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A man who killed an intruder in his home in self-defense is not entitled to insurance defense in a wrongful death action, a divided Albany appellate panel ruled Thursday in a case of first impression.

The split by New York's Appellate Division, 3rd Department, in Automobile Co. of Hartford v. Cook, 97160, illustrates a debate that has divided courts across the country. The question is whether a homeowner's insurance policy provides coverage when an insured is sued for wrongful death stemming from a killing in self-defense. That question was apparently addressed for the first time Thursday by a New York appellate court.

Justice John A. Lahtinen and three of his four colleagues strictly construed the insurance policy language in holding that an occurrence of justifiable homicide results from an intentional rather than accidental act. Here, the defendant shot the decedent at close range with a 12-gauge shotgun. The action thus triggers the exception for incidents that are "expected or intended" by the insured, the panel found.

But Presiding Justice Anthony V. Cardona dissented, distinguishing "defend" from "indemnify" and arguing that an insurance company has an obligation to provide a defense, at least until the point where it is determined that the allegedly wrongful death resulted from intentional rather than negligent conduct.

"The cases across the country are split right down the middle," said Albany appellate attorney Michael J. Hutter, who represented the insurance company. "But this is the first time it has ever been raised in New York. The Third Department took a very strict approach."

At the heart of the case is a money dispute between acquaintances Alfred S. Cook and Richard A. Barber. In 2002, Barber barged into Cook's home. Cook shot and killed Barber, and was charged with murder.

After an Albany County jury acquitted Cook, the Barber's estate sued for wrongful death. Then, the Automobile Insurance Co. of Hartford, which provided Cook with homeowner's insurance, sought a declaration that it had no duty to defend or indemnify.

Albany Supreme Court Justice Edward Sheridan said the insurance company had a duty to provide Cook's defense.

Thursday, the 4-1 Third Department panel reversed.

"The jury apparently concluded in the criminal case that the prosecution failed to prove beyond a reasonable doubt that the 120-pound Cook did not have legal justification for shooting the 360-pound decedent -- who had previously attacked and injured Cook -- after he refused to leave Cook's home and approached Cook in a menacing way," Lahtinen observed. Regardless, the majority held as a matter of law that Cook's actions were not covered by the homeowner's policy.

"While he allegedly did not anticipate that the injury inflicted would result in death, the facts (and his admission) establish that he intended the result of a bodily injury," Lahtinen wrote in an opinion joined by Justices D. Bruce Crew III, Edward O. Spain and Anthony T. Kane.

In dissent, Cardona noted that "an insurer's duty to defend its insured in pending litigation is exceptionally broad and far surpasses the insurer's duty to ultimately indemnify in the event that the insured is found liable."

He said that duty should be alleviated only when "no plausible reading" of the allegations could "bring the contested events within the purview of the insurance policy at issue." Here, Cardona said, Barber's death could be viewed as an act of negligence rather than intentional conduct.

"[A]lthough it might ultimately be determined that Cook's liability to decedent's estate, if any, is based upon his intentional conduct, thereby obviating plaintiff's duty to indemnify Cook, I cannot conclude that this is the only possible outcome considering the allegations in the underlying complaint," Cardona wrote.

His reasoning follows that of state courts in West Virginia and Arizona. Courts in Michigan and Vermont have held that insurers are not obligated to defend or indemnify in self-defense cases.

Robert P. Roche of Roche, Corrigan, McCoy & Bush in Albany argued for Cook. Benjamin F. Neidl of Tabner, Ryan & Keniry appeared for the estate.

Roche said the ruling establishes a nonsensical distinction between holders of commercial policies and homeowner's policies. He said that as a result of this decision, a shopkeeper who shoots a thief is covered because he helped prevent a crime on the property. But a homeowner, Roche said, is not similarly covered.

"A commercial policy allows the holder to protect either his employees from being assault or to prevent the commission of a crime upon his property by using force up to and including deathly physical force, and he is covered," Roche said. "But a homeowner is not. Here is a man who stood trial and 12 of his peers said 'not guilty.' He acted properly and in a manner dictated by circumstances over which he had no control."

Roche said he will seek leave to appeal to the state Court of Appeals.

CIVIL LIABILITY
In a civil case, it is the victim (or his estate) bringing the action. While there are many similarities to a criminal charge, it is important to understand that the civil plaintiff must only prove his case ‘by a preponderance of the evidence’. This is a much lighter burden than the criminal standard of ‘beyond a reasonable doubt’. The principal tort actions which a victim who defends himself might face, include battery, assault and wrongful death.

Battery and assault:

In virtually every jurisdiction (including Pennsylvania), to make out a case for battery, the plaintiff must show that the aggressor made harmful or offensive contact with the plaintiff’s person, that the aggressor intended to bring about such contact, and that the aggressor’s actions in fact caused the contact.

While harmful contact is easily determined from the specifics of the situation, offensive contact is judged by the objective, ‘reasonable person standard’.

As a prominent Philadelphia law professor explains, "tapping a person on the shoulder is not reasonably ‘offensive’ whereas, tapping someone ‘considerably lower’ would be."

‘Plaintiff’s person’ means in general anything connected to the plaintiff’s body. This would include a hat, a cup in plaintiff’s hand, and on a recent bar exam, even the car in which the plaintiff was sitting! Thus, snatching a book from a person might well constitute a battery.

The causation requirement can also be deceptive. Not only would a thrown projectile which strikes the plaintiff constitute a battery, but ducking to avoid such a projectile, and hitting one’s head would also be actionable. Moreover, no actual damage need occur to bring an action for battery. The offensiveness of a non-harmful contact will support an award of nominal damages.

Assault, briefly, is the creation of a reasonable apprehension of an imminent battery, in the victim. Simple fear is not enough. The aggressor must have a present apparent ability to bring about such contact. In other words, the victim must actually expect to be struck or touched.

Conversely, the fact that the victim was not in the least bit afraid does not bar recovery. Thus, a professional boxer may successfully sue a weakling for assault, even though there was no actual danger of being hurt.

Words are generally not enough to support an action for assault, but words coupled with some act may be. For example, shaking one’s fist and threatening with words might well constitute assault.

Similarly, a conditional threat such as ‘your money or your life’ is also sufficient to support a charge of assault. Like battery, no actual damage need result.

Wrongful death and survivor acts:

Although traditionally any tort action abated at the death of the victim or the perpetrator, most states have now enacted ‘survival acts’ for wrongful death (it is from this old common law rule that the concept of escaping liability by killing, rather than injuring a victim, derived).

Now the estate of the deceased may bring an action against the killer for all damages which occurred between the commission of the tort, and death (e.g. pain and suffering).

Further, every state has now enacted a statute providing for a civil remedy for wrongful death. Here, the a designated representative sues for the pecuniary injury to the next of kin (lost wages, lost companionship).

While the wrongful death action is quite complicated, the critical aspect for present purposes is that the same defenses against the plaintiff apply as if the victim himself were suing.

Self-defense in tort law:

While the principles of self-defense at tort law are similar to those at criminal law, the mode of analysis, and areas of emphasis differ. In general, self-defense is valid when a person has reasonable grounds to believe that he is about to be attacked. Under these circumstances, he may only use such force as is reasonably necessary to protect against the potential injury. Since only reasonable ground are required, a genuine mistake with respect to the attack will still support the right to self-defense. Once the attack or tort has ended, so does the right to self-defense. Retaliation is never permitted.

As at criminal law, there is generally no duty to retreat, and deadly force may be used to prevent death or serious bodily harm. Even in the minority jurisdictions which require retreat (like Pennsylvania), there is an exception to the requirement if the victim is in his home. Although the attacker has no right to self defense, if the attack is non-deadly, and the victim responds with deadly force, the aggressor may defend himself with deadly force.