Coverage dispute; “Occurrence”; “Accident”; Allstate Ins Co v McCarn; “Intended or expected” language in a policy exclusion; Auto-Owners Ins Co v Harrington

The court held that the trial court clearly erred in granting plaintiff summary disposition, ruling that he was covered under the insurance policies at issue, because his actions could not “be considered an ‘occurrence’ under the” policies’ definitions. He was an employee of defendants’ insured, a market. He was arrested for allegedly assaulting a customer, who sued the market “and plaintiff for assault and negligence.” Both policies contained similar provisions as to coverage for “bodily injury.” On appeal, defendants argued the trial court erred in “determining plaintiff was covered under both insurance policies on the basis that reasonable force was used by plaintiff because the trial court did not first determine the assault was an ‘occurrence’ under the policies.” The court noted that each “policy applied only if the ‘bodily injury’ was caused by an ‘occurrence,’ which is defined as ‘an accident, including continuous or repeated exposure to substantially the same general harmful conditions.’” Thus, the court had to “determine whether the incident constituted an ‘occurrence’ such that the policy took effect.” The policies did not define the term accident. The court noted that in cases where this term was not defined, the “Supreme Court has repeatedly stated that ‘an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated and not naturally to be expected.’” The court further noted that the policies here provided “an exclusion that no coverage exists for bodily injury expected or intended by the insured.” The court concluded that, considering “the incident from the standpoint of plaintiff as the insured, the incident was not accidental, even though the consequences of the customer’s injury may not have been intentional. Plaintiff testified he did not intend to harm the customer, but only intended to knock the phone out of the customer’s hand to prevent him from filming the encounter and because plaintiff did not want a video to reflect poorly on the store or its reputation. The recorded video of the incident clearly shows that plaintiff intended his actions and that plaintiff should have reasonably expected the direct risk of harm resulting from the consequences of his actions.” As his actions did not fit within the “Supreme Court’s definition of ‘accident,’” the trial court clearly erred. Reversed and remanded.