Insurer Not Required to Defend Homeowner Who Shot Intruder
New York Law Journal
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.