Section 4.61 Expected or Intended Injury

• Library: Insurance Practice 2015

There is no coverage under Section II of the policy for “bodily injury” or “property damage” that is expected or intended by an insured. Coverage is excluded even if the resulting “bodily injury” or “property damage” is of a different kind, quality, or degree than initially expected or intended or is sustained by a different person, entity, or property than expected or intended. This exclusion does not apply to “bodily injury” that results “from the use of reasonable force by an ‘insured’ to protect persons or property.” Copyright, ISO Properties, Inc., 1999.

Missouri courts have consistently held that an insured’s intentional infliction of damage cannot be deemed an accident and will not be covered by liability insurance. Permitting an insured to obtain coverage for the insured’s wanton, reckless, or willful acts would enable the insured to escape the consequences of the intentional act and would, therefore, be contrary to public policy. Easley v. Am. Family Mut. Ins. Co., 847 S.W.2d 811, 812 (Mo. App. W.D. 1992).

To trigger the intentional act exclusion, the insurer must show that the insured (1) acted intentionally and (2) intended or expected injury to result. State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642, 644 (Mo. App. E.D. 1993); Am. Family Mut. Ins. Co. v. Pacchetti, 808 S.W.2d 369, 371 (Mo. banc 1991). The injury must be intentionally inflicted by the insured for the insurer to be relieved of the obligation to defend and indemnify. Home Indem. Co. v. Politte, 602 S.W.2d 943, 946–47 (Mo. App. W.D. 1980). The Supreme Court of Missouri in Pacchetti made it clear that the insured’s intent is to be measured subjectively: “It remains for the insurer to show that this particular insured expected or intended the result which occurred.” Pacchetti, 808 S.W.2d at 371; see also Easley, 847 S.W.2d at 812.

It should be noted at this juncture that the court of appeals has carved out an exception to the general rule that the insured’s subjective intent must be examined to determine whether the intentional act exclusion applies. Adopting the reasoning of the Eighth Circuit Court of Appeals in B.B. v. Continental Insurance Co., 8 F.3d 1288 (8^th Cir. 1993), the court in D.T.S., 867 S.W.2d at 64, held that an intent to harm will be inferred as a matter of law from the nature of the act of sexual molestation or abuse of a minor. The court noted that this inferred-intent standard in cases of sexual molestation was a unanimous rule in the 34 states that have considered the issue. Id.

Even though the insurer must establish that the insured acted volitionally and with a motive to harm or injure, it is not required to show that the insured intended the specific injury that resulted. Easley, 847 S.W.2d at 813; see also Metro. Prop. & Cas. Ins. Co. v. Ham, 930 S.W.2d 5, 7 (Mo. App. W.D. 1996); Am. Family Mut. Ins. Co. v. Mission Med. Group., 72 F.3d 645, 648 (8^th Cir. 1995). An injury is deemed intentional if the insured acted with the specific intent to cause harm, and the intent to harm will be inferred if the natural and probable consequences of the insured’s act produced harm. W. Indem. Co. v. Alley, 740 S.W.2d 372 (Mo. App. S.D. 1987); see also Aetna Cas. & Sur. Co. v. Bollig, 878 S.W.2d 837, 839 (Mo. App. S.D. 1994). It is sufficient that the consequences were substantially certain to follow from the insured’s intentional act. Am. Family Mut. Ins. Co. v. Lacy, 825 S.W.2d 306, 314–15 (Mo. App. W.D. 1991).

The subjective test to determine whether an insured’s act was “expected or intended” to cause injury does not require an admission of specific intent; the intent can be inferred from facts and circumstances surrounding the insured’s act. Cameron Mut. Ins. Co. v. Moll, 50 S.W.3d 329, 332 (Mo. App. E.D. 2001); see Am. Family Mut. Ins. Co. v. Franz, 980 S.W.2d 56, 58–59 (Mo. App. W.D. 1998) (the intentional-injury exclusion barred coverage for the insured’s act of pushing a six-year-old child’s hand in dog feces because the insured admitted...