Thursday, September 4, 2008

Food Fighting Coverage -- Middle School Cafeteria Garbage Can Hurler Entitled To Defense & Indemnification

Medrano v. State Farm Fire & Cas. Co.
(2nd Dept., decided 9/2/2008)

While Medrano was working as a middle school aide monitoring students during lunch in the cafeteria, a "food fight" broke out among eighth-grade students. [The decision doesn't indicate at what volume and velocity of tossed food and number of combatants such a fracas qualifies as a "food fight" or whether the aide received battle pay for her station in the cafeteria.] The food fight escalated into the use of non-foodstuff, heavy artillery, when student Robert Filer threw a garbage can into the air, striking and injuring Medrano.

At the time of the incident, Robert qualified as an "insured" under his parents homeowners insurance policy with State Farm. Medrano and her husband sued Robert, alleging that he negligently, carelessly, and recklessly caused Medrano's injuries. State Farm denied liability coverage for the claims asserted against Robert in the personal injury action stating, inter alia, that the alleged incident did not qualify as an "occurrence," which the policy defined as an accident, and that the policy contained an exclusion for a claim for bodily injury that either was expected or intended by the insured or was the result of willful and malicious acts of the insured.

The Medranos then commenced this action for a judgment declaring that State Farm was obligated to defend and indemnify Robert in connection with the underlying personal injury action. Queens Supreme granted the Medranos' motion for summary judgment declaring that State Farm was so obligated, granted Filer's cross motion for the same relief, and denied State Farm's cross motion for summary judgment. The court reasoned, in part, that the complaint in the underlying action alleged negligence. It further based its determination on the deposition testimony of Filer, which indicated a lack of intent to injure Medrano, ruling that this was sufficient to bring the underlying personal injury action within the parameters of the policy, and to create a duty to defend. State Farm appealed.

In AFFIRMING the lower court's order, the Second Department held:
State Farm failed to demonstrate its entitlement to judgment as a matter of law since it did not show that the allegations of the complaint fell wholly outside coverage or within any valid policy exclusion. The allegations of negligence in the complaint implied an unintentional or unexpected event which potentially gives rise to a covered claim as against Filer (see Barry v Romanosky, 147 AD2d 605).

The plaintiffs and Filer demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that Filer did not intentionally cause injury to the plaintiff, and that although such injury may have been the unintended result of Filer's conduct, it was not the result of a willful and malicious act (see Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293; Allegany Co-op Ins. Co. v Kohorst, 254 AD2d 744, 745; Baldinger v Consolidated Mut. Ins. Co., 15 AD2d 526, affd 11 NY2d 1026). In opposition, State Farm failed to raise a triable issue of fact.

Middle school cafeteria + food fight + flying garbage can + injury- proof of intent to injure = coverage, at least in the opinion of the 2nd Department.

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