NY Appellate Court Holds That Acts of Self-Defense Triggered Intentional Acts Exclusion in Liability Policy

In a case of first impression in New York, the Appellate Division, Fourth Department affirmed a decision addressing the following issue: are acts of self-defense resulting in bodily injury or death excluded from coverage under the "intentional acts" exclusion of a liability insurance policy? Yes, said the Court. Leo v. New York Cent. Mut. Fire Ins. Co., ___ A.D.3d ___, 2016 NY Slip Op 00846 (4th Dep't, Feb. 5, 2016).

Leo involved a violent confrontation between the plaintiff, Mark Leo, and the decedent, Anthony Sciortino. Leo and Sciortino had plans to meet, and prior to their meeting, Leo retrieved a baseball bat from his garage and placed it in his vehicle, although he "didn't intend to have to use the bat." According to Leo, he took the bat because he "didn't want to be caught empty handed." Leo claimed that he was "petrified for [his] life" and "had a feeling that something was going to happen." When they met, Leo attempted to talk to Sciortino, but according to Leo, Sciortino swung a metal pipe at him twice. At that point, Leo struck Sciortino with the bat in the head or back of the neck, and eventually hit him a second time in the head or neck area.

Sciortino died from his injuries, and Leo was criminally charged with Manslaughter in the 2nd degree. At his criminal trial, Leo asserted the defense of justification (i.e., self-defense) and was acquitted of the charge. Following the disposition of Leo's criminal case, Sciortino's estate instituted a wrongful death action against Leo. The parties settled the case for $50,000, and although a stipulation was placed on the record, no findings were specified as to the theory of liability for the wrongful death award (i.e., negligence or intentional tort).

Leo's liability insurer, New York Central Mutual Fire Insurance Company ("NYCM"), had agreed to provide a defense in the wrongful death action but disclaimed any duty to indemnify Leo for any settlement or judgment. Leo commenced a separate action seeking a declaration that NYCM was required to indemnify him in the wrongful death action (which rights were assigned to Sciortino's estate as part of the settlement). The parties filed motions for summary judgment, and Supreme Court granted NYCM's motion, holding that it had no duty to indemnify Leo in the underlying action.

The policy issued by NYCM provided coverage for personal injury resulting from an "occurrence," meaning an "accident," and contained a standard exclusion for "bodily injury . . . which is expected or intended by an insured" (and, significantly, the exclusion had been amended prior to the accident to remove coverage for acts of self-defense). The question, then, was whether Leo's acts of self-defense were properly excluded from coverage as intentional acts. In other words, did Leo's acts of self-defense change "the transaction as a whole from an intentional act to that of an 'accident' and an unintended and unexpected injury"?

The Fourth Department found that the exclusion applied, affirming the decision in favor of the insurer for the reasons stated by the trial court. According to the trial court, a jurisdictional "split" exists as to whether an act of self-defense a liability policy and whether bodily injuries inflicted therein fall within the above exclusion for "expected or intended" acts. The trial court ruled in favor of NYCM, agreeing with those states finding "that injuries from intentional acts of self-defense are properly excluded from coverage under the intentional acts exclusion." The trial court rationalized "that self-defense is merely a motivation or justification for conduct that would otherwise be intentional and unlawful." The Fourth Department affirmed this reasoning in a 4-1 decision, with Presiding Justice Whalen issuing the sole dissent finding that the issue of the insured's intent should be decided by the trier of fact.

Leo is significant because the Court distinguished between clearly intentional acts, such as assault and battery, and conduct amounting to self-defense. Whereas an act of self-defense may properly qualify as a privileged use of force to negate criminal and civil liability, that does not alter its character as an intentional act for purposes of evaluating insurance coverage. The decision is consonant with the majority of jurisdictions that have similarly refused to create a self-defense exception to the intentional act exclusion.

It bears noting, however, that the Court in Leo emphasized that the underlying case had been settled with no finding as to whether the insured had acted with intent and that the exclusion had been amended to remove coverage for acts of self-defense. Thus, courts may not enforce the "intentional acts" exclusion in liability policies under other circumstances. Finally, it should also be noted that liability insurers seeking to rely upon a policy exclusion in conjunction with a bodily injury claim in New York State are cautioned to be sure to disclaim promptly, pursuant to New York Insurance Law § 3420.