Intentional Versus Negligent Conduct For Casualty Adjusters

1) Introduction and topic outline
a) Insurer’s duty to investigate
b) Policy language
c) Exclusions
d) Assault and Battery
e) Self-Defense
2) Choice of law
a) States vary widely in their application of the law in the area
b) Example: UIM in CA versus OR
3) Importance of the facts
a) Prior relationship between the parties
b) Exact events on date at issue
c) Differences in height and weight
d) Age difference
e) Familiarity with action
4) Recap

1) Elements of the underlying tort
a) The insurer is permitted to look at the elements of the tort
b) Example: Oregon, two types of conversion
i) Ordinary conversion
ii) Negligent conversion
2) Alleged facts versus legal labels
a) Majority: look to facts, not legal labels
b) Minority 1: third-party claimant’s characterization determines coverage
c) Minority 2: insured’s characterization determines coverage
3) Case example – copyright infringement
a) Copyright infringement is an intentional tort
b) Some states allow the selection of independent counsel in some situations
4) Recap

1) Four standards of intent
a) Subjective intent of the insured
i) Majority rule
ii) Test is whether there was an accident from the viewpoint of the insured
b) Objective intent of “reasonable” insured
i) Often make it more difficult for an insured to prove the conduct was accidental
ii) Test is whether a “reasonable insured” would have expected or intended injury to result
c) Standpoint of the victim
i) Fallen out of favor and rarely used
d) Nature of the act
i) Intent of the insured is irrelevant. All that matters is the nature of the act itself
2) Inferred intent
a) Child molestation
b) Sex torts against adults
c) Arson
d) Murder
3) New standard of intent in Ohio
a) Case sample
b) Nature of the act
4) Recap

1) Definition of “occurrence” in the policy
2) Exclusions – policy approaches
a) Subjective standard
b) Objective standard
c) Nature of the act
d) Intentional acts or omissions
e) Causation
3) Levels of conduct
a) Negligence
b) Recklessness
c) Intentional or expected
4) Examples – applications in specific states
a) West Virginia
b) Connecticut
c) Georgia
d) California
5) Recap

1) States’ approaches
a) Always intentional
b) Depends on facts
c) Always accidental
2) Case example number 1
a) American Family v. Johnson
b) Facts
c) Holding: Policy exclusion barred coverage
3) Case example number 2
a) American Best Food v. Alea
b) Facts
c) Holding: Exclusion did not apply
4) Recap

1) Self-defense definition
a) Always intentional
b) Depends on facts
c) Always accidental
2) Policy language issues with self-defense
3) Specific development in California
4) Case studies
a) Automobile v. Cook
b) Copp v. Nationwide
c) Penn Starr v. Griffey
5) Recap