tripping hazard in a doorway and exacerbated the dangerous condition by obstructing the doorway with a couch and other items, and defendant tripped and fell into a cement wall, causing her serious injuries. Defendant also alleged that McCabe negligently engaged in an activity that rendered her partially incapacitated, then did not exercise reasonable care to obtain prompt medical attention, hold or support her as she attempted to walk through the doorway or warn her of the dangerous condition.
The appellate court concluded that McCabe’s intentional actions cannot be magically transformed into negligent ones merely by defendant’s allegations trying to recast them. McCabe’s conduct that rendered defendant partially incapacitated was his criminal, intentional actions, which cannot be downgraded to mere negligence through artful pleading.
On the other hand, some of defendant’s allegations address McCabe’s actions prior to the assault, such as failing to maintain the property by permitting a tripping hazard, and his alleged actions after the assault, such as failing to obtain medical care and allowing defendant to ambulate in an incapacitated state without adequate assistance.
To establish the convictions, it was unnecessary for the jury to have made findings regarding whether McCabe created a tripping hazard, allowed defendant to walk on her own after he had rendered her partially incapacitated or failed to seek medical help for her after the criminal assault. Hence, the issues as to insurance coverage and exclusions are not identical to the issues decided in McCabe’s criminal trial, and defendants here did not have a full and fair opportunity in the criminal trial to address some of the issues regarding McCabe’s negligence allegedly committed before and after the criminal assault.
Plaintiff failed to demonstrate that there was no possible factual or legal basis to support a finding that some of defendant’s injuries were unintended by McCabe, so as to bar coverage under the policy exclusion.
Accordingly, collateral estoppel does not apply here, except as to the more narrow issues necessarily decided in the criminal trial, and plaintiff was not entitled to summary judgment or a declaratory judgment at this early stage of this coverage action.
Contrary to the court’s intent the brilliant pleading inserting into an assault and battery a negligent cause of injury – a trip and fall hazard – magically changed the battery into a negligent action and forced an insurer to defend a vicious criminal. They should have done discovery to establish the trip and fall hazard did not add to Rebekah’s injuries. The insurer did not and must now defend.
© 2018 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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An annual subscription to secondary content on the Fastcase platform includes new editions and updates published by the author as they are rolled out, so you can rest assured that your research is up to date. Go to fastcase.com for more detail and how to use the material on-line as part of your legal or insurance research or as stand-alone e-books.
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