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March 16, 2020

NYS Court Reverses in Favor of Insured in Apparently Intentional Incident

Liability insurance policies don’t generally provide coverage for bodily injury claims arising out of intentional acts. However, an insurer may be obligated to provide coverage (or at least a defense) for a claim if there is evidence that the precise cause of the injury was not intentional. Recently, in Unitrin Auto & Home Ins. Co. v. Sullivan, a NYS intermediate appellate court addressed this issue with respect to a coverage dispute stemming from a personal injury claim involving a cup of hot liquid allegedly thrown out of a vehicle.1

In Sullivan, claimant George Ciminello sued defendant and insured Brian Sullivan for personal injuries that Ciminello allegedly sustained when he was struck by a cup of hot liquid thrown out of a window of a vehicle operated by Sullivan. Sullivan sought coverage for the claim under his combination homeowners and automobile policy issued by Unitrin Auto and Home Insurance Company. The policy stated Unitrin would provide coverage for the insured for a bodily injury caused by an “occurrence,” which was defined by the policy as “an accident.”

Unitrin commenced a separate lawsuit seeking a judgment declaring it wasn’t obligated to provide a defense or indemnification to Sullivan in the personal injury lawsuit because the claim arose from the intentional act of throwing the cup. The trial court granted Unitrin’s motion for summary judgment, and the claimant appealed.

The appellate court reversed, though, holding the claimant raised a triable issue of fact by submitting evidence that, although Sullivan and his passenger intended to douse the claimant with the liquid contained in the cup, there was no intent to strike him with the cup itself. The court, therefore, reasoned there was an issue of fact regarding whether the event qualified as an “accident” as defined by the policy. The court reversed the trial court’s decision and denied Unitrin’s motion for summary judgment.

Although a cup-throwing claim may sound trivial, the Sullivan decision is a reminder of the challenges faced by liability insurers in attempting to obtain declaratory judgments that they owe no coverage for bodily injury claims arising from apparent intentional acts. If there is any evidence that the alleged, precise injury was caused accidentally and the claim would be otherwise covered under the policy, the insurer may be obligated to provide coverage––i.e., a defense and indemnification to its insured. Even defending a simple injury claim can result in significant costs and expenses for an insurer.


Insurance Issues and Coronavirus (COVID-19)

Our insurance attorneys are available to assist you by addressing questions involving the effects of coronavirus, including property damage, business interruptions, workers’ compensation for mandated remote work, and trip cancellations. We hope our readers stay safe and healthy.

Insurance Coverage & Regulation Practice Area Update

Recently, several former LeClairRyan attorneys joined Barclay Damon’s Insurance Coverage & Regulation Practice Area, including Ben Carroll, Michael Case, and Gillian Woolf, all partners; and Siobhan Tolan, associate. Based in the firm’s New York and Boston offices and admitted in states throughout New England, these new team members bring additional insurance coverage experience to the firm’s already robust team, handling all types of insurance lines as well as the full range of insurance litigation, business transactions, and regulatory issues.

If you have any questions regarding the content in this alert, please contact Tony Piazza, Insurance Coverage & Regulation Practice Area chair, at; Sanjeev Devabhakthuni, counsel, at; or another member of the firm’s Insurance Coverage & Regulation Practice Area.


1 Unitrin Auto & Home Ins. Co. v. Sullivan, ___A.D.3d___, 2020 NY Slip. Op. 00452 (2d Dept. January 22, 2020)

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