Insurers are well aware of the length courts go to in declining to enforce intentional acts exclusions.  Even in cases where the intentional nature of alleged misconduct is obvious, courts often refuse to apply intentional acts exclusions.  While the reasoning is often artfully worded, the logic often goes something like this – – “well, the defendant may have intended to set that house on fire, but he may not have.  Exclusion inapplicable.”

The Third Department recently resisted this approach in Graytwig v. Dryden.  There, the insured was the owner of a bar whose employee allegedly injured a claimant when he forcibly ejected him from a bar.  In the underlying action, the claimant alleged that he suffered injuries when the insured’s employee put him in a headlock and pushed him onto an icy sidewalk, where he allegedly hit his head.

The insured sought coverage under his policy, which contained an assault exclusion.  The exclusion, which stated it was “subject to the terms contained in the General Liability Coverage,” provided that “notwithstanding anything contained herein to the contrary…this policy excludes any and all claims arising out of assault, battery, fight, altercation, or similar misconduct…”

The insured argued the exclusion was inapplicable because it was subject to the terms contained in the policy’s general liability coverage.  The court rejected this “attempted assault” on the English language, based on the fact the exclusion contained the words “notwithstanding anything contained herein to the contrary.”  The insured also argued the assault exclusion was inapplicable because the insured could be held liable under a negligence theory, the implication being that assault is an intentional tort.  The court also rejected this argument, based on the reasoning that no cause of action would exist but for the alleged assault.  Thus, there was no coverage.

Negligence theories can often defeat intentional acts exclusions, but that often isn’t the case when the theory is assault, and the exclusion is specific.  An exclusion generally referring to intent is often insufficient, but Graytwig is an excellent reminder that exclusions are more likely to apply when they are specific.  Thanks to Michael Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.