Automobile Insurance of Hartford v. Cook

21 A.D.3d 1155, 801 N.Y.S.2d 837

Opinions

Lahtinen, J.

Appeal from an order of the Supreme Court (Sheridan, J.), entered June 8, 2004 in Albany County, which, inter alia, denied plaintiffs motion for summary judgment.

In this appeal, we are presented with the legal question of whether an individual’s homeowner’s insurance policy affords coverage when that individual is sued for wrongful death after killing a person in self-defense. Disclosure is completed and there is little dispute regarding the underlying facts. On February 20, 2002, defendant Alfred S. Cook shot and killed Richard A. Barber (hereinafter decedent) after a disagreement over a business arrangement spun out of control. Decedent had entered Cook’s home without permission and, during their discussions, Cook, armed with a handgun, retreated to his bedroom to retrieve a 12-gauge shotgun and then returned to the living room where the fatal confrontation occurred. Cook was indicted for a number of crimes, including murder in the second degree, stood trial and was acquitted on all counts of the indictment and lesser included crimes. The jury apparently concluded in the criminal case that the prosecution failed to prove beyond a reasonable doubt that the 120-pound Cook did not have legal justification for shooting the 360-pound decedent—who had previously attacked and injured Cook—after he refused to leave Cook’s home and approached Cook in a menacing way.

Thereafter, defendant Victoria Pruyn, as the administrator of decedent’s estate and as the parent and guardian of decedent’s son, resumed prosecution of a wrongful death action commenced against Cook shortly after the shooting. In response, Cook sought coverage under his homeowner’s insurance policy issued to him by plaintiff. Subsequently, plaintiff commenced this action against Cook and Pruyn, seeking a declaration that it had no duty to either defend or indemnify Cook in the underlying wrongful death action.

Following discovery, plaintiff moved for summary judgment seeking a declaration in its favor on the grounds that Cook’s shooting of decedent was not a covered occurrence under the policy and, in any event, fell within the policy’s “expected or intended” exclusion. Defendants opposed the motion and Cook cross-moved for summary judgment, seeking a declaration that plaintiff was obligated to defend and indemnify him because he acted in self-defense, never expecting to be put in the position of shooting decedent to protect himself from harm. Supreme Court denied plaintiffs motion and partially granted Cook’s motion, finding that plaintiff was obligated to provide Cook with a defense. Plaintiff now appeals.

Cook’s policy defines “occurrence” as an “accident.” It is well settled that “in deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen” (Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141,145 [2000]; see Miller v Continental Ins. Co., 40 NY2d 675, 677 [1976]). The Court of Appeals has established a “transaction as a whole” test for determining whether an occurrence constituted an accident (see McGroarty v Great Am. Ins. Co., 36 NY2d 358, 364 [1975]; see also National Grange Mut. Ins. Co. v Utica Mut. Ins. Co., 5 AD3d 1045, 1046-1047 [2004]). Under this test, it is “not legally impossible to find accidental results flowing from intentional causes” (McGroarty v Great Am. Ins. Co., supra at 364). However, “where harm to the victim is inherent in the nature of the act performed, whatever injuries result are, as a matter of law, intentionally caused” (Travelers Ins. Cos. v Stanton, 223 AD2d 104, 105 [1996], lv denied 89 NY2d 804 [1996]; see Monter v CNA Ins. Cos., 202 AD2d 405, 406 [1994]). Cook admitted at his deposition that he knew “a shot with a shotgun would injure, yes. I expected it to injure him, I certainly did not expect to kill him.” On these unrebutted facts set forth by plaintiff in support of its motion for summary judgment, the result of Cook’s intentional act cannot be characterized as accidental and the dissent’s suggestion that the negligence cause of action alleged in the complaint remains viable must be rejected. While he allegedly did not anticipate that the injury inflicted would result in death, the facts (and his admission) establish that he intended the result of a bodily injury. Indeed, he fired a 12-gauge shotgun at close range into decedent’s stomach. We thus conclude as a matter of law that Cook’s actions were not covered by the homeowner’s policy issued by plaintiff (see Peters v State Farm Fire & Cas. Co., 306 AD2d 817, 818 [2003], mod on other grounds 100 NY2d 634 [2003]).

Footnotes

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Although our finding that Cook’s shooting of decedent was not a covered occurrence under the policy makes it unnecessary' to address the further issue argued by the parties of whether Cook’s acts fell within the policy’s exclusion for bodily injury which is “expected or intended,” we will nevertheless comment briefly. That exclusion essentially reinforces the policy’s coverage clause by reiterating that the bodily injury or harm must flow from an accident and not be the expected result of intentional conduct (see Jubin v St. Paul Fire & Marine Ins. Co., 236 AD2d 712, 713 [1997]) and, upon consideration of the exclusion in the context of this case, we find it applies. We further note that the exclusion can take on independent significance when accompanied by a relevant exception. In Handlebar, Inc. v Utica First Ins. Co. (290 AD2d 633 [2002], lv denied 98 NY2d 601 [2002]), the exclusion in that commercial liability policy was accompanied by an exception for “bodily injury resulting from the use of reasonable force to protect persons or property” (id. at 634). Such an exception, which would provide a basis for coverage for justifiable acts of self-defense, did not accompany the exclusion in Cook’s homeowner’s policy.

Crew III, Spain and Kane, JJ., concur.

In reaching this conclusion, we acknowledge the differing views of other jurisdictions which have addressed the issue (compare Farmers & Mechs. Mut. Ins. Co. v Cook, 210 W Va 394, 401-403, 557 SE2d 801, 808-810 [2001] [coverage] and Transamerica Ins. Group v Meere, 143 Ariz 351, 694 P2d 181 [1984] [coverage], with Auto-Owners Ins. Co. v Harrington, 455 Mich 377, 383-386, 565 NW2d 839, 841-843 [1997] [no coverage] and Espinet v Horvath, 157 Vt 257, 261, 597 A2d 307, 309-310 [1991] [no coverage]; see generally Russ & Segalla, Couch on Insurance 3d § 103:32; Annotation, Acts in Self-Defense as Within Provision of Liability Insurance Policy Expressly Excluding Coverage for Damage or Injury Intended or Expected By Insured, 34 ALR4th 761).