At issue in Vermont Mutual Ins. Co. v. Oquendo-Cabanas, No. 21-6050928 (Conn. Super. Ct. July 22, 2022) was coverage owed for an incident in which someone “toss[ed] hot bacon grease” on another.  Unfortunately, the court gives almost no facts of the incident.  There is a probably a really interesting back story here, but we don’t get to hear it. 

[If the underlying case were in federal court, I would have gotten the complaint from Pacer.  Easy.  But it’s in Connecticut state court – and I assume that that would have taken effort.  So we’ll just have to make do with what we have.  If you paid a subscription fee for this fine newsletter, I would have put in the work.]

In the underlying case, Noah Oquendo-Cabanas alleged that Trinity White negligently poured hot bacon grease on him and that Alison White failed to supervise and failed to warn.  That’s about all we know.

Somewhere along the way coverage litigation ensued.  Vermont Mutual and the Whites filed motions for summary judgment on the insurer’s duty to defend and indemnify.

The opinion jointly addresses the “occurrence” requirement and intentional act exclusion and concluded that neither bars coverage: “Here, the only evidence provided as to the subjective intent of Trinity White is that she tried to make Oquendo-Cabanas flinch and intended the grease to come out of the pan onto the floor. Therefore, the only evidence that the court can consider is that the act was intended but the resultant harm was not. As this constitutes an occurrence, thus an accident, Vermont Mutual's exclusion does not apply.”

The opinion is a little confusing.  The court acknowledged – without saying so specifically – that pleading into coverage should not be allowed.  There is a description in the opinion of a clear prohibition on the practice.  The court also stated that “harmful intent may be inferred at law in circumstances where the alleged behavior in the underlying action is so inherently harmful that the resulting damage is unarguably foreseeable.”

But, despite this, the court considered testimony of Trinity White in reaching its conclusion that the intentional act exclusion did not apply.  With that testimony on the table, the court concluded as follows: “Trinity stated that she shook the pan to ‘try to make him flinch.’  She subsequently testified that she ‘flung’ the pan. She didn’t know where Oquendo-Cabanas was when she flung the pan. She did not testify that she intended to pour hot grease on him as asserted in the complaint. However, she did testify that she intended the grease to come out of the pan onto the floor. While she intended to commit the act, she did not intend an injury. There is no factual basis to establish that she intended for an injury to occur or contemplated the consequences of her actions.”

The court saw this as an intent to act, but not intent to injure situation – the classic policyholder argument for coverage in circumstances of this sort.