2006 NY Int. 80
CIPARICK, J.:
The issue in this declaratory judgment action is
whether the insurer has a duty to defend its policyholder under
his homeowner's insurance policy in an underlying wrongful death
action, resulting from a shooting committed in self defense. We
conclude that the insurer here is obligated to defend under the
policy.
On February 20, 2002, Alfred Cook shot and killed
Richard Barber inside his home. At the depositions, the
witnesses testified that the two men had known each other for
many years, but became involved in a dispute relating to their
business relationship. Barber, weighing about 360 pounds, was
approximately three times Cook's size and had previously attacked
the smaller man, causing injury to his leg. On the morning of
February 20, Barber and another man were outside of Cook's home,
hurling objects at the house. They left without further
incident, but Barber returned later that day with two other
companions. When Cook, who was standing outside his door, saw
them approaching, he asked a person visiting him to leave because
he expected trouble. He returned inside, locked the door and,
anticipating a confrontation, retrieved a .25 caliber hand gun
from his bedroom.
There was further testimony that the group burst into
Cook's home. The four individuals gathered in the kitchen where
Barber began demanding money from Cook while pounding his fists
on the kitchen table. Cook, alarmed, drew his gun and demanded
that they leave his house. Barber apparently laughed at the
small size of the pistol, at which point Cook withdrew to his
bedroom for a larger weapon. He picked up a loaded, 12 gauge
shotgun and stood in his living room at the far end of his pool
table. Cook again ordered them to leave the house. Although
Barber started to head toward the door with his companions, he
stopped at the opposite end of the pool table, turned to face
Cook and told his companions to take anything of value, and that
he would meet them outside because he had some business to attend
to. When Barber menacingly started advancing toward Cook, Cook
warned him that he would shoot if he came any closer. Cook aimed
his gun toward the lowest part of Barber's body that was not
obscured by the pool table -- his navel. When Barber was about
one step away from the barrel of the gun, Cook fired a shot into
Barber's abdomen. Barber died later that day at a hospital.
Cook was indicted for intentional and depraved
indifference murder. At trial he raised a justification defense.
A jury acquitted him of both murder counts and of the lesser
included offenses of manslaughter in the first and second
degrees.
The administrator of Barber's estate, Victoria Pruyn,
commenced a wrongful death action against Cook. The first cause
of action alleges that "[i]njury to the decedent and the
decedent's death were caused by the negligence of the defendant,
Alfred S. Cook." Specifically, the complaint alleges that Cook's
behavior "consisted of negligently playing with a loaded shotgun;
negligently pointing that shotgun at the abdomen of the decedent;
negligently discharging that shot gun into the decedent's
abdomen; and engaging in unruly behavior at the Defendant's
residence on February 20, 2002." In a separate cause of action,
the complaint alleges that Cook intentionally shot Barber causing
Barber's death. At his examination before trial, Cook testified,
"I knew the [shot from the] shotgun would injure Mr. Barber
because I had to stop him, but I did not anticipate it killing
him."
Cook sought homeowner's personal liability coverage
from his insurer, the Travelers's Insurance Company, appearing in
this action as the Automobile Insurance Company of Hartford.
Hartford disclaimed coverage explaining that the incident was not
an "occurrence" within the meaning of the policy and furthermore
that the injury inflicted upon Barber fell within a policy
exclusion, as it was "expected or intended" by Cook. The insurer
commenced this declaratory judgment action against both Cook and
Pruyn for a declaration that it was not obligated to defend or
indemnify Cook in the wrongful death action. After depositions,
Hartford moved for summary judgment and Cook cross-moved, seeking
a declaration that the insurer was required to defend and
indemnify him in the underlying tort action.
Supreme Court denied Hartford's motion and granted
Cook's cross motion to the extent of declaring that the insurer
had a duty to provide a defense for Cook in the wrongful death
action. The court found that Hartford failed to prove that the
incident was not an occurrence covered by the policy or that
Cook's actions were subject to the exclusion for injuries
expected or intended by the insured. The court held that the
insurer had a duty to defend because the negligence allegations
in the complaint could potentially be proven at trial.
The Appellate Division reversed, concluding that since
Cook intentionally shot Barber, his actions could not be
considered an accident or "occurrence" and, thus, were not
covered by the policy (21 AD3d 1155, 1157 [2005]). The court
also noted that the acts came within the policy exclusion for
bodily injury "expected or intended" by the insured. One Justice
dissented and voted to affirm, holding that if the negligence
claim were established, Cook's actions would be covered by the
policy. This Court granted leave to appeal and we now reverse.
Our inquiry is two-fold: whether an "occurrence" is
involved that gives rise to policy coverage and, if so, whether
it falls within the "expected or intended" injury policy
exclusion. As relevant here, the insurance policy defines an
"occurrence" as "an accident . . . which results, during the
policy period, in . . . bodily injury." The policy also contains
an exclusion for bodily injury "which is expected or intended by
any insured." The policy represents that it will provide a
defense and pay -- up to the policy limits -- the amounts for
which the insured is legally liable, "[i]f a claim is made or a
suit is brought against any insured for damages because of bodily
injury . . . caused by an occurrence to which this coverage
applies, even if the claim or suit is false."
It is well settled that an insurance company's duty to
defend is broader than its duty to indemnify. Indeed, the duty
to defend is "exceedingly broad" and an insurer will be called
upon to provide a defense whenever the allegations of the
complaint "suggest . . . a reasonable possibility of coverage"
( Continental Cas. Co. v Rapid-American Corp., , 80 NY2d 640, 648
[1993]). "If, liberally construed, the claim is within the
embrace of the policy, the insurer must come forward to defend
its insured no matter how groundless, false or baseless the suit
may be" ( Ruder & Finn Inc. v Seaboard Sur. Co., , 52 NY2d 663, 670
[1981]).
The duty remains "even though facts outside the four
corners of [the] pleadings indicate that the claim may be
meritless or not covered" ( Fitzpatrick v Am. Honda Motor Co.,
Inc., , 78 NY2d 61, 63 [1991]). For this reason, when a policy
represents that it will provide the insured with a defense, we
have said that it actually constitutes "litigation insurance" in
addition to liability coverage ( see Seaboard Sur. Co. v Gillette
Co., , 64 NY2d 304, 310 [1984] citing Intl. Paper Co. v Cont. Cas.
Co., , 35 NY2d 322, 326 [1974]). Thus, an insurer may be required
to defend under the contract even though it may not be required
to pay once the litigation has run its course.
When an insurer seeks to disclaim coverage on the
further basis of an exclusion, as it does here, the insurer will
be required to "provide a defense unless it can 'demonstrate that
the allegations of the complaint cast that pleading solely and
entirely within the policy exclusions, and, further, that the
allegations, in toto, are subject to no other interpretation' "
( Allstate Ins. Co. v Mugavero, , 79 NY2d 153, 159 [1992] [citation
omitted]). In addition, exclusions are subject to strict
construction and must be read narrowly ( see Seaboard, 64 NY2d at
311).
An examination of the wrongful death complaint leads to
the conclusion that Cook's claim is covered by the policy. Among
other things, the complaint alleges that Cook negligently caused
Barber's death. If such allegations can be proven, they would
fall within the scope of the policy as a covered occurrence. The
policy defines an "occurrence" as an accident, and we have
previously defined the term "accident" albeit in a life insurance
policy "to pertain not only to an unintentional or unexpected
event which, if it occurs, will foreseeably bring on death, but
equally to an intentional or expected event which unintentionally
or unexpectedly has that result" ( Miller v Cont. Ins. Co., , 40 NY2d 675, 678 [1976]). Thus, if Cook accidentally or negligently
caused Barber's death, such event may be considered an
"occurrence" within the meaning of the policy and coverage would
apply. The fact-finder in the underlying action may indeed
ultimately reject the notion that Cook negligently caused
Barber's death given the evidence of intentional behavior, but
that uncertain outcome is immaterial to the issue raised here --
the insurer's duty to defend in an action where it is alleged
that the injury was caused by the negligent conduct of the
insured.
Turning to the exclusion -- as an allegation of
negligence implies an unintentional or unexpected event, Hartford
necessarily has failed to demonstrate that the allegations of the
complaint are subject to no other interpretation than that Cook
"expected or intended" the harm to Barber ( compare Mugavero, , 79 NY2d 153 [where the harm caused was inherent in the nature of the
acts alleged to be committed by the insured -- child sexual abuse
-- and fell within the homeowners' insurance policy's
exclusion]). Hartford is thus required to defend Cook in the
underlying wrongful death action.
In light of this disposition, it is unnecessary to
address the remaining arguments -- specifically, whether acts of
self defense are intentional acts precluding coverage under a
homeowner's policy. Suffice it to say that a reasonable insured
under these circumstances would have expected coverage under the
policy. As to a duty to indemnify, that determination will abide
the trial.
Accordingly, the order of the Appellate Division should
be reversed, with costs, and the order of Supreme Court should be
reinstated.