The Court of Appeals published Kentucky Farm Bureau v. Coyle, which discussed the application of the inferred intent rule in a shooting case. The case involved Tweed, the love interest, Coyle, her husband, and Elliot, a spurned suitor. After some stalking and a disagreement between Coyle and Elliot, Coyle filed shots on two occasions, which eventually hit Elliot. Elliot sued Coyle on grounds of assault and battery, but eventually amended his complaint to claim negligence. Kentucky Farm Bureau had written a homeowner’s policy for Tweed, under which Coyle was an insured. Coyle sought coverage under the policy. Farm Bureau sought summary judgment on two occasions, claiming that Coyle’s testimony and the other facts surrounding the case clearly showed an intention on the part of Coyle to shoot Elliot, negating coverage. Both motions were denied. A jury determined at trial that the shooting was the product of negligence and not intentional.
On appeal the court noted; “We acknowledge the rule “that if injury was not actually and subjectively intended or expected by the insured, coverage is provided even though the action giving rise to the injury itself was intentional and the injury foreseeable.” However, it noted an exception to the rule, the doctrine of inferred intent. The Court noted Kentucky’s acceptance of the rule and cited to several different factual scenarios supporting the use of the rule, including shootings, physical assaults, and sexual molestation.
After reviewing Kentucky law, the Court ruled:
Pursuant to the inferred intent doctrine, Coyle’s subjective intent to harm Elliott is irrelevant. Once Coyle admitted that he intentionally pointed his weapon at Elliott and that he “intended to discharge that bullet at Elliott[,]” we cannot avoid, except through a contorted logic, the determination: (1) that “the insured’s conduct is both intentional and of such a nature and character that harm inheres in it,” (2) “that it is appropriate to apply the inferred intent rule,” and (3) that Coyle’s “actual subjective intent to harm . . . becomes irrelevant.”
Accordingly, the Court concluded; “Application of the inferred intent doctrine compels the result that Farm Bureau was entitled to summary judgment following the completion of discovery, and the case should not have proceeded to trial. Thus, the trial court erred by denying Farm Bureau’s motion for summary judgment.”
Editor’s Note: (Disclosure: Farm Bureau is a client of mine). This case is interesting because it discusses in detail the adoption and application of the inferred intent rule in Kentucky. Frankly, I thought after the Stone and Nationwide cases that the issue of intent in shooting cases was resolved. You simply can’t point a gun at someone during a dispute, pull the trigger, and later claim you didn’t mean to harm them. It doesn’t make sense, and the Court was correct to reject that notion.
Another, interesting fact was that Coyle previously pled guilty to first degree assault under extreme emotional disturbance, which requires a finding of intent to cause physical injury. As a result, Coyle should have been estopped from claiming the shooting was unintentional at trial. However, this issue was never argued, apparently.
Of course, this case raises an interesting issue that comes up often. The claim that if the cause of action is not intentional then it was negligent. You see this most often when the facts suggest an intentional tort, but negligence is alleged to come within the coverage of a liability policy. The problem is that negligence does not mean unintentional conduct. It is a claim that has its own separate elements requiring its own separate proof, which does not include a finding of a “lack of intent”. Intentional conduct is conduct whose purpose is to result in harm, or in this case can be inferred to result in harm. Negligence is the failure of some legal duty that results in foreseeable harm. One is not necessarily the opposite of the other.
If someone claims they were assaulted, a finding that the act was not intentional does not mean the act was the result of negligence. It simply means the conduct was not an intentional tort for which recovery could be had. To hold otherwise, would result in conduct either being intentional or negligent, without any ability to find the conduct as neither. It would place the defendant in a position of either being guilty of an intentional tort or of negligence, but never being found innocent of either.
This doesn’t mean that a finding of negligence can never be reached in a case where intentional conduct is also alleged. It means only that to prove negligence, you must prove the individual elements, not merely show the defendant’s conduct was “unintentional.”
Supreme Court Adopts the Initial Permission Rule!!!
January 31, 2008
In a stunning decision, the Supreme Court has adopted the “initial permission rule”, which alters the omnibus clause of most, if not all, insurance policies and expands coverage to all subsequent users of an “initial permissive user.” In Kentucky, coverage is now afforded to anyone who is granted permission by an initial permissive user, regardless of the owner’s intent.
In Mitchell v. Allstate, the Supreme Court overturned a summary judgment that found no coverage under Allstate’s omnibus clause. Taylor gave her friend, Warner her husband’s car for use for an indefinite term. While the car remained in Taylor’s name, both parties were named insureds on the automobile policy issued by Allstate. Ms. Warner’s son, Allan, was allowed by Ms. Warner to drive the car to work. At one point during the day, he picked up two friends, and drove them around. Unfortunately, he had an accident and was killed. His two friends were seriously injured.
Allstate intervened seeking a declaratory judgment that it did not owe coverage because Allen did not have permission of the owner “Taylor” to drive the car. This was based on statements by Taylor that Allan was forbidden from driving the car by her and Ms. Warner. However, there were also statements by Ms. Taylor, as well as other facts, which indicated that Allan may not have been barred from using the car. In the alternative, Allstate argued that Allan exceeded the scope of his permission, and that this deviation was major, which would not provide coverage. (The minor deviation rule.)
The Supreme Court discussed the purpose of the omnibus clause, which is “to maximize the availability of insurance proceeds for the benefit of the general public.” It noted three types of thought on how to analyze whether a deviation from the scope of permission should negate coverage. The intermediate rule used by Kentucky called the “minor deviation rule”, which grants coverage when a minor deviation from the initial permission takes place. The more liberal rule is the “initial permission rule”, which allows for coverage even if the use of the vehicle was “not within the contemplation of the parties or was outside any limitations place upon the initial grant of permission.”
The majority believed that the adoption of the “initial permission rule satisfies the policy reasons and purpose behind Kentucky’s Motor Vehicle Reparations Act.” “By adopting the initial permission rule, we fulfill the general spirit and intent of KRS 304.39-030 to provide a victim the right to compensation for his/her injuries.” (emphasis in original). In doing so, the majority noted three other jurisdictions, which had adopted the “initial permission rule”, including Louisiana, Nevada, and West Virginia. Under this new rule, the summary judgment was improper.
Justice Minton and Abramson concurred in the result only. Justice Minton believed that the facts were in dispute regarding the permission granted to Allan, and that fact alone prevented summary judgment. He did not believe that the Court needed to delve into the “initial permission” issue. He also believed that this determination was best left to the legislature after public debate.
Perhaps more interesting is Justice Minton’s discussion regarding the actual purpose of the MVRA and how it did not compel the result sought by the majority. He believed that the MVRA actually reflects a policy choice “to provide liberal wage loss and medical benefits without the victim’s being forced into litigation regarding fault.” He opined that the “prompt and liberal recovery” discussed by the MVRA actually relates to no-fault benefits. In fact the MVRA actually limits tort liability. He believed that the sought after reduction in lawsuits meant fewer lawsuits over minor accidents and not necessarily less lawsuits over whether coverage existed.
Clearly summary judgment was inappropriate in this case based on the dispute among the parties regarding the actual permission granted. However, the majority takes it one step further and simply abandons decades of Kentucky law. In doing so, they base their decision on questionable precedent. The entire citation regarding the purpose of the initial permission rule is based on secondary sources and an afterthought mention of a New Mexico case. The majorities’ reliance on the MVRA is likewise broad and mostly misplaced. The majority apparently does not differentiate between tort liability and no-fault benefits or the affect of the no-fault act, which is actually to REDUCE tort liability, not extend it.
The logical extension of the majority’s reasoning is that no exclusion or denial of coverage is permissible in Kentucky, because its affect is to render a party uninsured, which is a public policy violation based on the MVRA. Contrary to the majority’s view, I do not think that the MVRA was passed to insure compensation for every automobile accident victim or to provide a social welfare network for uninsured cases. This majority’s consistent use of such assertions, its reliance on secondary legal sources, and adoption of minority views, appears to be an indication that it will not hesitate to overrule decades of established Kentucky law to accomplish its objectives. I find this to be particularly disturbing.
That being said, one can certainly sympathize with the injured persons who would have no likely source of recovery otherwise. This would be a harsh result especially since they are not aware of the permission granted Allan, and most likely would assume he had permission to drive the vehicle. Unfortunately, the purpose of liability insurance is not to insure that every driver who operates the vehicle is an insured driver. AND as I have mentioned before, liability insurance is not designed to compensate victims, it is designed to protect negligent drivers. The proper way to reach an adoption of the “initial permission rule” is to determine how it would be fair to Allan, to deny him coverage when the scope of his permission (or lack of permission) was never determined and when he apparently had express permission from his mother, who had possession of the car. While the result may be the same, the path is different, but avoids the broad ramifications the majority adopts.
This decision will impact every automobile insurer in the Commonwealth. Does the majority honestly believe that the business of insurance will simply continue as before, only permission will be an occasional issue for litigation? Every insurance company doing business in Kentucky must now account for the risk involved in insuring essentially everyone driving a car with someone’s (not necessarily the owner’s) permission. The result of course is higher premiums to account for this increased risk. Higher premiums results in a higher risk of uninsured vehicles on Kentucky’s roads. This result is certainly not one of the policy reasons behind the MVRA.
By the way, guess which two states were cited by the National Association of Insurance Commissioners in 2005, as being in the top ten most expensive states for automobile insurance, Louisiana (5) and Nevada (10). West Virginia was not far behind (15).
KENTUCKY TORT JOURNAL 