The issue of intent is important

Resulting harm different than that intended

Intent to cause injury

Intentional act—probable consequence

Injury inflicted in self defense

Effect of intoxication or mental incapacity

"Occurrence" vs. "expected or intended"

Various Approaches to Interpretation

If the insured acts with the specific intent to cause some injury, harm, or damage, the exclusion applies. This seems simple enough and is accepted by the majority of courts. Any discussion of or contention with this rule centers around the issue of whether the harm actually caused was of a different type or of a more serious nature than was intended by the insured-actor.

If the act is intentional and results in injury which is a natural and probable consequence of that act, the exclusion applies without regard to whether or not some harm was intended. Some courts follow this legal doctrine of tort law. Others reject this rule as being inapplicable to the interpretation of contemporary general liability insurance policies.

If the insured acted with a specific intent, but did not intend to produce the specific damage that resulted, the exclusion does not apply.

Furthermore, the question of whether the insured acted intentionally can be affected by factors such as intoxication and an assertion that he was acting in self defense.

Note that vicarious liability, such as parental liability for acts of minor children or an employer's liability arising out of an act of an employee, is exempt from the exclusion. The severability of interest principle (now, the separation of insureds clause) provides that each insured is treated separately and since the incident causing injury or damage is (presumably) not expected or intended from the standpoint of the vicariously liable party, that separate party is not affected by the exclusion.

Are "Expected" and "Intended" Synonymous?

Liability policies were rewritten during the 1960′s to include the term "expected" in an effort to broaden the exclusion to include foreseeable results. Most of the courts around the country have not considered the question of whether the terms "intended" or "expected" are synonymous. However, the following cases are examples of courts that have addressed this question, with the first case representing the majority viewpoint.

In the 1986 Pennsylvania superior court case of United Services Automobile Association v. Elitzky, 517 A.2d 982 (Pa. Super. 1986), the court decided that the terms are synonymous. The case involved allegations of malicious defamation and intentional infliction of emotional injury arising out of letters written by the insureds concerning the conduct of a judge in a proceeding in which they  were involved. The court stated that  if "expected" were defined differently than "intended," the exclusion might be misapplied to acts caused by mere negligence if a jury could be persuaded that the injury was to be "expected" under the facts and circumstances of the case. Since protection in the event of one's negligence is the  very reason that insurance is purchased, the court refused to differentiate between the terms.

In contrast, a Missouri court of appeals, in the case of Farm Bureau Town & Country Insurance Co. of Missouri v. Turnbo, 740 S.W.2d 232 (Mo. App. 1987), determined that the terms applied to situations that required different standards of proof. In this case, the insured had a fight with another man. He pleaded guilty to criminal assault, a charge that alleged that he "recklessly" caused physical injury. The decision stated that, "Intend means the insured desires to cause the consequences of his act or believes the consequences are substantially certain to result. Expect means the insured realized or should have realized there was a strong probability the consequences in question would result from his acts."  Since this definition of "expect" squared with the definition of "reckless" approved of by the court, the insured's acts were excluded from coverage. Thus, the Missouri court applied the exclusion to the insured's negligence, as the Pennsylvania court had declined to do.

(Note though, that most observers believe this case from Missouri was implicitly overruled when the Missouri Supreme Court rejected the contention that a showing that the insured was reckless compels a finding that the insured expected the resulting injury; this was the finding in American Family Mutual Insurance Company v. Pacchetti, 808 S.W.2d 369 (Mo. 1991). The Supreme Court in this case did not explicitly overrule the Turnbo decision, but the implicit overruling is accepted. However, it must be said that the court's main point was that it remained a duty for insurers to show that the particular insured against whom a claim is brought expected or intended the result that occurred. As for the difference between "expected" and "intended," the Missouri Supreme Court said, "It may be argued that by using two words, different meanings were indicated. There are many suggestions of a shade of difference in the meaning of the two terms. Whether the insured expected or intended injury, however, is essentially a question of fact.")

The Issue of Intent is Important

In those jurisdictions following the rule that the exclusion will apply if any intent to harm is shown, even if the type or magnitude of the resulting harm is greater than intended, it is still imperative that intent be shown. These courts do not allow mere "foreseeability" of harm to preclude coverage, even if the act involves foreseeable consequences of great harm, or amounts to gross or culpable negligence.

For example, one federal appeals court, applying Florida law, found that there was a genuine question as to the insured's intent to harm his friend when he shot at him with a BB gun and accidentally struck him in the eye instead of on his chest. The insured was following his friend's instructions as to the use of the gun and the friend apparently had no fear of being harmed by serving as the target, even though the insured had shot him once before the accident and he had exclaimed that it "hurt." The case was sent back for trial on the issue of intent. This case is Allstate Insurance Co. v. Steinemer, 723 F.2d 873 (C.A. Fla. 1984).

It should be noted that many jurisdictions allow a presumption of intent to be inferred from the nature of certain acts, such as sexual assault upon a minor. For example, a federal appeals court applying California law found that an accomplice to a kidnapping and rape of a minor, while perhaps not participating in the rape, could still be presumed to have intended harm by aiding and abetting the assault, thereby precluding insurance coverage for his liability; the case is State Farm Fire and Casualty Co. v. Bomke, 849 F.2d 1218 (C.A. Cal. 1988). Also, in American Family Mutual Insurance Company v. Purdy, 483 N.W.2d 197 (S.D. 1992), the South Dakota Supreme Court stated that an insured's acts of sexual contact with children were of such a nature that the intent to inflict bodily injury was inferred as a matter of law; the exclusion based on injury either expected or intended applied as a bar to coverage in this case. In this case, the South Dakota Supreme Court noted that the majority of jurisdictions that have addressed this issue have held that through the very nature of acts of sexual contact or rape, injury is either inherent or the intent to injure will be inferred as a matter of law; the state-by-state examples were then listed.

These latter two cases are examples of the inferred intent rule that raises a conclusive presumption of the insured's intent to harm the victim, regardless of the insured's assertions of a subjective lack of intent to harm. The intent to harm is inferred as a matter of law from the actual commission of the act. And, because it operates as a conclusive presumption of intent to harm, application of the rule automatically precludes insurance coverage.