the policy exclusion point, arguing that: (1) the exclusion does not apply because Rubin did not intend to injure Moncada and (2) the claim is covered by the policy because it constituted an injury resulting from "the use of reasonable force to protect person or property," and such injuries are excepted from the exclusion.
Is the alleged assault a covered occurrence?
Paragraph 9 of the "Definitions" section of the Aetna policy states: "'Occurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
The New York Court of Appeals has held that the term "accident" should be construed "as would the ordinary man on the street or ordinary person when he purchases and pays for insurance." Arthur A. Johnson Corp. v. Indemnity Ins. Co., 7 N.Y.2d 222, 227, 196 N.Y.S.2d 678, 682, 164 N.E.2d 704 (1959) (construing liability insurance policy of a building contractor). The Court has described an "accident" as an event which "from the point of view of the insured . . . was unexpected, unusual and unforeseen." Miller v. Continental Ins. Co., 40 N.Y.2d 675, 676, 389 N.Y.S.2d 565, 566, 358 N.E.2d 258 (1976) (construing accidental death policy).
New York courts have held that an accident need not necessarily be an entirely fortuitous event. "Any injury resulting from ordinary negligence is considered to be accidental." Allstate Insurance Co. v. Klock Oil Co., 73 A.D.2d 486, 488, 426 N.Y.S.2d 603, 605 (4th Dept. 1980) (construing comprehensive general liability policy). Moreover, injuries that are the "accidental results" of intentional acts may, depending on the facts of the case, come under the definition. Barry v. Romanosky, 147 A.D.2d 605, 607, 538 N.Y.S.2d 14, 16 (2d Dept. 1989) (construing liability policy of a discotheque). However, injuries "which flow directly and immediately from an intended act" are not considered accidental. Continental Insurance Co.v. Colangione, 107 A.D.2d 978, 979, 484 N.Y.S.2d 929, 930 (3d Dept. 1985) (construing general liability policy of subcontractors), citing Mary & Alice Ford Nursing Home v. Fireman's Ins. Co., 86 A.D.2d 736, 738, 446 N.Y.S.2d 599, 601 (3d Dept.), aff'd, 57 N.Y.2d 656, 454 N.Y.S.2d 74, 439 N.E.2d 883 (1982).
Rubin and the Gallery rely on and draw an analogy to Barry v. Romanosky. In that case, Romanosky fired buckshots into the front door of a night club, intending only to damage the door in retaliation for his ejection from the premises. Unknown to him, the plaintiff was standing behind the door and was injured by the shots. The plaintiff sued Romanosky for negligent injury and sought a declaratory judgment that the night club's insurance company had a duty to indemnify the defendant. The Appellate Division, Second Department, held the injuries to be accidental on the grounds that "he only intended to damage the door of the discotheque and that he did not think that anyone would be injured." 147 A.D.2d at 606, 538 N.Y.S.2d at 15.
Rubin and the Gallery argue that because in the case at hand Rubin intended only to prevent Moncada from videotaping, any injury resulting from her pushing of the camcorder must likewise be considered accidental.
The allegations and agreed facts of this case do not support the argument that Moncada's injuries were accidental within the meaning of the policy and the decisions cited above. Moncada's cause of action is for "malicious assault" -- an intentional act, not for negligence. Rubin concedes that she purposefully "touched plaintiff's camcorder in an effort to prevent him from videotaping." (Def. Mem. at 4.) Moreover, the alleged injury to the Moncada's eye was the direct result of Rubin's "touching" of the camcorder and not anything "unexpected, unusual and unforeseen." Miller, 40 N.Y.2d at 677, 389 N.Y.S.2d at 566. None of the parties has suggested that Moncada's alleged injuries resulted from anything other than the natural consequences of Rubin's action. Injuries "which flow directly and immediately from an intended act" are not considered accidental. Continental Insurance Co. v. Colangione, 107 A.D.2d 978, 979, 484 N.Y.S.2d 929, 930 (3d Dept. 1985)
Accordingly, under the definition set forth by the New York courts, the event in question was not an "accident," and the alleged injury to Moncada's eye cannot be considered "accidental." Therefore, it follows that the incident is not a covered "occurrence" under the Gallery's commercial general liability policy.
Does Aetna have a duty to defend?
The New York Court of Appeals has specified the standard for reviewing an insurer's duty to defend in A. Meyers & Sons Corp. v. Zurich American Ins. Group, 74 N.Y.2d 298, 302, 546 N.Y.S.2d 818, 820, 545 N.E.2d 1206 (1989):
The duty of a liability insurer to defend an action brought against an insured is determined by the allegations in the complaint. If the facts alleged raise a reasonable possibility that the insured may be held liable for some act or omission covered by the policy, then the insurer must defend. If no such possibility is raised, no duty to defend is owed under the policy. (Citations omitted.)
Because we find that Rubin's action is not a covered "occurrence," Aetna has no duty to defend.
* * *
Aetna's motion to dismiss the third-party complaint against it is granted.
It is so ordered.
Dated: November 4, 1993
New York, New York
Morris E. Lasker
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