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Courts and Coverage

Homeowners Policies and Acts of Self-Defense

Brent Cooper | January 1, 2006

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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 person.

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

New York Rules on Wrongful Death and Self-Defense

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 Courts Examine Intentional Injury

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.

  • 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 policy);
  • 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.

  • 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 injuries);
  • 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).

The "Reasonable Force" Exception

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).

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1 This 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.