In the insurance law class that I teach, we are often discussing the fine line between accidental acts covered by insurance and intentional acts that are generally not covered in most policies. The reality is that coverage in most states is interpreted very broadly and, as a result, acts that we all agree are intentional in the vernacular are not intentional in the insurance law context. The San Diego Injury Lawyer Blog has a good post about a recent California case where the insured’s son threw someone into the shallow end of a pool at their home and fractured the victim’s clavicle.
The son was charged and later pled nolo contendre to a misdemeanor so, obviously, it was a little more than negligence because battery – by definition – is an intentional tort. The court does an end run around this – as most courts do – by finding that the son did not intend or expect the consequence. Obviously, in the world of torts, this does not negate an otherwise intentional act.
The classic case on this premise in the torts context is the one we all remember from law school: Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955). In that case, a 5 year-old boy who pulled a chair out from under his aunt committed a tort if he knew that the likelihood of his action was that she would fall to the ground. Obviously, the insured in this case knew that the person he threw in the pool would land in the pool and that there was not consent for the act.
For a similar case in the insurance law context that is in most modern insurance law textbooks, read AMCO Ins. Co. v. Haht, 490 N.W.2d 843, 845 (Iowa 1992), which also includes a dissent that articulates the insurance company’s point of view in these types of cases.