Intentional Act and the Expected or Intended Injury Exclusion

December 11, 2012

Our insured is an automobile parts supplier, and the policy is a standard CGL coverage form. While receiving a delivery from a UPS driver, the owner of the business did not want to accept a broken package and told the driver to take it back. The driver refused and kicked it back to the owner of the business. The owner got angry and threw the package at the driver causing injury.

If this is proven to be intentional, we believe that we can then disclaim coverage, as this is specifically excluded. However, would this apply to the named insured as well as in addition to the owner of the business who caused this injury since the named insured is a different name from the owner? Exclusion 2 a of the policy states: This insurance does not apply to: a. Expected Or Intended Injury. Bodily injury or property damage expected or intended from the standpoint of the insured.

I would think the exclusion should apply to named insured as well.

California Subscriber

The expected or intended injury exclusion is a difficult one to apply since most courts differentiate between an intentional act and an intentional result. In other words, the owner here may have intended to throw the package but he did not intend the resultant injury. And if there is no intentional result, most courts are saying the exclusion does not apply. So, you should check with an attorney who is familiar with the law in your area to see how courts there treat the exclusion.

As for who the exclusion applies to, you have to consider the wording of the exclusion and the separation of insureds clause. The exclusion refers to “the insured”, so it applies only to “the” insured that expects or intends the injury; it does not apply to all insureds. And that is where the separation of insureds clause comes in. The CGL form treats each insured as a separate insured so that an exclusion applying to one insured does not automatically apply to other insureds.

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