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“Urine Trouble” for Intentional Act, Court Tells Insurer (NY)

January 30, 2020

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<p style="text-align: justify;">In <em><a href="">Unitrin Auto Home Ins Co. v. Sullivan</a></em>, the Second Department declined to apply the intentional acts exclusion to bar coverage for a claim arising out of a claimant’s injury after being hit with a cup of urine.</p>
<p style="text-align: justify;">In 2005, the insured was driving a car covered by a policy issued by Unitrin Home and Auto Insurance Company (“Unitrin”) along with two passengers.  For unknown reasons, the parties wished to empty a cup filled with urine on a passerby.  However, the passenger, apparently unintentionally, hit the passerby in the face with the cup itself, causing personal injuries.  The claimant filed a personal injury action against the insured.  After various motion practice, the only surviving claim against the insured was for intentional tort.  Unitrin subsequently disclaimed coverage based on policy exclusions for intended injury and for intentional acts.</p>
<p style="text-align: justify;">The trial court granted summary judgment to Unitrin, finding that, because the harm flew directly from intentional conduct, i.e. the desire to empty the contents of the cup, the harm is deemed intentionally caused.  This was the case, the trial court held, “irrespective of the insured's subjective intent and notwithstanding that the actual injuries may have been more extensive than he anticipated.”</p>
<p style="text-align: justify;">On appeal, the Second Department reversed and held that a triable issue of fact existed as to whether the events constituted an “accident” under the policy.  Specifically, the court held that, although there was evidence the parties intended to douse the claimant with urine, “there was no intent to throw the cup and strike” the claimant.  The court distinguished cases where “the intentional act exclusion applies regardless of the insured's subjective intent.”  In these cases, such as sexual abuse of a child, the exclusion applies regardless of the whether the perpetrator lacked subjective intent of causing harm.</p>
<p style="text-align: justify;">The <em>Unitrin</em> decision further limits the extent to which courts will bar coverage for intentional acts, even if the ultimate harm directly flows from the intentional conduct.</p>
<p style="text-align: justify;">Thanks to Douglas Giombarrese for his contribution to this post.  Please email<a href=""> Georgia Coats</a> with any questions.</p>

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