WAS HOCKEY STICK ATTACK INTENTIONAL ACT?

469_C318

WAS HOCKEY STICK ATTACK INTENTIONAL ACT?

Homeowners

Minor

Intentional Act

Occurrence

While attending hockey camp, 8-year-old Daniel endured three days of teasing by some of the other boys at the camp who thought he was an inferior hockey player. By the third day, he had reached his limit and retaliated by swinging his hockey stick at 7-year-old Caleb. Daniel claimed that he didn't mean to hurt Caleb and had intended to strike him on the shoulder (which was padded), but the stick struck the boy in the head, fracturing his skull and causing brain injuries.

Daniel was insured under his parents' homeowners policy issued by Safeco Insurance Company of America. The policy provided coverage for liability for "damages because of bodily injury or property damage caused by an occurrence." The policy defined an "occurrence" as "an accident, including exposure to conditions which result in: bodily injury; or property damage." Caleb filed a claim under the Safeco policy, but Safeco denied coverage. Caleb then filed a declaratory judgment action, asking the court to find that Safeco must provide coverage. Safeco argued that the hockey stick incident was not an "accident" within the meaning of the policy and that, therefore, there was no "occurrence" for which it was obligated to provide coverage. The court agreed with Safeco and entered a judgment in its favor. The Supreme Court of Utah accepted the case for appeal.

On appeal, the Supreme Court of Utah noted that while the Safeco policy did not define the term "accident," Utah case law has consistently defined the term as it is used in insurance policies as follows: "The word [accident] is descriptive of means which produce effects which are not their natural and probable consequences    The probable consequence of the use of given means is the consequence which is more likely to follow from their use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequences of his deeds." Under this definition, the court noted that there are two ways bodily injury or property damage can be considered "nonaccidental." First, damage can be "nonaccidental" if it is the result of the "actual design or intended action by the insured"; second, if it is the "natural and probable consequence of the insured's act or should have been expected by the insured."

As a preliminary matter, the court noted that Daniel's age was a relevant consideration in determining how to evaluate the natural and probable consequence of his act. According to the court, the natural and probable consequence of Daniel's actions must be viewed from the perspective of an average 8-year-old child.

The court next addressed Safeco's contention that the focus of the court in determining whether there was an "accident" should be on Daniel's actions as opposed to Caleb's injuries. The court disagreed with the insurer's contention. It noted that Utah case law had consistently focused not on whether an act is intentional or deliberate but, rather, on whether the result was intended or expected. In addition, according to the court, "the test is not whether the result was foreseeable, but whether it was expected." However, the court noted that the specific type of injury suffered need not be intended or expected by the insured.

The court then turned to the specific facts of the case. It concluded that there was an issue of fact as to whether Daniel intended to inflict "nontrivial harm" upon Caleb. It also held that "an average 8-year-old would not anticipate anything more than a minor injury as a result of a hockey stick striking the padded shoulder of another child."

The court reversed the lower court's decision and remanded the case for further proceedings.

N.M. on behalf of Caleb vs. Daniel E.-No. 20060284-Supreme Court of Utah-January 8, 2008-175 Pacific Reporter 3d 566.