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THE INSURANCE POLICY EXCLUDED COVERAGE FOR BODILY INJURY INTENDED OR EXPECTED BY THE INSURED; HERE THE INSURED UNINTENTIONALLY STRUCK COLE, WHO WAS ATTEMPTING TO BREAK UP A FIGHT BETWEEN THE INSURED AND A THIRD PERSON; BECAUSE THE INJURY TO COLE WAS UNINTENDED, THE INSURER WAS REQUIRED TO DEFEND THE INSURED IN COLE’S PERSONAL INJURY ACTION AGAINST THE INSURED (THIRD DEPT). ​

The Third Department determined plaintiff insurer was required, under the terms of the policy, to defend the insured, LePore, in the personal injury action by Cole against LePore. LePore was fighting with another and Cole was injured attempting to break it up. The policy excluded coverage for bodily injury intended or expected by the insured. The complaint alleged LePore negligently and carelessly struck Cole when LePore was trying to strike another person:

Plaintiff contends that no coverage exists under the insurance policy because LePore intended to cause physical harm to another person. An insured, however, may be indemnified for an intentional act that causes an unintended injury … . To determine whether a result was accidental, “it is customary to look at the causalty from the point of view of the insured, to see whether or not, from [the insured’s] point of view, it was unexpected, unusual and unforeseen” … . In describing the incident at issue, LePore stated that she did not intend to hit Cole. The record also contains evidence that Cole was inadvertently hit. In view of this, a sufficient basis exists to conclude that Cole’s injuries were not expected or intended within the embrace of the policy exclusion … . To that end, LePore can be indemnified under the policy, not because she acted negligently, but because her intentional act caused unintended harm. …

Plaintiff may be correct that LePore committed an intentional tort based upon [the transferred-intent] doctrine. … Plaintiff, however, erroneously conflates tort principles with contract principles — the latter of which governs the interpretation of insurance policies … . Vermont Mut. Ins. Group v LePore, 2022 NY Slip Op 06978, Third Dept 12-8-22

Practice Point: Here the insurance policy excluded coverage for bodily injury intended or expected by the insured, LePore. Cole was injured when LePore unintentionally struck her as Cole tried to break up a fight between LePore and another. Because LePore injured Cole unintentionally, the insurer was obligated to defend LePore in the personal injury action brought by Cole.

 

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