Punch Affirmed -- No Coverage for Party Punch

HOMEOWNERS – ASSAULT – INTENTIONAL ACT – NOT AN "OCCURRENCE" OR "ACCIDENT" – INSURANCE LAW § 3420(D) INAPPLICABLE
State Farm Fire & Cas. Co. v. Whiting
(4th Dept., decided 7/3/2008)

Matthew Whiting and Evan Lang were at a party at Whiting's home. A "visibly intoxicated and unruly" Lang pushed Whiting, knocking him off balance, and then charged at Whiting with fists clenched. Whiting responded by punching Lang in the face, injuring him.

State Farm denied coverage based on the lack of an "occurrence" and brought this DJ action for a declaration that it was not obligated to defend or indemnify Whiting in the underlying personal injury action. Orleans County Supreme Court Justice James Punch (no kidding) granted State Farm's cross motion for summary judgment, and Whiting appealed.

In AFFIRMING the Punch order, the Fourth Department's 3-2 majority concluded that State Farm was not obligated to defend or indemnify Whiting in the underlying personal injury action because the incident was not an "occurrence" within the meaning of the policy. The policy defined an occurrence as "an accident", and the Fourth Department noted than an incident is an occurrence, i.e., an accident, if, "from the point of view of the insured, . . . [the incident resulting in injury] was unexpected, unusual and unforeseen[.]'" Whiting had testified at his deposition that he intended to hit Lang, and that he knew when he hit Lang that Lang "could be hurt from the punch." On this evidence the Fourth Department rejected the dissenting justices' reliance on the Court of Appeals' 2006 decision in Automobile Ins. Co. of Hartford v. Cook (7 NY3d 131) and held that "there is no view of the evidence to support a conclusion that the result of defendant's intentional act of punching Lang in the face 'accidentally or negligently' caused Lang's alleged injuries[.]"

In rejecting the insured's contention that State Farm failed to disclaim coverage in a timely fashion, the Fourth Department also held that since the assault claim fell outside the scope of the policy's coverage because it was not an accident or "occurrence", a disclaimer pursuant to Insurance Law 3420(d) was not necessary.

Believing that the Cook decision was controlling, the two dissenting justices opined that because the complaint in the underlying action alleged that Whiting was negligent in hosting the party and providing alcoholic beverages to persons under the age of 21, and Whiting's description of the events and actions leading to Evan's injury supported the conclusion that the punch or its results were unexpected or unintended by Whiting, State Farm was required at least to defend Whiting in the underlying action.