Back in the January 8th issue of Coverage Opinions I mentioned a coverage case involving two guys fighting at a urinal in a bar. Mercury Casualty Co. v. Noll (Cal. Ct. App. Sept. 26, 2013). Well here’s another recent one in the urinal fighting genre. And it’s even more interesting. In Noll the two guys didn’t know each other. But, in Schaefer v. Allstate, No. 27109 (Ohio Ct. App. Apr. 9, 2014), the guy seeking coverage knocked his wife’s lover unconscious at the urinal. In Noll the court flushed the insured’s hope for coverage. But, in Schaefer, the court held that the insured was entitled to coverage.
Of course Schaefer involved whether coverage was owed for a seemingly intentional act. The appeals court reversed the trial court which had found that no coverage was owed for that reason. The appeals court, resting its decision on the basis that an intentional act can be an accident, when the injury is unintended and unforeseen, concluded that, based on the following facts, that there was a genuine issue of fact as to whether the insured’s push to the victim’s shoulder could reasonably be expected to result in him falling over and sustaining injury:
“Musil testified that he noticed Schaefer ahead of him in line for the restroom, but was not certain it was him until Schaefer turned out of line to step up to a urinal. At that time, Musil was approximately three people back from the adjacent urinal. According to Musil, he stepped out of line and stood next to Schaefer. While yelling at Schaefer to leave his wife alone, Musil pushed Schaefer’s right shoulder, attempting to turn him so that Schaefer would be facing Musil. Schaefer fell, hit his head, and was rendered unconscious. Musil testified that he was ‘shocked’ and thought Schaefer was ‘faking it,’ but did not touch him because he was worried that someone would misinterpret his attempt to help. Instead, Musil stood and waited for security to arrive. Schaefer testified that he suffered lacerations and bruises to his head.”
Wow. Two urinal-related liability coverage decisions in a six-month period. I hope we see a steady stream of these.
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