In my liability coverage class, I spend a of time addressing with the students whether “bodily injury” or “property damage” was caused by an accident (“occurrence”).  And it makes sense that I would do so.  After all, when it comes to general liability coverage, “what is an accident?” is the number one most important, frequently litigated and challenging issue.  It is the gateway to the policy and relevant to every claim. 

The number of potential accidents is infinite.  This is one reason why the issue is so complex, with courts having struggled with it for well over a century.  To prove this point, I have my students read a case from the Wisconsin Supreme Court from 1869, where the court addressed whether someone’s death was caused by an accident.  The students then read several modern “accident” coverage cases and quickly see that the issues and struggles have not changed since President Grant was in the White House.  This 19th century opinion reads like it was written a week ago.

In general, at the heart of the “accident” question, is an insured’s intent [or not] to cause injury or damage by his or her act.  Invariably, in my discussion with the class, I raise the situation of someone that seeks to strike and injure person A – which would not be an accident -- but they miss and hit person B.  So, is the injury to person B the result of an accident?  I suspect that this classic hypothetical is used in many insurance and tort law classes.

So, image my surprise, and delight, when a New York appeals court addressed just this hypothetical situation.

Jodi Cole filed suit against Amanda LePore for personal injuries sustained when, as a school staff member, she was injured trying to break up a fight between LePore and another student. “After LePore and the student were separated,” the court stated, “the student said something to LePore and, in response, LePore tried to hit her. Cole had her back to LePore at this time and then ‘felt somebody come up and over [her].’ According to a witness, LePore ‘took a swing and inadvertently hit [Cole] with her forearm.”  Cole fell into a cement wall. 

At issue in Vermont Mut. Ins. Group v. LePore, No. 534864 (N.Y. App. Div. Dec. 8, 2022) was coverage for LePore under a homeowner’s policy.  The court’s task was to address whether Cole’s injury was caused by an “occurrence” (accident) and the potential applicability of the expected or intended exclusion. 

The court, addressing these two aspects of the policy jointly, as is often the case, held that coverage was available for LePore:

“Plaintiff contends that no coverage exists under the insurance policy because LePore intended to cause physical harm to another person. An insured, however, may be indemnified for an intentional act that causes an unintended injury. (citations omitted)  To determine whether a result was accidental, ‘it is customary to look at the casualty from the point of view of the insured, to see whether or not, from [the insured’s] point of view, it was unexpected, unusual and unforeseen.’ (citations omitted)  In describing the incident at issue, LePore stated that she did not intend to hit Cole. The record also contains evidence that Cole was inadvertently hit. In view of this, a sufficient basis exists to conclude that Cole’s injuries were not expected or intended within the embrace of the policy exclusion.  (citations omitted)  To that end, LePore can be indemnified under the policy, not because she acted negligently, but because her intentional act caused unintended harm.”

Having read a gazillion “accident” coverage cases, I am not overly surprised by this decision.  While not every court would have ruled this way, it is not shocking for a court to conclude that an intentional act, that results in unintended harm, is an accident.  And this was the conclusion of the Wisconsin Supreme Court’s decision in Schneider v. The Provident Life Insurance Company 150 years ago.