The intentional acts exclusion.

• Author: Gunn, Tracy Raffles

A critical consideration for both the plaintiff and defendant in most personal in jury cases is whether the defendant is insured for any liability he or she may ultimately have to the plaintiff. Although any issue of insurance coverage is usually decided in a separate proceeding, the coverage question impacts the tort case from both parties' perspectives: 1) a covered defendant will likely be provided with a paid defense, and 2) a plaintiff is more likely to collect a large judgment against a covered defendant. In fact, courts have recognized that personal injury complaints are often pled specifically with an eye toward invoking insurance coverage.(1)

Coverage issues are particularly complex where the underlying tort is intentional in nature. Most insurance policies expressly exclude coverage for an insured's intentional conduct. However, numerous issues have arisen regarding the specific type and scope of intent necessary to trigger an intentional acts exclusion and to preclude coverage.

Threshold Issues

Several threshold factors must be taken into account in analyzing an intentional acts issue. First, a proper analysis of the effect of an intentional acts exclusion must be based upon court decisions that analyze the same exclusionary provision the insurer seeks to invoke in the particular case.(2) It also should be noted that the intentional acts exclusion may not apply to every coverage part of a policy.(3)

Furthermore, any case involving an intentional acts exclusion will likely implicate other coverage issues, such as public policy,(4) or the requirement of an "occurrence" or "accident."(5) Additionally, an individual may be insured under a business policy only for acts within the scope of his or her employment. That individual's intentional conduct may be outside the scope of his or her corporate position as a matter of law.(6)

Finally, the court addressing an intentional acts exclusion must properly identify the person whose intent is required. Depending upon the particular language used in the policy, the intentional acts exclusion may apply only to claims against the particular insured who committed the intentional act, and may not extend to negligence claims against other insureds based on their negligent failure to prevent another's intentional conduct.(7)

Difference Between Intent to Act and Intent to Harm

There has been considerable conflict in Florida law regarding whether the intentional acts exclusion is triggered where the insured merely has the intent to perform the act complained of, or whether the insured must also intend the harm that results therefrom. For many years, it was clear that the intentional acts exclusion did not apply unless the insured had both the intent to do the act and the specific intent to injure the claimant.(8)

The later confusion regarding this issue was principally the result of the Florida Supreme Court's decision in Landis v. Allstate Insurance Co., 546 So. 2d 1051 (Fla. 1989). In Landis, the court held that intent to harm would be inferred as a matter of law from the act of child sexual abuse.(9) The Landis court further stated "[W]e believe that specific intent to commit harm is not required by the intentional acts exclusions. Rather, all intentional acts are properly excluded by the express language of the homeowners policy."(10)

Courts around the state speculated as to whether the Landis decision simply created a presumption of intent to harm in a limited class of cases, or whether the court completely eliminated the second part of the two-prong test for applying the intentional acts exclusion, thereby allowing coverage to be avoided where the insured merely intended to perform the complained-of act.(11)

In Prudential Property & Casualty Co. v. Swindal, 622 So. 2d 467 (Fla. 1993), the court appeared to settle this confusion by expressly holding that Florida law still requires both an intent to act and a specific intent to injure in order to bring a loss within the ambit of the exclusion, and that Landis merely created a presumption in child sexual abuse cases. However, despite this reaffirmance in Swindal that an intent to harm is required, the issue resurfaced only a year later. In Prasad v. Allstate Insurance Co., 644 So. 2d 992 (Fla. 1994), an insanity case, the Supreme Court quoted its statement in Landis that no intent to harm is required, without acknowledging its intervening decision in Swindal.(12) Thus, there remains some confusion in the law regarding whether specific intent to harm is required to trigger the intentional acts exclusion. Most courts, however, apply the Swindal analysis, under which both an intent to act and an intent to harm are required.(13)

Scope of Intent

In many cases, the insured intended to do some act and intended to inflict some harm, but the nature of the harmful act or the resulting injury is substantially different than that originally intended. In...