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The Rogak Report: 04 Sep 2008 ** Coverage - Intentional Acts **

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  • insurancelawyer
    STUDENT WHO THREW GARBAGE CAN IS ENTITLED TO DEFENSE AND INDEMNITY IN PERSONAL INJURY SUIT Medrano v. State Farm Fire & Cas. Co. 2008 NY Slip Op 06699
    Message 1 of 1 , Sep 4, 2008

      STUDENT WHO THREW GARBAGE CAN IS ENTITLED TO DEFENSE AND INDEMNITY IN PERSONAL INJURY SUIT

      Medrano v. State Farm Fire & Cas. Co.
      2008 NY Slip Op 06699
      Decided on September 2, 2008
      Appellate Division, Second Department
      Edited by Lawrence N. Rogak


      In this DJ action, Robert Filer, an infant by his parents and natural guardians, Robert Filer and Marcia Filer, demanded defense and indemnity from State Farn in an underlying personal injury action.   State Farm Fire & Casualty Company appealed from an order of the Supreme Court, Queens County (Hart, J.), which granted the plaintiffs' motion for summary judgment and declared that State Farm was obligated to defend and, if necessary, indemnify the defendant Robert Filer, and his parents Robert Filer and Marcia Filer, in the underlying action.   The Appellate Division affirmed.

      "On March 28, 2003, at approximately 1:00 P.M., the plaintiff Elsa Medrano, a teacher's aide, was working at Middle School 202 in Ozone Park. She was monitoring a student in the cafeteria, when a food fight broke out among eighth-grade students. The defendant Robert Filer threw a garbage can into the air, which struck the plaintiff and injured her."

      "The plaintiff and her husband, suing derivatively, commenced a personal injury action alleging that Filer negligently, carelessly, and recklessly caused the plaintiff's injuries. At the time of the injury, Filer's parents were insured under a homeowner's insurance policy issued by the defendant State Farm....   State Farm issued a disclaimer letter and denied liability coverage for the claims asserted against Filer in the personal injury action stating, inter alia, that the alleged incident did not qualify as an 'occurrence,' which is defined in the policy as an accident, and that the policy contained an exclusion for a claim for bodily injury that either was expected or intended by the insured or was the result of willful and malicious acts of the insured."

      "The plaintiffs commenced this action for a judgment declaring that State Farm is obligated to defend and indemnify Filer in connection with the underlying personal injury action. The Supreme Court granted the plaintiffs' motion for summary judgment declaring that State Farm is so obligated, granted Filer's cross motion for the same relief, and denied State Farm's cross motion for summary judgment. The court reasoned, in part, that the complaint in the underlying action alleged negligence. It further based its determination on the deposition testimony of Filer, which indicated a lack of intent to injure the plaintiff, ruling that this was sufficient to bring the underlying personal injury action within the parameters of the policy, and to create a duty to defend. We agree."

      "The State Farm policy defines an 'occurrence' as an accident which results in bodily injury, and the policy's bodily injury exclusion states that coverage does not apply to bodily injury which was either expected or intended by the insured or was the result of willful or malicious acts of the insured. State Farm failed to demonstrate its entitlement to judgment as a matter of law since it did not show that the allegations of the complaint fell wholly outside coverage or within any valid policy exclusion. The allegations of negligence in the complaint implied an unintentional or unexpected event which potentially gives rise to a covered claim as against Filer."

      "The plaintiffs and Filer demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that Filer did not intentionally cause injury to the plaintiff, and that although such injury may have been the unintended result of Filer's conduct, it was not the result of a willful and malicious act (see Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293; Allegany Co-op Ins. Co. v Kohorst, 254 AD2d 744, 745; Baldinger v Consolidated Mut. Ins. Co., 15 AD2d 526, affd 11 NY2d 1026). In opposition, State Farm failed to raise a triable issue of fact."

      "Accordingly, the Supreme Court properly awarded summary judgment to the plaintiffs and Filer, properly denied State Farm's cross motion for summary judgment, and properly declared that State Farm is obligated to defend Filer in the underlying personal injury action."

      Comment:  This is the state of New York law on coverage for intentional acts.  It is not enough to intend to commit the act; the insurance company must convince the court that the insured intended to cause the injury.   Throwing a garbage can during a fight is not enough to fit the exclusion; the insurer must prove that the insured intended that the garbage can hit the injured person.

      Yeah, I know it sounds stupid.  But I don't make these decisions, I just report them.

      Larry Rogak

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