I’m going to diverge once again from my normal rule of commenting only on brand-new coverage cases, because I stumbled upon this interesting blog post about a case in New York involving the duty to defend. The post convinced me I needed to read the case, Automobile Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131 (June 8, 2006), and I’m glad I did, because the analysis is pretty good and the case is about a tricky duty to defend issue that I’ve previously blogged about here and here and here.
The facts of this case are fairly gruesome and Quentin Tarantino-like. It involves two guys named Cook and Barber, who had some kind of falling out over business. According to the court, "Barber, weighing about 360 pounds, was approximately three times Cook’s size and had previously attacked the smaller man, causing injury to his leg." One morning, Barber and another man were discovered outside Cook’s home, "hurling objects at the house." Later that day, Barber returned with his companion and two others. Cook locked the door and got a .25 caliber handgun from his bedroom. I doubt I can improve upon the court’s description of what happened next, so here it is:
There was further testimony that the group burst into Cook’s home. The four individuals gathered in the kitchen where Barber began demanding money from Cook while pounding his fists on the kitchen table. Cook, alarmed, drew his gun and demanded that they leave his house. Barber apparently laughed at the small size of the pistol, at which point Cook withdrew to his bedroom for a larger weapon. He picked up a loaded, 12 gauge shotgun and stood in his living room at the far end of his pool table. Cook again ordered them to leave the house.
Although Barber started to head toward the door with his companions, he stopped at the opposite end of the pool table, turned to face Cook and told his companions to take anything of value, and that he would meet them outside because he had some business to attend to. When Barber menacingly started advancing toward Cook, Cook warned him that he would shoot if he came any closer. Cook aimed his gun toward the lowest part of Barber’s body that was not obscured by the pool table—his navel. When Barber was about one step away from the barrel of the gun, Cook fired a shot into Barber’s abdomen. Barber died later that day at a hospital.
(I take several lessons from this account, one of which is: do not laugh at the size of a man’s gun, lest he replace it with a much larger and more dangerous gun).
Cook was prosecuted but found innocent by a jury. Barber’s estate later sued him, and his homeowners insurer brought a declaratory action seeking a judgment of no duty to defend or indemnify. Not surprisingly and probably solely to try to draw in insurance coverage, the Barber estate’s complaint alleged that Cook negligently killed Barber, as an alternative to a claim for intentional killing. One more salient fact. About his mental state before the killing, Cook testified as follows: "I knew the [shot from the] shotgun would injure Mr. Barber because I had to stop him, but I did not anticipate it killing him."
On summary judgment, the trial court found the insurer had a duty to defend. The Appellate Division reversed, saying the policy’s exclusion for intentional acts precluded both defense and indemnity. The state’s highest court, which is called the Court of Appeals, reinstated the trial court’s decision, saying the duty to defend must be considered only with regard to the allegations of the complaint. Unless the allegations can result only in a verdict that the act was intentional, the Court of Appeals said, a duty to defend exists. Mind you, that is a completely different analysis from whether a duty to indemnify exists. In states where extrinsic facts are not considered in a duty-to-defend analysis, the result of this case is the one you will see almost every time.