Sunday, April 27, 2008

Intentional Act Not an "Occurrence" -- No Duty to Defend or Indemnify

Desir v. Nationwide Mut. Fire Ins. Co.
(3rd Dept. decided 4/24/2008)

In Desir v. Nationwide Mut. Fire Ins. Co., 2008 NY Slip Op 3578, 1 (2nd Dept. decided 4/22/2008), the 2nd Department ruled that Nationwide was not obligated to defend or indemnify its insured because the assault alleged in the underlying action was an intentional act, which did not constitute an "occurrence" within the meaning of the policy at issue. The court also noted that the inclusion in the underlying complaint of causes of action sounding in negligence and alleging carelessness did not alter the fact that "the operative act giving rise to any recovery is the assault".

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