Insurance Coverage for Intentional Torts
Our lawyers are often times confronted with cases where the clients complain of intentional torts committed against them. For example, we have had clients that have come in swearing that the driver that hit them did so on purpose because of some longstanding feud or vendetta. Unfortunately, if someone acts intentionally to cause harm, their insurance policy will typically provide no coverage for them. Insurance coverage is purchased to protect against negligent acts and omissions which give rise to liability to third parties. If someone intends to cause harm, there is no insurance for such actions. Thus, when a client comes in complaining of an intentional tort, whether it be an aggravated assault and battery, a rape or other intentional act committed by a third party directly against them, often times we have to discuss with the client whether there are any other assets sufficient to justify bring a lawsuit against the perpetrator because we know in advance that in such situations, typically insurance coverage will not apply.
Of course, many times there is third party liability insurance coverage available to satisfy the claims of victims of intentional torts. For example, if a rapist breaks in an apartment and rapes a young lady and it turns out that the management of the apartment complex was aware that the rapist had attacked other patrons, failed to implement security measures and failed to provide adequate security for the apartment itself, the landlord can be sued for its own negligence, even though the landlord did not intentionally cause the tort. The rapist, however, would have no insurance coverage for his actions, but if he was independently wealthy or otherwise had property, he could still be successfully sued and a judgment against his personal assets collected. The distinction, of course, is the difference between the acts which give rise to liability. One is predicated on a negligence theory whereas the other is predicated on an intentional tort being committed by the perpetrator.
In cases involving aggravated assault such as a fight where someone is hospitalized, if the perpetrator of the assault has assets, we can help the innocent victim of such an assault and obtain compensation for their injuries. The same is true of victims of sexual assault committed by a family member where, for example, a rich uncle sexually abuses a niece. We have seen cases where oftentimes it is necessary to go after the personal assets of criminals who commit intentional torts against third parties. The point we address in this article, however, is the dilemma caused by intentional behavior insofar as it impacts available insurance coverage which would otherwise provide coverage for the incident.
Even though insurance coverage is not available to cover intentional acts, specifically committed by the perpetrator with intent to cause harm, nonetheless, there are some legal advantages in an intentional tort case. For example, unlike a negligence claim, in an intentional tort case, the victim can be awarded not only their damages which includes all economic and non-economic damages, but also attorneys fees and punitive damages to punish the wrong doer. This is different from a negligence claim where attorney fees cannot be collected, nor punitive damages, unless there is also evidence of other willful and wanton misconduct.
Of course, each case is unique, but in analyzing what will best protect the innocent client’s interest, we always have to look at whether there are assets sufficient to compensate our client for the injuries they sustained. Many times, we can pursue an intentional tort theory and recover attorneys fees and punitive damages, but in other cases, if pursuing such a theory would result in no recovery for our client, we have to consider whether there is a negligence claim present that may allow us to protect our client’s interest by obtaining available insurance coverage. These cases can be tricky which is why it is always important for the client to retain competent counsel to evaluate alternative theories of liability that hopefully will result in compensation for the loss.
