The Connecticut Supreme Court, deciding an issue of first impression in that state, recently held that coverage for bodily injury to others inflicted during an incident of self-defense by an insured constitutes an “occurrence,” and is not excluded by an intentional injury exclusion in a liability policy. Vermont Mutual Insurance Company v. Walukiewicz et al, SC 18061 (Conn., March 17, 2009).
An insurer brought a declaratory judgment action seeking a declaration that it was not obligated to defend or indemnify its insured in connection with a personal injury action resulting from a physical altercation. The trial court had excluded evidence of the nature and extent of the injuries and that the insured was acting in self-defense, and entered judgment in favor of the insurer. The Supreme Court reversed the judgment of the trial court and remanded the case for further proceedings.
The Supreme Court held that the term “accident” (and hence the term “occurrence”) encompasses actions taken by an insured in legitimate self-defense. The court reasoned that, although it could be said that discrete physical acts undertaken in self-defense are volitional and intentional, and therefore non-accidental, it is equally as plausible to characterize actions taken in self-defense as instinctive or reactive by nature and therefore unplanned and unintentional. According to the court, in the face of two equally plausible interpretations of an insurance policy provision, the court must rely on the one favoring coverage. The court also opined that an alternative analysis for determining whether an “accident” has occurred is to view more broadly the circumstances that led to bodily injury and, if the conduct undertaken in self-defense was provoked by acts of a third-party that were unexpected and unintended by the insured, then an “accident” exists.
The Supreme Court also held that, in determining whether acts of self-defense constitute “expected or intended” conduct sufficient to trigger the intentional injury exclusion, the application of the exclusion is determined by whether the insured subjectively expects or intends that bodily injury will occur, and not merely when an ordinary, reasonable person would be able to foresee injury occurring as a result of his acts. Because the proper inquiry is a subjective one, the court held that the insured’s subjective intent at the time of the occurrence as to whether he was acting in legitimate self-defense is determinative of whether the exclusion applies.