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Vol. 4, Iss. 9
September 30, 2015

This One I Don’t Get: “Physical Abuse” Exclusion Applies To A Shooting


Just because I represent insurers doesn’t mean that I agree with every decision that an insurer wins. And just because an insurer takes a position in a case doesn’t mean that it’s one that I would have recommended to a client. If I were that narrow-minded, or acted that reflexively, I wouldn’t be much of a lawyer. Miglino v. Universal Property & Casualty Company, No. 4D13-4161 (Fla. Ct. App. Aug. 19, 2015) falls into both of these categories.

Miglino goes like this. Harvey Stein lent a gun to his sister, Cheryl Hepner, who used the gun to shoot her son-in-law, Salvatore Miglino. Miglino and Hepner’s daughter were in the midst of divorce proceedings at the time. Miglino filed suit against Stein and Hepner. Universal P&C initially defended Stein under a reservation of rights, but then filed a declaratory judgment action seeking a determination that it had no duty to defend or indemnify.

At issue was the applicability of an exclusion (k) for damages “[a]rising out of sexual molestation, corporal punishment or physical or mental abuse.” The policy did not define “physical abuse.”

The trial court found in favor of Universal that the exclusion applied. An appeal ensued, with Miglino pursuing the coverage. Miglino argued “that the trial court erred in determining that exclusion k. applies to exclude coverage because the shooting does not fit within the dictionary or case law definitions of physical abuse, and therefore, the insurance policy exclusion does not apply to the shooting. He specifically likens the definition of physical and mental abuse to torture or actions meant to humiliate or demean. We must disagree, as the plain meaning of the words ‘physical abuse’ includes an instance such as the subject shooting.”

With no definition of “physical abuse” in the policy, the court turned to dictionaries, noting that Black’s Law defines “physical,” in pertinent part, as “[r]elating or pertaining to the body, as distinguished from the mind or soul or the emotions. And Black’s defines “abuse” as “[p]hysical or mental maltreatment, often resulting in mental, emotional, sexual, or physical injury,” and “[t]o injure (a person) physically or mentally.” A non-legal dictionary defined abuse as: “[t]o hurt or injure by maltreatment.”

Using these definitions as guidance, the court held: “The plain meaning of ‘physical abuse’ encompasses the intentional shooting of Miglino by the sister. Such an act clearly constitutes ‘physical ... maltreatment’ ‘physical injury,’ and ‘hurt or injur[y] by maltreatment.’”

Miglino argued that the exclusion did not apply because there was no torture, torment, humiliation, or degradation present in the sister’s act of shooting him. However, looking at other decisions addressing a “physical abuse” exclusion, the court noted that none of them held that “these elements were necessary for the acts in question to rise to the level of physical abuse or for the policy exclusion to apply.”

Ask yourself -- would you have felt strongly enough that a shooting is “physical abuse” to recommend to an insurer that it file a Declaratory Judgment action?



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