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Self-Defence Not an Intentional Act
Published in the March 2009 issue of Litigation Notes - View Article
“Intentional Act” exclusion in a homeowners policy does not apply where insured was allegedly acting in self-defence.
Mr. Glassford and Mr. Medeiros were neighbours. They didn’t get along. One day Mr. Glassford came home and found his driveway blocked with snow. Mr. Glassford believed that Mr. Medeiros had done this deliberately, in retaliation for a previous incident, in which Mr. Glassford had complained that one of Mr. Medeiros’ visitors had parked his vehicle in front of Mr. Glassford’s driveway.
According to Mr. Medeiros, Mr. Glassford crossed the street, threatened to kill him and his children and proceeded to beat him into unconsciousness.
According the Mr. Glassford, he crossed the street to speak to Mr. Medeiros, suggesting to him that if he had a problem he should address Mr. Glassford directly instead of engaging in surreptitious acts of retaliation. Mr. Medeiros allegedly became enraged and attacked him and Mr. Glassford was only defending himself.
Mr. Glassford was charged with assault and Mr. Medeiros sued him for damages.
Mr. Glassford had a homeowners policy with TD Home and Auto Insurance Company (“TD Home”). TD Home denied coverage on the basis of an exclusion in its policy which excluded claims for bodily injury or property caused by an intentional or criminal act by an insured. Mr. Glassford took the position that he was acting in self defence and that this was not an intentional or criminal act.
The Court reviewed the case law, primarily from the United States, with respect to self- defence and the intentional act exclusion. The Court points out that some insurance policies contain a “self defence” exception to the intentional acts exclusion. No such exception existed in the insurance policy in this case.
In the United States, the cases have gone both ways. Some States apparently consider that there are public policy benefits in providing insurance coverage for acts of self-defence. In other States the policy wording is construed more strictly and self-defence is considered to be an intentional act.
The Court in Glassford considered that self- defence was not an intentional act. Quoting from a decision of the Nebraska Supreme Court in Allstate Insurance Co. v. Novak, the Court said that “When one acts in self-defence the actor is not generally acting for the purpose of intending any injury to another but, rather, is acting for the purpose of attempting to prevent injury to himself”. The Court also was informed by the fact that a self-defence is lawful and provides a justification against a claim of assault.
The Court also considered the argument that if the defence of self-defence were accepted, there would be no duty to indemnify. Since the duty to defend only arises in circumstances where there is a duty to indemnify, it could be argued that a plea of self defence does not cause a duty to indemnify. The Court felt that this conflated the issues of duty to defend with the obligation to indemnify and that where a policy “provides that the insurer will defend the insured ‘even if the claim is groundless, false or fraudulent’, it should not be open to argue that the possible success of the defence of justifiable self- defence would vitiate any duty to defend”.
The Court went on to consider what material should be considered under the “pleadings rule” with respect to whether or not the duty to defend was triggered. The pleadings rule holds that where the pleadings contain allegations which could lead to a duty to indemnify by the insurer, there is a duty to defend. In this case the Court held that it should consider not only the allegations in the Statement of Claim, but also the allegations in the Statement of Defence. Since the Statement of Claim contained allegations which could only lead to the conclusion that there was a deliberate assault which would be excluded under the policy, the outcome of ignoring the Statement of Defence would be to force the insured to defend the action at his own expense and then to sue the insurer to recover costs at the conclusion of trial, if the defence of justifiable self-defence were made out.
The Insurer argued that since the criminal trial was scheduled to be heard within a few months the duty to defend issue could be deferred until the result of the trial was known. The Court refused to do so, saying that this would depart “too far from the clear policy expressed by out Court of Appeal that duty to defend issues should be adjudicated in an expeditious manner based upon the pleadings in the litigation”. Furthermore, the record before the Court did not contain enough information about the specific nature of the charges pending against Glassford so the Court felt that it was unable to assess the relevance of those charges to the claim asserted in the Medeiros action.
The Court therefore held that TD Home had a duty to defend the insured.
Glassford v. T.D. Home and Auto Insurance Company, 2009 CanLII 10397