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It is everyone's worst nightmare: an intruder
in the home in the middle of the night. Most of us would do whatever is necessary
to protect our loved ones and our property from unwelcome strangers, including
acts of self-defense that may cause injuries or even death to the uninvited
by R. Brent
Cooper & Scully
There are other situations in the home that may also require self-defense,
such as arguments among guests or with neighbors, resulting in injuries. In
that scenario, and given today's litigious inclinations, it is likely that the
injured party or his/her family will bring a legal action seeking damages for
the alleged injuries. Are homeowners protected by homeowners liability insurance
for damages that result from the homeowners' acts of self-defense?
Homeowners liability policies contain a provision that excludes coverage
for injury or damage caused intentionally by or at the direction of the insured,
often referred to by the courts as the "intentional injury exclusion." The courts
of various jurisdictions are equally split as to whether injuries committed
in self-defense are intentional and expected and thereby excluded by the intentional
injury exclusion in the homeowners liability policy.1
The most recent case addressing this issue is Automobile
Insurance Company of Hartford v. Alfred S. Cook, 21 A.D. 3d 1155, 801
N.Y.S. 2d 837 (September 15, 2005), from the New York Supreme Court, Appellate
Division, Third Department. The New York court was faced with the legal question
of whether the homeowners insurance policy covered the insured in a lawsuit
for wrongful death when the insured killed a person in self-defense. Alfred
Cook, the insured, shot and killed Richard Barber after a disagreement over
a business arrangement. Barber entered Cook's home without permission and, during
their discussions, Cook retrieved his shotgun. Barber refused to leave Cook's
home, attacked and injured Cook, and then the fatal confrontation occurred.
Cook was acquitted of multiple indictments, including murder in the second
degree, based on self-defense. Thereafter, the administrator of Barber's estate
brought a wrongful death action against Cook, and Cook sought coverage under
his homeowners insurance policy issued by AIC.
The New York appellate court first held that the act of shooting another
person, even when done in self-defense, is not a covered "occurrence" because
the act could not be characterized as accidental, even in the face of allegations
of negligence. Though unnecessary for the ruling, the court next examined whether
Cook's acts fell within the policy's exclusion for bodily injury which is "expected
or intended." The court reasoned that the intentional injury exclusion is designed
to reinforce the liability policy's coverage clause by reiterating that the
bodily injury or property damage must flow from an accident and not be the expected
result of intentional conduct. Id. at 840. In that regard, evidence that Cook intended to injure, but not necessarily
kill Barber, was enough to trigger application of the intentional injury exclusion.
Other jurisdictions have ruled the same in finding that the intentional injury
exclusion in the homeowners liability policy applies to injuries that are the
result of acts committed in self-defense. See i.e.,:
Aetna Cas. and Sur. Co. v. Griss, 568
S.2d 903 (Fla. 1990) (use of deadly force in self-defense constitutes intentional
conduct causing harm to another within exclusionary provision of homeowners
Eubanks v. Nationwide Mut. Fire Ins. Co.,
195 Ga. App. 359, 393 S.E.2d 452 (1990) (where insured, who was insane,
shot and killed victim under apparent delusional misperception of self-defense,
neither his insanity nor the fact that he was, or thought he was, acting
in self-defense negated intent as matter of law, for purposes of intentional
acts exclusion of homeowners policy; rather, evidence of insanity and self-defense
entitled insured to jury determination as to whether insanity or self-defense
negated insured's intent to injure victims at time of shooting);
Home Ins. Co. v. Neilsen, 165 Ind. App.
445, 332 N.E.2d 240 (1975) (intentional injury exclusion applied to insured's
conduct of striking neighbor in face in self-defense);
Century Mut. Ins. Co. v. Paddock, 168
Mich. App. 747, 425 N.W.2d 214 (1988) (injuries to victim resulting from
actions of insured and his son in kicking victim for 2 minutes after victim
had fallen to ground were not covered by homeowners liability policy since
(1) injuries were not brought about by "accident," but were foreseeable
result of kicking, notwithstanding insured's contention that he and his
son acted involuntarily in defending themselves, and (2) kicking after victims
were no longer a threat was unnecessary for self-defense, and even if done
in self-defense, fell within express exclusion for intentional acts);
Nationwide Mut. Fire Ins. Co. v. Mitchell by
& Through Seymour, 911 F. Supp. 230 (S.D. Miss. 1995) (insured's
attack on victim in defense of insured's mother was not excepted from intentional
injury exclusion in homeowners policy);
Economy Fire & Casualty Co. v. Iverson,
445 N.W.2d 824 (Minn. 1989) (homeowners policy containing exclusion for
actions "intended or expected by the insured" owed duty to defend insured
when underlying tort action based on shooting victim's complaint alleging
negligence, intentional assault and loss of consortium; thus, insurer was
required to pay legal costs incurred by insured in defending tort action
up to time that action was settled; however, insurer had no obligation to
indemnify insured in connection with settlement agreement reached in underlying
tort action between insured and shooting victim, in which agreement insured
admitted negligence, where jury finding of self-defense extinguished liability
on part of insured).
Of course, there are just as many courts that have held that self-defense
is an exception to the intentional injury exclusion in the homeowners liability
policy. These courts take the position that an injury resulting from an act
committed by an insured in self-defense is not an expected or intended injury
pursuant to the intentional injury exclusion clause in the homeowners liability
insurance policy. Some courts view the intentional injury exclusion as designed
to apply only to misconduct or wrongful acts. See:
Walters v. American Ins. Co., 185 Cal.
App. 2d 776, 8 Cal. Rptr. 665 (1st Dist. 1960) (injury was not "intentional"
under the provisions of a comprehensive personal liability endorsement in
an automobile liability policy containing a clause excluding injuries "caused
intentionally by or at the direction of the insured"; court held that an
element of wrongfulness or misconduct is connoted by the intentional injury
exclusion and self-defense does not involve misconduct, so not excluded);
Deakyne v. Selective Ins. Co. of America,
728 A.2d 569 (Del. Super. Ct. 1997) (evidence that the insured spotted trespassers
on deck of home late at night, confronted them in attempt to protect family,
and struck trespasser with broken bottle only after suffering injury by
him created jury question whether the insured was acting in self-defense
or was subject to exclusion of liability coverage for expected or intended
Blosser v. Sentry Indem. Co., 541 So.
2d 1370 (Fla. Dist. Ct. App. 4th Dist. 1989) (exclusion contained in homeowners
policy for bodily injury or property damage which was expected or intended
by insured did not, as matter of law, constitute bar to coverage for act
of self-defense, and trial court erred in granting summary judgment where
record revealed genuine disputed facts regarding self-defense claim);
Western Fire Ins. Co. v Persons, 393 N.W.2d
234 (Minn. App. 1986) (held that trial court erred in failing to instruct
jury on self-defense as possible bar to application of intentional tort
exclusion of homeowners liability policy).
As with all coverage disputes, the determination of whether the intentional
injury exclusion applies to injuries caused by acts of self-defense depends
on the exact wording of the exclusion and the policy as a whole. Some liability
policies include an exception to the intentional injury exclusion for "bodily
injury resulting from the use of reasonable force to protect persons or property."
If the exclusion includes this exception, or one similar, the intentional injury
exclusion will not apply to circumstances where the insured uses reasonable
force in defending himself, others, or property. See Glover v. Allstate
Ins. Co., 229 Ga. App. 235, 493 S.E.2d 612 (1997) (exclusion in family
liability provisions of homeowners insurance policy, excluding damage for bodily
injury or property damage resulting from any willful act or omission that is
a crime unless such act or omission was for the preservation of life or property,
applied to preclude coverage for shooting of innocent bystander by homeowners'
child who fired gun in attempt to apprehend individuals who had assaulted him
while trying to steal his vehicle).
Dana Harbin is an attorney in the Dallas office of Cooper & Scully, P.C. where she specializes
in insurance coverage and bad faith involving all types of insurance policies,
both first and third party. Ms. Harbin earned her BA degree from the University
of Texas in Arlington and her JD degree from the University of Texas at Austin.
She can be reached at
1This is not an exhaustive annotation
of cases that interpret the intentional injury exclusion in the context of self-defense,
but merely a sampling for purposes of showing the split in jurisdictions.
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