In Clayburn v. Nationwide Mut. Fire Ins. Co., 10 A.D.3d 778 (N.Y. App. Div. 3d Dept Jan. 15, 2009), a New York appellate court affirmed summary judgment in favor of the insured finding that the intentional acts exclusions in its homeowner’s policy did not bar coverage for personal injuries resulting from the insured’s bear hug of another person. In that case, the insured engaged the underlying claimant in a bear hug after the claimant had pushed the insured’s brother to the ground. The two lost their balance and fell through a window of a nearby store, resulting in lacerations to the claimant’s face. The insurer disclaimed coverage based on the intentional acts exclusion of its homeowner’s policy, and the insured subsequently commenced action seeking declaratory relief. Both parties then moved summary judgment, requesting that the court make its determination based on the record in the underlying case.

In affirming the lower court’s grant of summary judgment in favor of the insured, the appellate court noted that in order for the intentional acts exclusion to apply, “the insurer must prove that there is no possible legal or factual basis to support a finding that, from the point of view of the insured, the bodily injuries inflicted were unexpected, unintended and unforeseen.” The court further affirmed the lower court’s finding that the insured “did not expect, intend or foresee that [the underlying] plaintiff would end up crashing through the plate glass window or be injured in any way when [the insured] placed him in a bear hug. Plaintiff's injuries were not inherently likely to result from the nature and force of a defensive bear hug.” Thus, the court found the intentional acts exclusion inapplicable.

The court also held that the policy’s criminal acts exclusion did not apply, even though the insured had pleaded guilty to criminal harassment in the underlying case, because the insurer had failed to include that ground in its disclaimer letter to the insured.

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