Posted: November 26, 2019

Exclusion for “Intentional and Criminal Acts” Barred Defense Coverage for Parents Accused of “Negligent Supervision” of Minor Son Who Committed Sexual Assault

Posted by Bradley J. Nash, Litigation Partner

On November 20, 2019, Judge Briccetti of the SDNY issued a decision in Metropolitan Prop. & Cas. Ins. Co. v. Comley, Case No. 18-cv-9259 (VB), holding that a liability insurer properly denied defense coverage, under an exclusion for “intentional and criminal acts”, for a lawsuit alleging “negligent supervision” of the insureds’ minor son, who committed a sexual assault.

The policy at issue—a homeowners’ policy—covered both the parents and their “relatives”, who are “resident[s] of the same household.” The policy’s “intentional and criminal acts” exclusion barred coverage for bodily injury “which is reasonably expected or intended by you or which is the result of your intentional and criminal acts or omissions.” The terms “you” and “your” included both the parents and the minor son.

The parents argued that they were entitled to defense coverage because the claims against them included an allegation of “negligence” in supervising their minor son, as opposed to intentional conduct. Judge Briccetti disagreed and granted judgment on the pleadings to the insurer, explaining:

Here, the Anthony action alleges T.C. perpetrated a sexual assault and that B.S. sustained bodily injury as a result. In other words, B.S.’s alleged injuries are “the result of” T.C.’s intentional criminal conduct, for which he has pleaded guilty. The same would be true even if the Colmeys’ indeed were negligent in the supervision of their minor son. Either way, T.C.’s conduct was intentional.

In making this determination, the Court is guided by Kantrow v. Security Mutual Insurance Co., 49 A.D.3d 818 (2d Dep’t 2008). There, plaintiff parents of a minor accused of sexually assaulting another minor sued their homeowners policy insurer for a declaration obligating the insurer to defend and indemnify them in an underlying action brought by the victim and her mother. Id. at 818–19. The complaint in the underlying action accused the plaintiff parents of negligent supervision, specifically the “careless and negligent . . . failure to properly supervise their minor son, who [they] knew had a predisposition to commit sexual acts.” Id. at 818. The court, relying on the New York Court of Appeals’ decision in Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153 (1992), affirmed the trial court’s determination that one minor’s sexual assault of another constituted an intentional act for which the plaintiff parents’ insurance policy did not provide coverage. Id. at 819 (“Thus, despite the fact that the underlying complaint couches its allegations against the Kantrows in negligence by asserting that the Kantrows permitted or failed to stop their son’s conduct, coverage is excluded, since the gravamen of the underlying action seeks to hold the Kantrows liable for the injuries resulting from their son’s intentional acts.” (citing Allstate Ins. Co. v. Mugavero, 79 N.Y.2d at 163–64)).

Here, just the same. The “gravamen” of the Anthony action seeks to hold the Colmeys liable for injuries resulting from T.C.’s intentional acts. See Kantrow v. Sec. Mut. Ins. Co., 49 A.D.3d at 819. Accordingly, the policy’s intentional act exclusion precludes coverage for any alleged harm resulting from T.C.’s intentional conduct.

Liability policies, like the homeowners policy in this case, cover “accidents”, not intentional wrongdoing. As previously discussed on this blog, in certain circumstances, there can be coverage for the unintended consequences of intentional acts, even where the harm is foreseeable. However, an injury is “intentionally caused” and thus not accidental if the “damages . . . flow directly and immediately from an intended act” rather than “a chain of unintended though expected or foreseeable events that occurred after an intentional act.” Brooklyn Law Sch. v. Aetna Cas. & Surety Co., 849 F.2d 788, 789 (2d Cir. 1989) (citation omitted). Because the minor son was himself an insured, his intentional conduct triggered the exclusion, even though the parents were accused of negligence.

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