Recently, in the context of an alleged \u201cshaken baby\u201d claim, the Supreme Court of British Columbia considered whether an insurer had a duty to defend a claim against its insured arising from allegations framed in both negligence and assault. The insurer denied coverage on the basis of a policy exclusion for expected or intended bodily injury or, alternatively, on the basis of an abuse exclusion. The court upheld the insurer\u2019s denial of coverage. This decision is significant for underwriters in that it confirms that the \u201cartful pleading\u201d of negligence, in an attempt to frame an assault as negligence, will not preclude the application of an intentional act exclusion.<\/p>\n\n\n\n
The insurer issued a commercial general liability policy to the Petitioner who owned and operated a daycare. The Petitioner provided daycare services to the infant plaintiff.\u00a0 The Notice of Civil Claim alleged, among other things, that the Petitioner was negligent in (i) shaking the infant plaintiff to such a degree that a brain injury resulted, or (ii) permitting other employees of the daycare to shake the infant plaintiff.\u00a0 Alternatively, the Notice of Civil Claim alleged that the Petitioner\u2019s actions constituted an assault. \u00a0The alleged negligence and\/or assault resulted in a catastrophic injury to the infant\u2019s brain causing permanent cognitive and physical disability.<\/p>\n\n\n\n
The action alleged only a single shaking of the infant plaintiff. The insurer argued that this could only be considered an intentional tort and that the allegations of intentional tort and negligence were \u201cone and the same\u201d as they arose from the same actions and caused the same harm.<\/p>\n\n\n\n
The policy contained two exclusions which the insurer relied upon to deny coverage. They were: (1) an exclusion for \u201cBodily injury \u2026 expected or intended form the standpoint of the insured\u201d (the \u201cExpected or Intended Exclusion<\/strong>\u201d); and (2) an exclusion for \u201cabuse\u201d which was defined in the policy as \u201cany act or threat involving molestation, harassment, corporal punishment or any other form of physical sexual or mental abuse\u201d (the \u201cAbuse Exclusion<\/strong>\u201d).<\/p>\n\n\n\n To support her argument that the insurer had a duty to defend the action, the Petitioner drew a distinction between \u201cintent to injure\u201d and \u201cintent to act,\u201d arguing that coverage for the former was ousted by the exclusion clauses while the latter was not.\u00a0The Petitioner argued that the alleged bodily injury of the infant plaintiff which arose from negligence on her part was covered but bodily injury intended by her when handling the infant plaintiff was not covered.\u00a0 The Petitioner argued that the Expected or Intended Exclusion must be interpreted keeping in mind that the clause\u2019s purpose is to maintain the principle of fortuity. \u00a0If Ms. Henderson, by negligence, gross negligence, recklessness or stupidity handled the infant plaintiff and caused damage, coverage cannot be denied under the Expected or Intended Exclusion.<\/p>\n\n\n\n In making this argument, the Petitioner relied upon the Supreme Court of Canada\u2019s decision Non-Marine Underwriters, Lloyd\u2019s of London <\/em>v.Scalera, <\/em>2000 SCC 24 (\u201cScalera<\/em>\u201d). \u00a0In that decision Justice Iacabucci discussed how almost every negligent action can be traced back to a intentional act or a failure to act. \u00a0If insurance clauses were interpreted to exclude all intentional actions, virtually all negligence would no longer be covered.<\/p>\n\n\n\n The Petitioner also argued that it is possible for someone to assault an infant without intending harm and that, as a result, the exclusion did not apply. Further, the Petitioner argued that the Abuse Exclusion did not apply because the pleadings did not allege \u201cmolestation, harassment, corporal punishment or any other form of physical sexual or mental abuse.\u201d \u00a0Due to the missing comma, the exception covered \u201cphysical sexual abuse\u201d but not \u201cphysical abuse.\u201d<\/p>\n\n\n\n Conversely, the insurer argued that both exclusions applied, and that this was an intentional tort \u201cdressed up as negligence.\u201d Further, the insurer argued that the court in Scalera<\/em> confirmed that the duty to defend will not be triggered simply because a claim can be cast in terms of both negligence and intentional tort. If the alleged negligence is based on the same harm as the intentional tort, the law will not allow the insured to avoid the exclusion clause for intentionally caused injuries.<\/p>\n\n\n\n The British Columbia Supreme Court concluded that the negligence claim was derivative from the assault claim and, as such, subsumed by the assault claim.\u00a0 Both claims arose from the same actions and caused the same harm.\u00a0 The actions of the Petitioner fell within the Expected or Intended Exclusion and the insurer did not have a duty to defend the action.<\/p>\n\n\n\n This decision confirms that the courts are not bound by the \u201clegal labels\u201d chosen by the plaintiff and that a choice of words cannot change an intentional tort into a negligent one. The duty to defend will not be triggered simply because a claim can be cast in terms of both negligence and intentional tort. If the alleged negligence is based on the same harm as the intentional tort, the law will not allow the insured to avoid the application of an exclusion clause for intentionally caused injuries. Underwriters presented with a claim for negligence based upon an intentional act should carefully consider these issues to determine if the claim is ousted from coverage by reason of an intentional acts exclusion clause.<\/p>\n","protected":false},"excerpt":{"rendered":" Introduction Recently, in the context of an alleged \u201cshaken baby\u201d claim, the Supreme Court of British Columbia considered whether an insurer had a duty to defend a claim against its insured arising from allegations framed in both negligence and assault. The insurer denied coverage on the basis of a policy exclusion for expected or intended […]<\/p>\n","protected":false},"author":1,"featured_media":14367,"parent":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[525],"insight-format":[418],"class_list":["post-6001","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insurance"],"acf":[],"yoast_head":"\nThe Decision<\/h2>\n\n\n\n
Conclusion<\/h2>\n\n\n\n