Defensive Bear Hugging Is Covered

HOMEOWNERS – LIABILITY – INTENTIONAL ACTS EXCLUSION
Clayburn v. Nationwide Mut. Fire Ins. Co.
(App. Term, 3rd Dept., decided 1/15/2009)

Although bears may not bear hug, people sometimes do. From the Appellate Division, Third Department, comes this lesson on when harm that results from intentional grappling is and is not covered.

Mark Clayburn and his brother were walking down a street and passed Robert Tamsett. Mark and Robert exchanged what the appellate decision delicately characterizes as "unkind words" (insert cartoon shorthand $#%$!! here). Tamsett then began to follow the brothers, continuing the verbal argument with Clayburn. Although there was some dispute over who intiated each aspect of physical contact, it was undisputed that at some point Tamsett pushed Clayburn to the ground. Tamsett and Clayburn then became "physically engaged", with Tamsett holding Clayburn in a bear hug. They struggled and lost their balance, falling through a plate glass window of a nearby store. Tamsett pleaded guilty to harassment based on his involvement in the incident.

Clayburn sustained severe facial lacerations as a result of the incident and brought a personal injury action based on negligence against Tamsett, who qualified as an insured under his parents' homeowners policy with Nationwide. Despite the negligence allegations, Nationwide disclaimed both defense and indemnification coverage to Tamsett based on the policy's exclusion for bodily injury

caused intentionally by or at the direction of an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured's conduct.

After a bench trial in that underlying action, Montgomery Supreme found Tamsett negligent and entered a judgment against him for his portion of the damages. Clayburn then commenced this action directly against Nationwide pursuant to New York Insurance Law § 3420(a)(2) and Clayburn moved for summary judgment.

In MODIFYING the order appealed from granting plaintiff's motion to declare that Nationwide was obligated to indemnify Tamsett in relation to the judgment rendered against him, the Third Department held:

Supreme Court properly determined that the intentional acts exclusion does not bar coverage here. The policy at issue excludes coverage for bodily injury "caused intentionally by or at the direction of an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured's conduct." To successfully bar coverage under an insurance policy's intentional acts exclusion, the insurer must prove that there is no possible legal or factual basis to support a finding that, from the point of view of the insured, the bodily injuries inflicted were unexpected, unintended and unforeseen (see Agoada Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145 [2000]; Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 770 [1998]; Home Mut. Ins. Co. v Lapi, 192 AD2d 927, 928 [1993]). Yet courts are wary of claims that intentional acts resulted in unintended injuries where the harm "was inherent in the nature and force" of the wrongful act (Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d at 771; see New York Cent. Mut. Fire Ins. Co. v Wood, 36 AD3d 1048, 1049 [2007]).

Here, while Supreme Court acknowledged that Tamsett intentionally placed his hands upon plaintiff, the court found that Tamsett did so in an attempt to subdue plaintiff or ward off an attack, "as opposed to beat him." Tamsett and plaintiff did not exchange any punches, or even any words. Tamsett merely wrapped his arms around plaintiff in response to plaintiff approaching him after Tamsett pushed Clayburn to the ground. We accept the court's determination that Tamsett did not expect, intend or foresee that plaintiff would end up crashing through the plate glass window or be injured in any way when Tamsett placed him in a bear hug (see Baldinger v Consolidated Mut. Ins. Co., 15 AD2d 526, 526 [1961], affd 11 NY2d 1026 [1962]; compare Smith v New York Cent. Mut. Fire Ins. Co., 13 AD3d 686, 688 [2004]; Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376 [1987]). Plaintiff's injuries were not inherently likely to result from the nature and force of a defensive bear hug. Under the circumstances, the intentional acts exclusion does not apply (see Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293 [2002]; cf. Allstate Ins. Co. v Zuk, 78 NY2d 41, 46 [1991]).

In defending the 3420(a)(2) action, Nationwide also argued that the policy's criminal acts exclusion negated coverage for the judgment against Tamsett, since he had pleaded guilty to criminal harassment. In rejecting that argument, the court noted that Nationwide could not rely on that exclusion because it had failed to include that ground in its disclaimer letter, citing Maroney v New York Cent. Mut. Fire Ins. Co., 10 AD3d 778, 780-781 (3rd Dept 2004), affd 5 NY3d 467 (2005).

Although wrestlers and mixed martial arts/extreme fighters may use bear hugs in an offensive manner, injuries that result from purely defensive bear hugging are not negated by a homeowners policy's intentional acts exclusion, at least in the opinion of the Third Department.