In American National Property and Casualty Companies v. Thomas W. Hearn and Clayton Russell, the boundaries of an intentional act exclusion were tested in a case involving an adolescent “game.”
The underlying claim arose one night when Hearn and Russell were sixteen-year old boys hanging out in Russell’s basement with a group of friends. Russell was playing “Dance, Dance Revolution”, a video game, when he was struck in the testicles by Hearn from behind. Hearn testified that he did not intend to inflict serious pain on Russell, merely to deliver a “ball tap”, which the group of friends apparently had done regularly when one of them was “doing something stupid” (according to Hearn). Russell suffered immediate pain and was hospitalized with a testicular torsion. Russell and his mother sued Hearn and his parents for negligence, battery, assault and intentional infliction of emotional distress. They requested punitive damages.
Simultaneously, American (the Hearns’ homeowners insurer) filed a declaratory judgment action on the basis that the claim arose from an intentional act that was excluded by the policy. The Court granted American’s motion for summary judgment. Russell, a defendant to that action, appealed arguing that Hearn did not intend to cause him the harm that actually occurred, and that coverage should not be excluded.
In affirming summary judgment, the Superior Court found that Hearn’s act of hitting Russell was clearly intentional. It reasoned that Pennsylvania insurance contract interpretation does not require coverage for intentional acts resulting in bodily injury even in circumstances where the harm was different than what was expected or intended by the insured. In fact, the American policy specifically notes that the intended injury clause applies “even if the actual injury or damage is different than expected or intended.”
Furthermore, the court held that there was no occurrence during the policy period, because the intended harm was not an “accident” under the policy definition. Thus, given these considerations, the court determined that no coverage was owed under the American policy.
Thanks to Remy Cahn for her contribution.