Vt. Mut. Ins. Grp. v. Lepore

211 A.D.3d 1217

179 N.Y.S.3d 479

VERMONT MUTUAL INSURANCE GROUP, Appellant,

v. Sheri LEPORE et al., Defendants,andJodi Cole et al., Respondents.

534864

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 20, 2022

Decided and Entered: December 8, 2022

Ondrovic, Hurley & Platek, PLLC, White Plains (Karen A. Ondrovic of counsel), for appellant.

Kelly & Leonard, LLP, Ballston Spa (Thomas E. Kelly of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from an order of the Supreme Court (Mark L. Powers, J.), entered January 18, 2022 in Schenectady County, which denied plaintiff's motion for summary judgment.

Defendant Jodi Cole, and her spouse derivatively, commenced an action against defendant Amanda LePore, among others, for alleged personal injuries sustained. The alleged injuries stemmed from an incident where school staff, including Cole, broke up a fight between LePore and another student. After LePore and the student were separated, the student said something to LePore and, in response, LePore tried to hit her. Cole had her back to LePore at this time and then "felt somebody come up and over [her]." According to a witness, LePore "took a swing and inadvertently hit [Cole]" with her forearm.

Plaintiff issued a homeowners’ insurance policy under which LePore was an insured. The policy defined an "[o]ccurence" as "an accident ... which results, during the policy period, in [b]odily injury." The policy further stated that coverage was excluded for "bodily injury ... [w]hich is expected or intended" by an insured. As relevant here, plaintiff disclaimed coverage on the grounds that LePore's act in hitting Cole was not an "occurrence" within the meaning of the policy and that the policy's intentional act exclusion applied. Plaintiff thereafter commenced this declaratory judgment action seeking a declaration that it owed no duty to defend or indemnify LePore in Cole's personal injury action. Following joinder of issue, plaintiff moved for summary judgment. Supreme Court denied the motion. Plaintiff appeals. We affirm.

An insurer's duty to defend "arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" ( Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264, 920 N.Y.S.2d 763, 945 N.E.2d 1013 [2011] [internal quotation marks and citation omitted]; see Durant v. North Country Adirondack Coop. Ins. Co., 24 A.D.3d 1165, 1166, 807 N.Y.S.2d 427 [3d Dept. 2005] ). Plaintiff, as an insurer seeking to be relieved of its duty to defend on the basis of an intentional act exclusion, "bears the heavy burden of demonstrating that the allegations of the complaint cast the pleadings wholly within that exclusion, that the exclusion is subject to no other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer may eventually be held obligated to indemnify the insured under any policy provision" ( Frontier Insulation Contrs., Inc. v. Merchants Mut. Ins. Co., 91 N.Y.2d 169, 175, 667 N.Y.S.2d 982, 690 N.E.2d 866 [1997] ; see Jubin v. St. Paul Fire & Mar. Ins. Co., 236 A.D.2d 712, 714, 653 N.Y.S.2d 454 [3d Dept. 1997] ).

The complaint in Cole's personal injury action alleged that LePore was involved in a physical altercation with another student and that Cole was injured as she attempted to break up this altercation. The bill of particulars alleged that LePore "negligently and carelessly struck [Cole] in the back causing [Cole] to fall into a cement wall" while Cole was trying to stop an altercation involving LePore. It also alleged that LePore did not intend to injure Cole but accidently struck Cole while trying to hit the other student and that LePore "committed culpable conduct when she chose to ignore a command by [Cole] ... to stop her involvement in an altercation."

These allegations give rise to the possibility that Cole's injuries could have resulted from unintentional conduct by LePore. Although the record contains evidence suggesting that the incident at issue was an intentional tort, "the pleadings can be read as alleging that [Cole's] injuries were negligently inflicted by [LePore]" ( Merrimack Mut. Fire Ins. Co. v. Carpenter, 224 A.D.2d 894, 895, 638 N.Y.S.2d 234 [3d Dept. 1996], lv dismissed 88 N.Y.2d 1016, 649 N.Y.S.2d 382, 672 N.E.2d 608 [1996] ; see Robbins v. Michigan Millers Mut. Ins. Co., 236 A.D.2d 769, 771, 653 N.Y.S.2d 975 [3d Dept. 1997] ). As such, plaintiff did not meet its heavy burden of showing that the allegations in the personal injury action fell wholly within the policy exclusion (see Automobile Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131, 137–138, 818 N.Y.S.2d 176, 850 N.E.2d 1152 [2006] ; Melito v. Romano, 160 A.D.2d 1081, 1082, 553 N.Y.S.2d 893 [3d Dept. 1990] ), thereby requiring it to defend LePore in that personal injury action (see New York Cent. Mut. Fire Ins. Co. v. Heidelmark, 108 A.D.2d 1093, 1095, 485 N.Y.S.2d 661 [3d Dept. 1985] ).

Plaintiff contends that no coverage exists under the insurance policy because LePore intended to cause physical harm to another person. An insured, however, may be indemnified for an intentional act that causes an unintended injury (see Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 399, 442 N.Y.S.2d 422, 425 N.E.2d 810 [1981] ; McGroarty v. Great Am. Ins. Co., 36 N.Y.2d 358, 363–364, 368 N.Y.S.2d 485, 329 N.E.2d 172 [1975] ; Jubin v. St. Paul Fire & Mar. Ins. Co., 236 A.D.2d at 713, 653 N.Y.S.2d 454 ). To determine whether a result was accidental, "it is customary to look at the causalty from the point of view of the insured, to see whether or not, from [the insured's] point of view, it was unexpected, unusual and unforeseen" ( Miller v. Continental Ins. Co., 40 N.Y.2d 675, 677, 389 N.Y.S.2d 565, 358 N.E.2d 258 [1976] [internal quotation marks and citations omitted]). In describing the incident at issue, LePore stated that she did not intend to hit Cole. The record also contains evidence that Cole was inadvertently hit. In view of this, a sufficient basis exists to conclude that Cole's injuries were not expected or intended within the embrace of the policy exclusion...