court denied coverage for assault where homeowner’s policy excluded injuries intentionally caused by the insured, and reasoned that “intent may be established either by showing an actual intent to injure, or by showing . . . the act to be such that intent to cause harm .. . must be inferred as a matter of law”
How later courts described this case
- court denied coverage for assault where homeowner’s policy excluded injuries intentionally caused by the insured, and reasoned that “intent may be established either by showing an actual intent to injure, or by showing . . . the act to be such that intent to cause harm .. . must be inferred as a matter of law”
- stating that intent cannot be established
- "[A] person should not be permitted to insure against harms he may intentionally and unlawfully cause others, and thereby acquire a license to engage in such activity." (emphasis added)
- declaratory judgment entered after trial
Written by the judges who cited it.
The opinion
Dissenting Opinion
Staton, P.J.
I dissent from the majority opinion. I would affirm the trial court’s declaratory judgment on the duty to defend for three reasons.
First, the majority has determined witness credibility when it concluded that the intent to defend by striking back is an intent to injure. Neilsen testified that Smolek attacked him without any prior threat or use of force by Neilsen. (Tr. 184-85 also on cross-examination at TR. 186). He further testified that he did not intend to injure Smolek when he struck him. (Tr. 717). Smolek did not testify but was deposed. The trial court' determined the credibility of the witnesses and weighed the evidence which is its function.
Second, by construing “. . . caused intentionally . . .” to include those acts done in self defense which result in injury, the majority has decided not only Home Insurance Company’s duty to defend but Home insurance Company’s liability under the policy. If a jury would later find that Neilsen’s striking in self defense was justified, Neilsen could not recover defense attorney fees. If a jury were to find the contrary, that the striking was not justified, no recovery could be had against the insurance policy.
Third, the insurance contract clause is ambiguous. It provides :
“(d) under Coverage G and H [comprehensive liability and medical payments] to bodily injury or property damage caused intentionally by or at the direction of the Insured;”
*453 Its terms do not expressly exclude justifiable self defense bodily injury.. Its terms can only embrace those bodily injuries which are deliberately perpetrated with preconceived designs and without legal justification. Justice Hunter, writing for the Indiana Supreme Court in Freeman v. Commonwealth Life Ins. Co. (1972), 259 Ind. 237 , 286 N.E.2d 396 , 397 wrote: “It is the rule, as the petitioner admits, that an ambiguous term in an insurance policy will be resolved in favor of the insured.” I can not agree with the majority’s conclusion that “. . . to afford such coverage upon the basis of the policy before us would not be to interpret its ambiguity. We would instead be rewriting the contract agreed to by the parties to provide an additional coverage.” I would resolve the ambiguity in favor of the insured, Neilsen, and I would affirm the trial court’s judgment.
Note. — Reported at 332 N.E.2d 240 .