Intentional Torts

“Expected or Intended Injury”

Typically, standard form ISO insurance policies provide coverage only for negligent conduct on the part of an insured. Most contain an “Expected or Intended Injury” exclusion, which bars coverage for bodily injury expected or intended by one or more of the insureds. So, how do you protect your right to recover against someone who has hurt you through reckless or intentional conduct?

In order to maximize your potential recovery, you must avoid alleging that the tortfeasor who injured you did so exclusively in a reckless, purposeful, malicious, and/or intentional manner. It is crucial that the allegations within your Complaint establish the tortfeasor acted negligently and failed to subjectively intend the injuries you ultimately sustained or appreciate the possibility that you would be injured.

Courts in New Jersey have interpreted the “Expected or Intended Injury” exclusion to bar coverage if an insured expected or intended the resulting harm. Harleysville Ins. Co. v. Garitta, 170 N.J. 223 (2001). In the context of homeowners liability policies, “[p]olicy provisions that exclude coverage resulting from intentional wrongful acts are ‘common,’ are ‘accepted as valid limitations,’ and are consistent with public policy.’” Id. at 231.

Voorhees v. Preferred Mutual Insurance Co., 128 N.J. 165 (1992) and SL Industries, Inc. v. American Motorists Insurance Co., 128 N.J. 188 (1992) serves as the starting point for analyzing whether conduct alleged to be intentional may, nonetheless, be covered under a liability insurance policy. In Voorhees, the homeowners policy provided coverage to an insurer legally liable because of bodily injury caused by an “occurrence,” defined as an “accident,” but excluded coverage for “liability…caused intentionally.” 128 N.J. at 171. The Court focused on the injuries resulting from the act and held, “[t]he accidental nature of an occurrence is determined by analyzing whether the alleged wrongdoer intended or expected to cause an injury. If not, then the resulting injury is ‘accidental,’ even if the act that caused the injury was intentional.”_Id._ at 183.

In SL Industries, the Court enunciated the principle that once it is established that the wrongdoer “subjectively intends or expects to cause some sort of injury, that intent will generally preclude coverage,” unless “there is evidence that the extent of the injuries was improbable,” in which case a court “must inquire as to whether the insured subjectively intended or expected to cause that injury.” 128 N.J. at 212.

In Garitta, the Court reaffirmed the holdings of Voorhees and SL Industries and further explained how to objectively determine the insured’s intent. The Garitta Court stated that intent can be shown where the record indisputably demonstrates that the actual injury to a third party was an “inherently probable circumstance of the insured’s conduct.” The Garitta Court elaborated that the intent to injure can also be presumed from the offending act without inquiry into the actor’s subjective state of mind where acts that are particularly reprehensible are involved. 170 N.J. at 234-35. Because the Court in Garitta was satisfied that that mortal injury inflicted was an inherently probable consequence of the insured’s actions the Court was able to find as a matter of law the insured’s intent and thus that the insured’s conduct fell within the policy’s exclusion.

If you are injured by another performing a criminal act it is crucial to understand that the person who injured you must be shown to have specifically desired to cause the degree of injury you sustained, not just even any injury. According to Criminal Charge Guidelines of the State of New Jersey, a person acts purposely with respect to the result of his conduct if it is his conscious object to cause such a result. A person acts purposely if he acts with design, with a specific intent, with a particular object or purpose, or if he means to do what he does. A person acts knowingly with respect to the result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.

According the Criminal Charge Guidelines, a person acts recklessly with respect to the result of his conduct if he consciously disregards a substantial and unjustifiable risk that the result will occur from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to the actor, the disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. One is said to act recklessly if he acts with recklessness, with scorn for the consequences, heedlessly, fool-hardily. The phrase “under circumstances manifesting extreme indifference to the value of human life” does not focus on the state of mind of the actor, but rather on the circumstances under which he acted. If, in light of all the evidence, the conduct of the actor resulted in a probability as opposed to a mere possibility of serious bodily injury, then the actor acted under circumstances manifesting extreme indifference to the value of human life.

In order to maximize your potential recovery, you must avoid alleging that the tortfeasor who injured you did so exclusively in a reckless, purposeful, malicious, and/or intentional manner. It is crucial that the allegations within your Complaint establish the tortfeasor acted negligently and failed to subjectively intend the injuries you ultimately sustained or appreciate the possibility that you would be injured.

Take the following example. You are injured at your friend’s home when your friend tackles you while rough housing and you fall down his stairs. Well, if you plead your Complaint properly to allege negligent conduct on the part of your friend, you will survive a motion to dismiss the Complaint at the outset of the suit. From there you will be able to conduct discovery in order to establish that although your friend acted intentionally in tackling you, he did not subjectively intend for you to fall down the stairs and sustain the extent of injuries you sustained. Your friend likely will testify to this! This is sufficient in order to trigger insurance coverage under the standard form ISO policy.

But, in order to protect yourself in this manner under New Jersey law, you must retain skillful legal representation. Contact us to discuss your case.