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By: Barry Miller
Can the same conduct be unintentional, under a broad reading of the word “intent,” and still be intentional under a narrower test? A recent opinion from a Kentucky federal seems to suggest that an insured can lose coverage in precisely that way.
Questions of intent often arise under the standard “intentional injury” exclusion in most liability policies. Often the first exclusion in these policies, the clause says the insurance does not apply to “‘Bodily Injury’” or ‘Property Damage’ expected or intended from the standpoint of the insured.” Focusing on the “standpoint of the insured” language, most courts use a subjective test, asking whether the insured intended the harm that the plaintiff complains of, not the conduct that led to that harm.
But some courts apply a different test when analyzing questions of intent that arise under insuring agreements. When an “occurrence” triggers the insuring agreement, and the policy defines “occurrence” to mean “accident,” these courts ask an objective question: Did the insured intend the conduct that caused the plaintiff’s harm, not the harm itself? This is because the insuring agreement does not use the language “from the standpoint of the insured.”
One of the less contested statements in the otherwise-controversial Restatement of the Law of Liability Insurance is that the subjective test is more restrictive, honoring the general rule that courts must read exclusions narrowly. Restatement § 32, Illustration d and Comment b. But consider Blankenship v. GuideOne Mutual, 2022 U.S. Dist. LEXIS 35591 (W.D. Ky. March 1, 2022).
In Blankenship, parents accused the director of a daycare of abusing their child. The insured pleaded guilty to two counts of Assault in the Fourth Degree. Under Kentucky law, that plea established that she had acted intentionally or wantonly in causing injury to another person.
After the parents sued the daycare owner the insured asked her insurer to defend her. GuideOne denied owing a defense or indemnity, because the conduct she admitted when she pleaded guilty was not accidental. It argued that her conduct did not trigger its insuring agreement and was excluded as an intentional injury.
The federal court rejected the first argument because the statute made assault criminal if the defendant acted intentionally or wantonly. It cited Kentucky case law holding that wanton and intentional conduct are not the same thing, so the plea did not establish that the insured acted intentionally. Thus, Blankenship could “argue that her actions were an accident without contradicting her prior conviction….” The assault allegations triggered the insuring agreement even under the broad understanding of intent applied at this stage of coverage analysis. Id., * 11.
But the court agreed with GuideOne that the “intentional injury” exclusion applied. While Kentucky law requires a showing that the insured intended the harm, a court can infer intent “by the nature of the act and the accompanying reasonable foreseeability of the harm.” Id., * 12. The court cited both Kentucky cases and federal cases applying Kentucky law that inferred intent from convictions for conduct that was intentional or wanton. Based on that inference, the court granted summary judgment to GuideOne.
On first reading Blankenship seems to reach the right decision for the wrong reason. Surely, an insured’s conduct cannot be unintentional under a broad understanding of intent, but intentional under a more restrictive test. Closer reading makes it clear that the court followed the classic analysis of a coverage matter under the law of Kentucky and most other states—did a complaint’s allegations trigger the insuring agreement. If so, the policy covers them, unless exclusions remove that coverage. Relying solely on the characterization of one test of intent being more restrictive than another would be a facile route to the correct result—in this case. But using the correct analysis led to the same result, and that approach is more likely to lead to the correct result in future cases.