Here is one for an insurance attorney to answer. A potential new client comes in the door. This person says they were drinking and got drunk, then they punched a friend in the face causing injury. The friend sues for the harm that was done and your potential new client asks his insurance company to defend him in the lawsuit. Is there coverage?
Guidance for the answer is found in a 1997, Dallas Court of Appeals opinion. The opinion is styled, Wessinger v. Fire Insurance Exchange.
This is a declaratory judgment action brought by Fire Insurance against its insured under a homeowner policy. Fire Insurance sought a declaration of no coverage for an incident in which the insured became intoxicated and assaulted a third-party friend. The insured and the third-party answered and counterclaimed asserting breach of insurance contract, violations of the Texas Deceptive Trade Practices Act and the Insurance Code. Fire Insurance moved for summary judgment stating that the insured’s actions were not accidental but were intentional conduct excluded from coverage. The trial court entered summary judgment in favor of the carrier.
Under the policy, an “occurrence” is defined as an “accident.” Where acts are voluntary and intentional, and the injury is the natural result of the act, the result is not caused by an accident even though that result may have been unexpected, unforseen and unintended. To determine whether an act or event is an “accident,” a two-step analysis must be performed. First, it must be determined whether the specific “acts” alleged to cause the damages were “voluntary and intentional.” If it is determined that the act that produced the injuries was committed involuntarily or unintentionally, the results of the act would be an accident. However, it is determined that the acts were committed “voluntarily and intentionally,” then it must be determined whether the injuries were a “natural result” of the acts. If the injuries were a “natural result,” there was no accident. On the other hand, when a result is not the natural and probable consequence of an act or course of action, it is produced by accidental means. This is an objective standard.
In this case, the evidence established that the insured intentionally assaulted the third-party friend. Therefore, the conduct was not accidental. The insured’s subjective intent is irrelevant. The insured’s voluntary intoxication does not defeat the voluntary and intentional nature of the assault. The injury was the natural result of the assault. When someone punches another person in the face, an eye injury may be reasonably anticipated. In this case, the insured’s conduct was voluntary and intentional and the injuries naturally resulted therefrom. The carrier, therefore, had no duty to indemnify the insured.