One man hits another with a beer bottle. The bottle is now permanently embedded in the victim's head, and he's now known by the nickname "Molson."

The perpetrator - insured by the company you have been retained to defend - has timely advised you of the incident and is being sued for his conduct. Does an insurer have an obligation to defend and indemnify?

Liability insurers face these questions with some regularity. Insurance policies cover accidents or occurrences, and without one - an incident in which someone causes bodily injury or property damage that the insured did not expect or intend - an insured cannot expect the protection of a homeowners' or general-liability insurer.

Policies contain different kinds of exclusions to coverage. Some policies exclude unexpected or unintended injuries. Others focus on the conduct of the insured, rather than the expectation of result.

The most recent Court of Appeals case analyzing this "expected or intended" exclusion was decided in 2006. In Automobile Ins. Co. of Hartford v. Cook (7 N.Y.3d 131, 2006), one Alfred Cook shot and killed Richard Barber inside his home. Barber weighed about 360 pounds, was approximately three times Cook's size and had previously attacked the smaller man, causing injury to his leg. The facts - as taken from the decision - outline a purposeful gunshot by the homeowner to an intruder who may have felt threatened. Cook aimed the gun at the lowest part of Barber's body (not obscured by an intervening pool table), and Barber ended up dying as a result.

A wrongful-death action was commenced against Cook. The first cause of action alleged that "Injury to the decedent and the decedent's death were caused by the negligence of the defendant, Alfred S. Cook." Specifically, the complaint alleges that Cook's behavior "consisted of negligently playing with a loaded shotgun; negligently pointing that shotgun at the abdomen of the decedent; negligently discharging that shot gun into the decedent's abdomen; and engaging in unruly behavior at the defendant's residence on February 20, 2002."

In a second cause of action, the complaint alleges that Cook intentionally shot Barber, causing Barber's death. At his examination before trial, Cook testified, "I knew the (shot from the) shotgun would injure Mr. Barber, because I had to stop him, but I did not anticipate it killing him."

The Court of Appeals held that the insurer had to provide, at the minimum, a defense to its insured. "It is well settled," the court wrote, "that an insurance company's duty to defend is broader than its duty to indemnify. Indeed, the duty to defend is ‘exceedingly broad' and an insurer will be called upon to provide a defense whenever the allegations of the complaint ‘suggest ... a reasonable possibility of coverage.'

"An examination of the wrongful death complaint," the court continued, "leads to the conclusion that Cook's claim is covered by the policy. Among other things, the complaint alleges that Cook negligently caused Barber's death. If such allegations can be proven, they would fall within the scope of the policy as a covered occurrence.... Thus, if Cook accidentally or negligently caused Barber's death, such event may be considered an ‘occurrence' within the meaning of the policy and coverage would apply."

The New York courts look at that differently from "assault" exclusions, which focus on the act of assault rather than on the intended results. Compare the exclusions above with the one considered by the Court of Appeals in the Mount Vernon case: "It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on assault and battery, and assault and battery shall not be deemed an accident whether or not committed by or at the direction of the insured" (Mount Vernon Fire Ins. Co. v. Creative Hous., 88 N.Y.2d 347, 350, 1996).

Or this: "... arising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery" (Mark McNichol Enters. v. First Fin. Ins. Co., 284 A.D.2d 964, 965, 4th Dept., 2001).

In cases that involve assault or criminal-act exclusions, the courts are much more likely to determine that coverage is not available when the injured person is the victim of that kind of conduct.

Self-defense cases

In Firemen's Ins. Co. v. 860 West Tower (246 A.D.2d 401, 401-402, 1st Dept., 1998), the insured argued that his conduct was an exercise of reasonable force to protect him in an unprovoked assault. The lower court declared that the insurer had an obligation to defend, and the Appellate Division, 1st Department, affirmed.

"The IAS court correctly held that (the) plaintiff is required to defend defendant building, owners, managing agent and their employee in an underlying action brought by two former employees alleging an unprovoked assault by defendant employee," the court ruled. "While the policy specifically excludes coverage for bodily injury ‘expected or intended from the standpoint of the insured,' it also specifically excepts from this exclusion bodily injury ‘resulting from the use of reasonable force to protect persons or property,' i.e., acts of self-defense."

How did the court know that this was supposedly an act of self-defense when the complaint only alleged intentional conduct? It was, if you will, push-back from the insured.

"Both the answer to the underlying complaint, and a letter from defendants to plaintiff asking it to reconsider its denial of their request for a defense in light of the dismissal of criminal charges that had been brought against defendant employee, and offering to provide it with additional witness statements," the court held, "gave plaintiff actual knowledge of facts establishing a reasonable possibility that defendant employee was acting in self-defense against the plaintiffs in the underlying action." (See Fitzpatrick v American Honda Motor Co., 78 NY2d 61). The Appellate Division cites to the famous Fitzpatrick case which holds that an insurer must expand its obligation to defend based on its knowledge of the facts, even outside of the complaint."

See also M.J. Frenzy LLC v. Utica Nat'l Ins. Group, 309 A.D.2d 566, 567 (1st Dept. 2003), where the policy did not include an "assault" exclusion and the court directed the carrier to defend: "The cases cited by defendant in support of its contention that the policy's intentional acts exclusion relieved it of any duty to defend or indemnify plaintiff for the acts of its employee are inapposite, since the governing policies in those cases expressly provide for the exclusion of any claims arising out of assault and battery."

Finally, consider self-defense claims in a case where there were both an intentional-injury exclusion and, in addition, an assault exclusion. The courts try to look at the operative facts, even with shotgun allegations suggesting negligence: "Each of (the plaintiff's) negligence theories is dependent on the assault and battery and, as they are solely and entirely within the exclusionary provisions of the assault exclusion, defendant has no duty to defend or indemnify plaintiffs" (Handlebar Inc. v. Utica First Ins. Co., 290 A.D.2d 633, 634-635, 3rd Dept., 2002).

The analysis of cases that suggest assault is always the same. First, determine whether the incident constitutes an accident or occurrence as defined in the policy. Secondly, as the claim is presented, examine the exclusions and see (a.) which one you have and (b.) whether the conduct falls completely within the exclusion. Only then can you determine whether coverage will apply.

Dan Kohane is a senior member of Hurwitz & Fine PC and immediate past president of the Federation of Defense and Corporate Counsel. He can be reached at ddk@hurwitzfine.com.