concluding a claim requiring proof of "knowledgeable or reckless conduct" "does not arise from an 'accident' and, thus, is not the result of an 'occurrence'"
How later courts described this case
- concluding a claim requiring proof of "knowledgeable or reckless conduct" "does not arise from an 'accident' and, thus, is not the result of an 'occurrence'"
- recognizing negligent misrepresentation claim in the context of employer-employee relationship
- suggesting that “arising out of’ means “resulting from”
- allegations of fraudulent misrepresentation did not constitute an accident under the policy because it was not an unexpected happening without intention or design
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
concurring in result.
I am unable to fully concur because of my inability to discern a workable principle of insurance coverage law as enunciated in the Indiana case law. More particularly, I am unable to interpret the varying and seemingly inconsistent use of terminology as used in the cases concerning commercial general liability insurance coverage and as discussed in the majority opinion.
Examination of the cases involving insurance coverage discloses the use of such words and phrases as “accident,” “accidental conduct,” “negligence,” “intentional acts,” and “unexpected happening without intention.” That latter phrase could refer to the tortfeasor’s act, or it might refer to the unforeseen effect of that act, i.e. the injury or damage caused. In any event, the cases do not afford any meaningful guidance when we are called upon to determine whether a requisite “occurrence” has taken place. For example, in R. N Thompson & Assocs., Inc. v. Monroe Guar. Ins. Co., 686 N.E.2d 160, 165 (Ind.Ct.App.1997), trans. denied, a panel of this court distinguished between “an accident of faulty workmanship” and “faulty workmanship which causes an accident,” in holding that there was no “occurrence” within the contemplation of the insurance coverage.
In my view it is too simplistic to say that intentional conduct is no “accident” and that therefore there is no coverage for such situations. It is also too simplistic to say that negligent conduct is “accidental” and that therefore there is coverage. See Wayne Township Bd. of Sch. Comm’rs v. Indiana Ins. Co., 650 N.E.2d 1205 (Ind.Ct.App.1995), trans. denied. But see Erie Ins. Co. v. Am. Painting Co., 678 N.E.2d 844 (Ind.Ct.App.1997), trans dismissed, in which this court held that the negligent hiring of an employee was not accidental because it was intentional and therefore did not constitute an occurrence.’
The majority here holds that the allegation under Count I of Grotts’ complaint 2 “does not arise from an ‘accident’ and, thus, is not the result of an ‘occurrence’ .... ” Op. at 827. This is correct only if R.N. Thompson, supra, is wrong because the latter case held that while negligent i.e. “accidental,” conduct is not within the coverage, unforeseen damage *833 caused by such conduct will be within such coverage.
One might argue that Erie and R.N. Thompson are reconcilable. This is true only if Eñe is read to say that the hiring of the painter was intentional but was done in a negligent manner, and R.N. Thompson is read to distinguish between negligent conduct which is accidental rather than intentional but which causes an unforeseen injury.
Be that as it may, I do not think it would serve any useful purpose to further attempt to delineate what I view as an unfortunate choice of phrasing in the various cases addressing the issue. Suffice it to say that the alleged acts of Barna Log are not within the CGL policy here involved.
For this reason I concur in result.
. This count alleged that Barna Logs "negligently, carelessly, and intentionally” hired an incompetent and unqualified builder. Appellant's App. at 35.