Liability insurance policies do not provide coverage for injuries resulting from conduct that is “particularly reprehensible.” As a general rule, coverage is barred where the insured had an intent to injure. In most circumstances, courts apply a subjective standard to determine whether an insured had an intent to injure. “Even when the actions in question seem foolhardy and reckless, the courts have mandated an inquiry into the actor’s subjective intent to cause injury.” Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 1841 (1992). However, an intent to injure will be presumed where the conduct at issue is “particularly reprehensible.” As noted by the New Jersey Supreme Court in Voorhees:
When the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor’s subjective intent to injure. That objective approach focuses on the likelihood that an injury will result from an actor’s behavior rather than on the wrongdoer’s subjective state of mind.
Thus, for instance, an intent to injure is presumed in situations involving the sexual molestation of children. The Appellate Division has also held that the non-consensual exposure of an individual to the HIV virus during sexual relations is “particularly reprehensible,” and, therefore, an intent to injure will be presumed.
Recently, in D.G. v. B.E.A., 2018 WL 1527558 (N.J. Super. Ct. App. Div. March 29, 2018), the Appellate Division held that acts of domestic violence are particularly reprehensible and, therefore, there is no coverage for injuries resulting from such acts. In that case, the plaintiff and the defendant, who had been dating for a number of years, went to Atlantic City for the weekend. After a day and evening of heavy drinking, the defendant returned to the hotel room and viciously attacked his girlfriend, the plaintiff. He blamed the attack on “extreme voluntary intoxication” and claimed that he was so intoxicated that he could not have formed an intent to injure the plaintiff (Id.at *2). There was no prior history of domestic violence between the parties.
The defendant’s insurer denied coverage for the incident, claiming “that defendant’s violent assault of plaintiff was not an accident under the policy, but rather, a particularly reprehensible act of domestic violence, where intent to injure is presumed.” (Id. at *2). The court agreed, as did the trial court. The court held that the given the nature of the incident in question, the insurer had no duty to defend or indemnify the defendant, even though the plaintiff asserted claims based on negligent conduct, in addition to intentional and reckless conduct.
The Appellate Division also rejected the defendant’s argument that the parties’ non-violent history was relevant. According to the court, a single act of domestic violence is sufficient to preclude coverage. Citing an earlier decision, the court further noted “that spousal abuse in any form is ‘so inherently injurious, that it can never be an accident’ . . . .” (Id. at *5 (quoting Merrimack Mut. Fire Ins. Co. v. Coppola, 299 N.J. Super. 219, 230 App. Div. 1997)). The court further rejected the argument that intoxication was a defense to the argument that the defendant intended to injure the plaintiff.
Despite the court’s statement that domestic violence is so inherently injurious that it can never be an accident, the court noted:
Although there was only one incident of domestic violence here, it was sufficiently egregious to warrant the denial of coverage. Defendant brutally assaulted plaintiff, causing her significant and permanent injuries. Defendant’s conduct was so egregious as to be “particularly reprehensible,” warranting a presumption of intent to injure plaintiff and denial of coverage under the policy exclusion (Id. at *6).
Thus, the court appeared to leave the door open to a finding in a future case that an act of domestic violence may not rise to the level of being “particularly reprehensible.” In other words, the court appears to be suggesting that not all acts of domestic violence are so egregious as to be considered particularly reprehensible as a matter of law.
This article is reprinted with the permission from NJInsuranceblog.org.