Green v. Allstate Ins. Co.
| Decision Date | 27 November 1991 |
| Citation | 576 N.Y.S.2d 639,177 A.D.2d 871 |
| Parties | Richard GREEN, Individually and as Parent and Natural Guardian of Amy Green, an Infant, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Goldstein & Stoloff (Richard A. Stoloff, of counsel), Monticello, for appellant.
Appelbaum, Eisenberg, Bauman & Appelbaum (Joel R. Appelbaum, of counsel), Liberty, for respondent.
Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and CREW, JJ.
Reargument of a decision of this court, dated April 11, 1991, which affirmed a judgment of the Supreme Court (Torraca, J.), entered March 14, 1990 in Sullivan County.
This matter was previously before us 568 N.Y.S.2d 231, (172 A.D.2d 949 [1991] and our decision therein was based on the Second Department's decision in Allstate Ins. Co. v. Zuk, 160 A.D.2d 971, 554 N.Y.S.2d 939, revd. 78 N.Y.2d 41, 571 N.Y.S.2d 429, 574 N.E.2d 1035, which involved an exclusionary clause identical to the one at issue in the instant case. Reargument was granted by this court in light of the Court of Appeals' reversal in Zuk.
The relevant exclusionary clause provides as follows:
Losses We Do Not Cover:
1. We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person.
We found in the prior appeal that defendant Jay Jarrette's plea of guilty to second degree assault conclusively determined that the injury to the victim's eye was caused by Jarrette's criminal act and foreclosed Jarrette's entitlement to a defense by defendant Allstate Insurance Company in the civil lawsuit brought on behalf of the injured party, Amy Green.
In Zuk, the Court of Appeals noted that while certain behavior involving a calculated risk may be considered reckless for the purpose of imposing criminal responsibility, it does not necessarily follow that the actor reasonably expected an accident to result (Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 46, 571 N.Y.S.2d 429, 574 N.E.2d 1035). Applying that reasoning to this case, we note initially that Jarrette pleaded guilty to "reckless" as opposed to "intentional" assault (compare Penal Law § 120.05[4], with Penal Law § 120.05[1], [2]. Further, although defendant Jay Jarrette admitted firing a slingshot in the general direction of a crowd, he indicated that he "had no purpose" in firing the slingshot, that he "wasn't shooting directly at anyone" and that he did it as "something stupid" or as "a joke". Accordingly, we conclude that Jarrette's...
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