Automobile Insurance Company of Hartford v. Cook

• Decision Date: 15 September 2005
• Docket Number: 97160.
• Citation: 2005 NY Slip Op 06707,801 N.Y.S.2d 837,21 A.D.3d 1155
• Parties: AUTOMOBILE INSURANCE COMPANY OF HARTFORD, Appellant, v. ALFRED S. COOK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 1155

801 N.Y.S.2d 837

2005 NY Slip Op 06707

AUTOMOBILE INSURANCE COMPANY OF HARTFORD, Appellant, v. ALFRED S. COOK et al., Respondents.

97160.

Appellate Division of the Supreme Court of the State of New York, Third Department.

September 15, 2005.

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

LAHTINEN, J.

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 plaintiff's 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]).^*

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.

* 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).

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

Cardona, P.J. (dissenting).

I do not believe that plaintiff has established, as a matter of law, that the events in question are not a covered "occurrence" within the meaning of the policy or that they fall within the policy's "expected or intended" exclusion. Therefore, I agree with Supreme Court that plaintiff has a duty to defend defendant Alfred S. Cook in the underlying action and, accordingly, I respectfully dissent.

It is well established that an insurer's duty to defend its insureds in pending litigation is exceptionally broad and far surpasses the insurer's duty to ultimately indemnify in the event that the insured is found liable (see Continental Cas. Co. v. Rapid-American Corp., 80 NY2d 640, 648 [1993]; Seaboard Sur. Co. v. Gillette Co., 64 NY2d 304, 310 [1984]; Ruder & Finn v. Seaboard Sur. Co., 52 NY2d 663, 669-670 [1981]; International Paper Co. v. Continental Cas. Co., 35 NY2d 322, 326-327 [1974]). An insured's duty to indemnify, on the one hand, "`is determined by the actual basis for the insured's liability to a third person'" (Atlantic Mut. Ins. Co. v. Terk Tech. Corp., 309 AD2d 22, 28 [2003], quoting Servidone Constr. Corp. v. Security Ins. Co. of Hartford, 64 NY2d 419, 424 [1985]) and, thus, may generally be deduced from the factual determinations established after trial in the underlying action (see Incorporated Vil. of Cedarhurst v. Hanover Ins. Co., 89 NY2d 293, 300 [1996]; see generally Prashker v. United States Guar. Co., 1 NY2d 584, 590-591 [1956]). The duty to defend is, by contrast, "`litigation insurance'" for the insured that must be provided by the insurer no matter how groundless the underlying action may appear at the outset (Servidone Constr. Corp. v. Security Ins. Co. of Hartford, supra at 423, quoting International Paper Co. v. Continental Cas. Co., supra at 325-326; accord Atlantic Mut. Ins. Co. v. Terk Tech. Corp., supra at 29). In fact, "Even where there exist extrinsic facts suggesting that the claim may ultimately prove meritless or outside the policy's coverage, the insurer cannot avoid its commitment to provide a defense, since `[a] complaint subject to defeat because of debatable theories . . . must [nevertheless] be defended by the insured'" (Fitzpatrick v. American Honda Motor Co., 78 NY2d 61, 66 [1991], quoting International Paper Co. v....