In a memorandum opinion from the U.S. District Court for the Eastern District of Pennsylvania, Judge Bartle held that an insurance company has no duty to defend or indemnify an individual convicted of assault in the victim’s subsequent lawsuit for personal injuries. In Homesite Ins. Co. v. Neary, et al., 2018 WL 4405886 (E.D. Pa. Sept. 17, 2018), the insurer, Homesite, sought a declaratory judgment that it had no duty to defend or indemnify Michael Neary, Jr. under his parents’ policy for the traumatic brain injury sustained by Neary’s roommate when Neary physically attacked him. The District Court granted Homesite’s motion for judgment on the pleadings after determining the attack by Neary was not an “occurrence” or accident under the policy, and therefore, was excluded from coverage.
The attack occurred after Neary had been drinking alcohol at a party the roommates attended. While at the party, Neary attacked his roommate without provocation, and then again at their apartment later that night. Neary also allegedly delayed seeking medical attention for his roommate after the second attack. Thereafter, the roommate filed a civil suit containing counts of negligence and recklessness, negligent infliction of emotional distress and negligent failure to rescue. The complaint also alleged that Neary suffered from “pre-existing mental health issues which may cause him to exhibit violent and aggressive behavior,” which were “severely exacerbated upon consumption of alcohol.”
The policy language limited coverage to claims or suits “brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence,’” which they defined as “an accident.” There was also an exclusion for “’bodily injury’. . . [w]hich is expected or intended by the ‘insured.’” Based on the Pennsylvania Supreme Court’s instruction in Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286 (Pa. 2007), the court construed “accident” to refer to “an unexpected and undesirable event occurring unintentionally,” with “unintentionally” being the key term as it implies a degree of fortuity.
In deciding Homesite’s motion, the court analyzed an insurer’s duty to defend solely by comparing the policy terms with the factual allegations contained within the underlying complaint. The complaint’s characterization of claims arising from the attack as claims sounding in negligence “is not controlling,” as “it is well-established that artful pleadings will not trigger an insurer’s duty to defend.” As such, the court found that the “violent criminal assault” alleged in the complaint could not be characterized as an accident within the ordinary definition of the word or common judicial construction in this context. The injuries sustained by the roommate were not “unexpected,” but were the “natural and expected result” of the attack.
Further, the allegations did not support an inference that Neary’s voluntary intoxication rose to a level that rendered his actions accidental. In Pennsylvania, voluntary intoxication may only negate one’s ability to form intent where they were in the midst of an “alcoholic blackout” or completely lost awareness of their actions. Here, the complaint only alleged Neary “consumed alcohol,” without detailing the amount consumed, his blood alcohol content, or degree of impairment. The District Court found the allegation of alcohol consumption, without more, is insufficient to trigger the duty to defend.
The court came to the same conclusion with regard to the allegation that the assault was caused by Neary’s “pre-existing mental health issues.” There were no alleged facts that supported that Neary had any specific mental health issue so severe as to negate his ability to form general intent. Accordingly, the attack on the roommate, as alleged in the complaint, was not an “occurrence” under the policy and Homesite had no duty to defend or indemnify Neary.
The court did not resolve whether Neary was insured under his parent’s policy, which was also disputed based on his separate residence, in light of the disposition on other grounds.