| State Farm Fire & Cas. Co. v Whiting |
| 2008 NY Slip Op 06020 [53 AD3d 1033] |
| July 3, 2008 |
| Appellate Division, Fourth Department |
| State Farm Fire and Casualty Company, Respondent, v RodneyWhiting et al., Defendants, and Matthew Whiting, Appellant. |
—[*1] Goldberg Segalla LLP, Buffalo (Daniel W. Gerber of counsel), forplaintiff-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (JamesP. Punch, A.J.), entered August 15, 2007 in a declaratory judgment action. The judgment grantedplaintiff's cross motion for summary judgment seeking a declaration that plaintiff has no duty todefend or indemnify defendant Matthew Whiting in the underlying action.
It is hereby ordered that the judgment so appealed from is affirmed without costs.
Memorandum: Supreme Court properly granted the cross motion of plaintiff seekingsummary judgment declaring that it has no duty to defend or indemnify Matthew Whiting(defendant) in the underlying action. According to the complaint in the underlying action,defendant assaulted Evan Lang while Lang was attending a party at defendant's home. We agreewith the court that plaintiff has no duty to defend or indemnify defendant with respect to thecause of action alleging an intentional tort. We conclude that the incident herein was not an"occurrence" within the meaning of the policy and, in our view, the dissent's reliance upon Automobile Ins. Co. of Hartford vCook (7 NY3d 131) in reaching a contrary conclusion is misplaced. Under the terms ofthe policy, an occurrence is defined as "an accident." We note at the outset that an incident is anoccurrence, i.e., an accident, if, " 'from the point of view of the insured, . . . [theincident resulting in injury] was unexpected, unusual and unforeseen' " (Miller v ContinentalIns. Co., 40 NY2d 675, 677 [1976]; see Cook, 7 NY3d at 137-138; Essex Ins. Co. v Zwick, 27 AD3d1092). Defendant herein testified at his deposition that he intended to hit Lang, who hadshoved him and was again advancing toward him, and defendant knew when he hit Lang thatLang "could be hurt from the punch." In Cook, the insured shot and killed an intruder inhis home. He was acquitted of murder and manslaughter charges, and the victim's estatecommenced a wrongful death action alleging that the insured in Cook negligently causedthe victim's death (see 7 NY3d at 135). The insured in Cook, who fired theweapon at the lowest part of the victim's body that was visible behind a pool table, testified at hisdeposition that he knew that the victim would be injured but he did not anticipate that the victimwould be killed (see id. at 135-136). Although the insured acted intentionally insofar ashe fired a weapon at the victim who was advancing toward him, the Court explained that, "if [theinsured] accidentally or [*2]negligently caused [the victim's] death,such event may be considered an 'occurrence' within the meaning of the policy and coveragewould apply" (id. at 138). We conclude herein that there is no view of the evidence tosupport a conclusion that the result of defendant's intentional act of punching Lang in the face"accidentally or negligently" caused Lang's alleged injuries (id.).
We reject the further contention of defendant that he is entitled to coverage based uponplaintiff's failure to disclaim coverage in a timely manner. Because we have concluded that theclaim falls outside the scope of the policy's coverage on the ground that the incident is not anoccurrence, disclaimer pursuant to Insurance Law 3420 (d) is not necessary. Where, as here, "theinsurance policy does not contemplate coverage in the first instance, . . . requiringpayment of a claim upon failure to timely disclaim would [impermissibly] create coverage whereit never existed" (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188).
All concur except Green and Gorski, JJ., who dissent and vote to reverse in accordance withthe following memorandum.
Green and Gorski, JJ. (dissenting). We respectfully dissent because, in our view, plaintiff hasa duty to defend Matthew Whiting (defendant) in the underlying action. An insurer's duty todefend is " 'exceedingly broad' " and requires an insurer to provide a defense whenever theallegations of the complaint " 'suggest . . . a reasonable possibility of coverage' " (Automobile Ins. Co. of Hartford vCook, 7 NY3d 131, 137, quoting Continental Cas. Co. v Rapid-American Corp.,80 NY2d 640, 648 [1993]). Here, the complaint in the underlying action alleges, inter alia, thatdefendant was negligent in hosting a party and providing alcoholic beverages to persons underthe age of 21, in failing to limit the amount of alcoholic beverages consumed, in failing tosupervise those present so as to prevent an incident and in failing to foresee the likelihood that aphysical altercation could occur as a result of serving alcoholic beverages to persons under theage of 21. The Court of Appeals has written that " '[i]f, liberally construed, the claim is within theembrace of the policy, the insurer must come forward to defend its insured no matter howgroundless, false or baseless the suit may be' " (id., quoting Ruder & Finn v SeaboardSur. Co., 52 NY2d 663, 670 [1981], rearg denied 54 NY2d 753 [1981]). "The dutyremains 'even though facts outside the four corners of [the] pleadings indicate that the claim maybe meritless or not covered' " (id., quoting Fitzpatrick v American Honda MotorCo., 78 NY2d 61, 63 [1991]). Here, the complaint plainly sets forth negligent actsattributable to defendant.
We cannot agree with the majority that the incident was not an "occurrence" within themeaning of the policy or that it falls within an exclusion to the policy. The policy defines an"occurrence" as an "accident," and the Court of Appeals has also written that an accident is"deemed to pertain . . . to an intentional or expected event which unintentionally orunexpectedly" results in injury or death (Miller v Continental Ins. Co., 40 NY2d 675, 678[1976]). The policy also contains an exclusion for an act that is "either expected or intended bythe insured" or "which is the result of willful and malicious acts of the insured." Notably, theCourt of Appeals recently held that there was a duty to defend in Cook, where the insuredpointed a 12 gauge shotgun at the decedent and, when the decedent "menacingly startedadvancing toward" the insured, the insured shot and killed the decedent (7 NY3d at 135). TheCourt concluded that, "if [the insured] accidentally or negligently caused [the victim's] death,such event may be considered an 'occurrence' within the meaning of the policy and coveragewould apply" (id. at 138). The Court reasoned that, although the factfinder in theunderlying action may "ultimately reject the notion that [the insured] negligently caused [thedecedent's] death given the evidence of intentional behavior, . . . that uncertainoutcome is immaterial to the issue" whether the insurer had a duty to defend its insured(id.).
In our view, Cook is controlling under the facts of this case. Here, defendant testifiedat his deposition that, after hours of consuming alcoholic beverages, Evan Lang, one of theplaintiffs in the underlying action, was visibly intoxicated and unruly. Evan initially pushed [*3]defendant to the point of knocking him off balance, and he thencharged at defendant "fast" while speaking angrily, with his fists clenched. Defendant testifiedthat, in response, he hit Evan because he "thought [he] was going to get hit." Defendant furthertestified at his deposition that his blow to Evan was "quick, nothing that I had time to preparefor." In light of defendant's explanation of the events leading to Evan's alleged injuries, weconclude that plaintiff failed to demonstrate that defendant's acts are subject to no otherinterpretation than that defendant " 'expected or intended' " the harm to Evan (Cook, 7NY3d at 138; cf. Allstate Ins. Co. v Mugavero, 79 NY2d 153 [1992]). Thus, we concludethat, because the complaint in the underlying action alleges negligent conduct by defendant, anddefendant's description of the events and actions leading to Evan's injury support the conclusionthat the punch or its results were unexpected or unintended by defendant, plaintiff has a duty todefend defendant in the underlying action. We therefore would reverse the judgment, denyplaintiff's cross motion, vacate the declaration and grant judgment in favor of defendant declaringthat plaintiff has a duty to defend him in the underlying action. Present—Scudder, P.J.,Martoche, Smith, Green and Gorski, JJ.