Intentional Acts, Domestic Abuse and False Imprisonment Excluded

No Excuse, No Coverage, for Intentional and Criminal Abusive Conduct

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.

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) Nikos Hecht appealed the district court’s grant of summary judgment in favor of his insurer, Great Northern Insurance Company (Chubb), which denied Hecht’s claims based on policy exclusions for intentional acts and abuse committed by its insured.

FACTS

This case stems from a civil suit brought against Hecht by his ex-girlfriend, Brooke Warfel. According to the Warfel complaint, Hecht was physically and emotionally abusive, exhibiting behavior “indicative of the typical patterns of domestic violence and abuse.” Her allegations principally focused on two factual events in which he coerced her to have an abortion against her physician’s advice and falsely imprisoned her in a remote cabin.

Warfel allegedly agreed to have the abortion in Mexico by the individual known to Hecht, though this person turned out to be “closer to a nurse practitioner, . . . not an ob/gyn as promised by Hecht”. Although this provider gave Warfel drugs to terminate the pregnancy, causing “excruciating abdominal pain,” the procedure resulted in a failed abortion.

Regarding the cabin incident, the Warfel complaint alleges that in July 2015, while Warfel recovered from a second abortion that she underwent at Hecht’s insistence, the couple spent three nights in a remote cabin. On the last night, Hecht allegedly lost his temper, prompting her to start packing her clothes. He “became irate,” threw her clothes all over the room, refused to let her leave, and “threatened to punch her in the face.” As the situation escalated, Hecht allegedly threatened to kill her mother and “to get[] a big black n***er to cut off [her] ring on her finger and knock her teeth out.”  He also “pushed her so hard that she fell and hit her head on the concrete floor” and physically prevented her from leaving the cabin until the next day.

After Warfel was able to leave the cabin, her injuries were documented at a hospital; Hecht eventually pleaded guilty in Colorado state court to a domestic violence charge.  Warfel asserted claims for assault, battery, negligent and intentional infliction of emotional distress, false imprisonment, and negligence.

Hecht submitted the Warfel complaint to Chubb for defense. In a letter denying coverage Chubb concluded there was no duty to defend or indemnify because the Warfel allegations fell within policy exclusions for “Intentional Acts” and “Molestation, misconduct or abuse.”

Hecht settled his lawsuit with Warfel and subsequently sued Chubb. Eventually motions for summary judgment were made and the district court ruled there was no duty to defend and thus no basis for claiming an unreasonable delay or denial of payment. The court thus granted summary judgment to Chubb on the outstanding claims, and Hecht appealed.

ANALYSIS

The threshold—and dispositive—inquiry of the Tenth Circuit was whether Chubb had a duty to defend, because absent a duty to defend, Hecht cannot prevail on any other claim. Under Colorado law, an insurer’s duty to defend is broader than the duty to indemnify. If there is no duty to defend, then there is no duty to indemnify. In Colorado, if the underlying complaint asserts more than one claim, a duty to defend against all claims asserted arises if any one of them is arguably a risk covered by the pertinent policy.

Although the Chubb policies provide broad liability coverages, the policies contain a list of exclusions, including the two relied upon by Chubb to deny coverage:

“Intentional acts. We do not cover any damages arising out of a willful, malicious, fraudulent or dishonest act or any act intended by any covered person to cause personal injury or property damage, even if the injury or damage is of a different degree or type than actually intended or expected. But we do cover such damages if the act was intended to protect people or property unless another exclusion applies. An intentional act is one whose consequences could have been foreseen by a reasonable person ….”

 “Molestation, misconduct or abuse. We do not cover any damages arising out of any actual, alleged or threatened: sexual molestation;  sexual misconduct or harassment; or abuse.”

In particular, the court determined the factual allegations relating to the abortion evinced intentional conduct that fell under the exclusion for intentional acts, while the events at the cabin qualified as abuse under the molestation, misconduct, or abuse exclusion. The Tenth Circuit agreed with the district court’s analysis.

The Allegations Relating to the Abortion Reflect Intentional Conduct

The district court correctly determined that the factual allegations relating to the abortion reflect Hecht’s intentional conduct. Although the Warfel complaint alleges Hecht was negligent in subjecting her to an unqualified abortion provider, the district court recognized that damages from covered and excluded conduct may become so intertwined as to render them inseparable, and beyond coverage based upon an exclusion. The Tenth Circuit determined the false imprisonment and the sexual assault occurred in such close temporal and spatial proximity as to render them inseparable; thus, any potential coverage under the insured’s policy for the false imprisonment was defeated by exclusions for the sexual assault, which constituted a willful and malicious act.

As the district court aptly observed, “the single negligent choice of selecting a medical provider was merely another link in the chain of otherwise intentional actions [Hecht] took when he forced Warfel to get an abortion.”

The Allegations Relating to the Cabin Reflect Abuse

The Warfel complaint alleged Hecht falsely imprisoned Warfel at an isolated cabin, where he lost his temper and threatened to kill her mother, cut off her finger, and knock her teeth out. Hecht later pleaded guilty to domestic violence and admitted the factual basis for his crime.

Contrary to Hecht’s demands the Tenth Circuit refused to adopt a strained reading of the policies or ignore the facts alleged to defeat the purpose of the exclusions. Hecht pleaded guilty to domestic violence as a consequence of his abuse. The exclusion plainly bars coverage for his conduct.

The Tenth Circuit agreed with the district court’s conclusion that the intentional and negligent conduct were inseparably intertwined. There was no duty to defend.

ZALMA OPINION

This suit against Chubb was abusive. 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.


© 2019 – 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 zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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