New Hampshire Insurance Company (New Hampshire) provided a homeowner policy to John Scott. The two parties sought judicial intervention to resolve whether Scott should be defended against a defamation lawsuit.

Richard Baxter, a former university chief administrator brought the defamation lawsuit against Scott (as well as several other parties only referenced as "John Does"). Baxter claimed that Scott contacted an Internet Service Provider, paid for Internet access and set-up a Website. Baxter also claimed that Scott used that site to write and published information that was known to be false and which damaged Baxter's reputation. Shortly after receiving notice, Scott requested that New Hampshire defend him against the lawsuit. The insurer denied the claim and filed a motion for declaratory judgment that it had no obligation to respond to the legal action. Scott asked a higher court to review the matter after a lower court granted the insurer's motion.

A higher court considered Scott's argument. The insured complained that New Hampshire did owe a duty to defend him under his homeowners policy, particularly because the policy did not include an explicit exclusion of defamation claims. The court noted that New Hampshire denied coverage and based its motion alleging that the defamation lawsuit did not involve an "occurrence." The court also noted that the lawsuit by Baxter alleged that he was defamed. Since, at the time that the alleged defamatory statements were written and published, Baxter was a high-level official at a public university, the burden of proof is that Scott must have spread the information with malice, knowing the information was false.

The higher court recognized that New Hampshire's argument and Baxter's allegation had one critical element in common…that Scott's actions were not accidental. Therefore, the court ruling affirmed the lower court decision in favor of New Hampshire.

Richard L. Baxter, Plaintiff-Appellee, v. John Doe, et al., Defendant-Appellant. Louisiana Court of Appeal, Second Circuit. No. 38,062-CA. February 26, 2004. Affirmed. 2004 CCH Personal and Commercial Liability Cases. Paragraph 1009.