State Farm Fire & Casualty Co. v. Whiting

[1034] Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James E Punch, A.J.), entered August 15, 2007 in a declaratory judgment action. The judgment granted plaintiffs cross motion for summary judgment seeking a declaration that plaintiff has no duty to defend or indemnify defendant Matthew Whiting in the underlying action. It is hereby ordered that the judgment so appealed from is affirmed without costs. Memorandum: Supreme Court properly granted the cross motion of plaintiff seeking summary judgment declaring that it has no duty to defend or indemnify Matthew Whiting (defendant) in the underlying action. According to the complaint in the underlying action, defendant assaulted Evan Lang while Lang was attending a party at defendant’s home. We agree with the court that plaintiff has no duty to defend or indemnify defendant with respect to the cause of action alleging an intentional tort. We conclude that the incident herein was not an “occurrence” within the meaning of the policy and, in our view, the dissent’s reliance upon Automobile Ins. Co. of Hartford v Cook (7 NY3d 131) in reaching a contrary conclusion is misplaced. Under the terms of the policy, an occurrence is defined as “an accident.” We note at the outset that an incident is an occurrence, i.e., an accident, if, “ ‘from the point of view of the insured, . . . [the incident resulting in injury] was unexpected, unusual and unforeseen’ ” (Miller v Continental Ins. Co., 40 NY2d 675, 677 [1976]; see Cook, 7 NY3d at 137-138; Essex Ins. Co. v Zwick, 27 AD3d 1092). Defendant herein testified at his deposition that he intended to hit Lang, who had shoved him and was again advancing toward him, and defendant knew when he hit Lang that Lang “could be hurt from the punch.” In Cook, the insured shot and killed an intruder in his home. He was acquitted of murder and manslaughter charges, and the victim’s estate commenced a wrongful death action alleging that the insured in Cook negligently caused the victim’s death (see 7 NY3d at 135). The insured in Cook, who fired the weapon at the lowest part of the victim’s body that was visible behind a pool table, testified at his deposition that he knew that the victim [1035] would be injured but he did not anticipate that the victim would be killed (see id. at 135-136). Although the insured acted intentionally insofar as he fired a weapon at the victim who was advancing toward him, the Court explained that, “if [the insured] accidentally or negligently caused [the victim’s] death, such event may be considered an ‘occurrence’ within the meaning of the policy and coverage would apply” (id. at 138). We conclude herein that there is no view of the evidence to support a conclusion that the result of defendant’s intentional act of punching Lang in the face “accidentally or negligently” caused Lang’s alleged injuries (id.). We reject the further contention of defendant that he is entitled to coverage based upon plaintiffs failure to disclaim coverage in a timely manner. Because we have concluded that the claim falls outside the scope of the policy’s coverage on the ground that the incident is not an occurrence, disclaimer pursuant to Insurance Law 3420 (d) is not necessary. Where, as here, “the insurance policy does not contemplate coverage in the first instance, . . . requiring payment of a claim upon failure to timely disclaim would [impermissibly] create coverage where it never existed” (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188). All concur except Green and Gorski, JJ., who dissent and vote to reverse in accordance with the following memorandum.