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INSURANCE COMPANY GETS COOKED

Insurance companies will typically not cover the willful or intentional acts of an insured. So, when a man was shot and killed by Alfred S. Cook in Cook's home, it should have come as no surprise that the carrier of Cook's homeowner policy sought to disclaim coverage.
In an unusual case, on February 20, 2002, Richard Barber and a group of four men forcibly entered Cook's home demanding money. In fear for his life, Cook drew a .25 caliber hand gun and demanded that the men leave his house. When they refused, Cook withdrew to this bedroom and returned with a 12 gauge shotgun. Although he initially started to retreat, Barber retraced his steps and "menacingly" advanced toward Cook, at which point, Cook aimed his shotgun at Barber's navel and shot him. (Barber subsequently died.)
Cook was later criminally prosecuted, but a jury acquitted him of all charges. Notwithstanding the acquittal, Barber's estate representative later commenced a civil lawsuit against Cook alleging various tort theories, including negligence. When Cook sought assistance from the carrier of his homeowner's policy, Traveler's Insurance Company disclaimed coverage, citing to the intentional nature of the insured's conduct. The insurer later commenced a suit seeking an order from the court declaring the company free of any responsibility to defend or indemnify their policy-holder. The Albany County Supreme Court denied the company's request, finding a duty to defend as a result of the negligence allegations made within the underlying complaint. On appeal, the Appellate Division, Third Department, reversed citing to policy exclusions dealing with "expected or intended" acts committed by the insured.
When the case reached the state's highest court, the Court of Appeals found the policy exclusions did not immediately negate the company's responsibility and that the negligence complaint's allegations warranted the company's involvement in the insured's defense (even though ultimately the company might not be required to pay any judgment awarded against Cook once the litigation ran its full course). As the Court observed:

An examination of the wrongful death complaint leads to the conclusion that Cook's claim is covered by the policy. Among other things, the complaint alleges that Cook negligently caused Barber's death. If such allegations can be proven, they would fall within the scope of the policy as a covered occurrence. The policy defines an "occurrence" as an accident, and we have previously defined the term "accident" albeit in a life insurance policy "to pertain not only to an unintentional or unexpected event which, if it occurs, will foreseeably bring on death, but equally to an intentional or expected event which unintentionally or unexpectedly has that result"...Thus, if Cook accidentally or negligently caused Barber's death, such event may be considered an "occurrence" within the meaning of the policy and coverage would apply. The fact-finder in the underlying action may indeed ultimately reject the notion that Cook negligently caused Barber's death given the evidence of intentional behavior, but that uncertain outcome is immaterial to the issue raised here--the insurer's duty to defend in an action where it is alleged that the injury was caused by the negligent conduct of the insured.
Is this an instance of one too many cooks?
For a copy of the Court of Appeals's decision in Automobile Insurance Co. of Hartford v. Cook, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_04456.htm
For a copy of the Appellate Division's decision in this case, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2005/2005_06707.htm

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