The Court of Appeals just published Nationwide Mutual Fire Ins. Co. v. Pelgen, et. al, which dealt with “inferred intent” as it applies to exclude coverage for intentional acts. “Under Kentucky precedent, certain actions by the insured give rise to an “inferred intent,” regardless of the actor’s actual intent, so as to preclude coverage.” The issue addressed was whether the Campbell Circuit Court erred in failing to apply the inferred intent rule to an insured who killed his wife at a time when it is alleged that he lacked the mental capacity to form intent.

Charles R. Swope fatally shot his wife, Cloay Lou Swope, and then shot and killed himself. Some time prior to the incident, Cloay had moved out, and apparently the couple’s marriage was floundering. Cloay was outside at Charles’ residence, the former marital home, when Charles retrieved a shotgun and shot Cloay twice, while she held their three-year-old daughter. He then went inside and shot himself. The record does show that for several years preceding the tragic event, Charles suffered from mental illness manifesting in psychosis, delusions, auditory hallucinations and suicidal thoughts, and that his mental condition probably deteriorated further during the four to six months preceding the shootings.

The administratrix of Charles’ estate, sought personal liability coverage under a Nationwide Homeowner’s policy. Nationwide denied coverage in part under the policy’s stated exclusion for bodily injury “caused intentionally by . . . an insured, including willful acts the result of which the insured knows or ought to know will follow from the insured’s conduct.” The Circuit Court held that Nationwide could not rely on the policy exclusion to deny coverage for the harm resulting from Swope’s acts, because Swope lacked the capacity to understand the physical nature of the consequences of his actions and could not form any intent.

The Court discussed the inferred intent rule under Kentucky law. It concluded; “The inferred intent rule is supported by sound public policy principles, in part because it removes from the trial court the burden of determining an actor’s thought process when engaging in conduct resulting in harm. That is to say, in certain circumstances one may reasonably infer from the facts that the actor intended the harm, without needing to resort to proof of that intent.” The Court then discussed the application of the rule to the current case:

We believe it would be similarly unsound to hold that Swope acted unintentionally when he deliberately pointed a gun at his wife’s face, pulled the trigger, and then took the same gun and shot himself. As noted above, the couple was estranged, their relationship was subject to ongoing strife, Swope retrieved a shotgun from the house, and he used it on his wife, the person with whom he was in conflict. Regardless of whether he was psychotic or unable to appreciate right from wrong, his state of mind obviously was such that he was able to act deliberately and intentionally with respect to Cloay. Additionally, he had sufficient presence of mind not to shoot his daughter whom his wife was holding or any other family members or neighbors who may have been in the area. We conclude, therefore, that the Campbell Circuit Court erred in failing to apply the inferred intent rule.

While the Court was sympathetic to the Swope family, it did not believe Nationwide “contracted to provide coverage in instances like the one at bar.”

Two things come to mind. The first is that coverage under the Nationwide policy is provided for “accidents.” It is not an “all risk” policy, providing coverage for any and all occurrences. Before you even reach the question of whether the act for which coverage is sought is excluded as “intentional”, you must first determine whether it even qualifies for coverage. There are no facts in this case, which would even remotely suggest this is an accidental shooting. Simply put, there is no coverage for this claim, regardless of Swope’s intent at the time of the shooting, without some indication it was accidental. The fact that Swope could not allegedly form intent, does not make this an accident covered under the policy.

Second, the Court was correct to note that Swope’s actions, although perhaps excusable due to his mental state, are still intentional ones, excluded under the policy. Swope intentionally shot and killed his wife. There is no other reason that he went into the house, grabbed a loaded shotgun, pointed it at his wife’s face, and pulled the trigger twice, then went into the house and shot himself. Can it even be rationally argued that his intent was anything else but to do harm to his wife and himself? While Swope may be excused from criminal sanction due to his mental state, (although if he lived I seriously doubt he would be excused), that fact alone does not make his actions any less intentional. This is certainly a sad and unfortunate case, but it’s simply not the kind of “occurrence” that homeowners’ policies are meant to cover.

The Supreme Court recently published Steel Technologies, Inc., v. Congleton, et. al, which dealt with the award of damages for pre-impact fear. The case arose from a tractor-trailer accident, that resulted in the death of Melissa Congleton. Steel Technologies employed the driver to haul large steel coils. He used three chains, instead of at least five as required. One of these coils fell from the truck striking Congleton. She died at the scene.

At the close of of defendant’s case, the court determined that instructions on pain and suffering after the impact would be improper. However, it decided that the evidence supported giving an instruction on the emotional distress caused by Congleton’s perception of the impending impact. The jury returned an award of $100,000.00 for pre-impact fear.

Steel Technologies argued that the award for pre-impact fear conflicted with longstanding Kentucky law. Specifically, it argued that the jury instructions and the award violated the impact rule for negligently inflicted mental damages. The evidence supporting the verdict included skid marks, showing Congleton anticipated the collision, and testimony that even after death, her face was fixed in the expression of a scream.

The Supreme Court noted that touching has traditionally been required before recovery may be had for negligently inflicted emotional distress, citing to Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980). In fact, Deutsch does note that “[c]ontact, however, slight, trifling, or trivial, will support a cause of action.” Cases like Deutsch followed the spirit and essence of the Restatement (Second) of Torts 456, which comments on recovery in just such an instance.

However, the reading of Deutsch is incomplete. “It is necessary that the damages for mental distress sought to be recovered be related to, and the direct and natural result of, the physical contact or injury sustained.” The cause of action does not even accrue until physical injury manifests itself. The rule is clear: It is not enough that emotional distress be accompanied by contact–it must be caused by the contact. This also means any contact must precede the emotional distress before recovery is permissible.

The Court specifically rejected Congleton’s and Amicus’ attempts to do away with the impact rule. It even noted this case was not a particularly good one to alter Kentucky law given the speculative nature of the evidence supporting the claim, which consisted primarily of the opinion of an emergency services worker about what the grimace on the victim’s face meant. However, the Court left open the possibility of revisiting the rule, should the correct case have a first hand account or reliable eye-witness testimony available, and there is demonstrable evidence of mental distress manifesting in a medical injury proven through expert testimony.

Can’t wait to see these cases start lining up.

The Court of Appeals just published Hack v. Baker, which discussed the legal status of a child entering on a neighbor’s property at play and the legal duty owed to that child. Hack resided with his family in a residence located in a cul-de-sac. (Think Ed, Ed, and Eddy). One evening many of the families that lived in the cul-de-sac were out with their children playing in their various yards. However, the Bakers were not out that night. While playing on a property that was immediately adjacent to the Bakers’ residence, Hack ran through the Bakers’ yard and tripped over an unburied television coaxial wire. He then fell onto another neighbor’s driveway and shattered his right arm near the elbow.

Baker and Insight Communications contended that Hack was a trespasser to whom no duty was owed. The Circuit Court agreed and granted summary judgment. On appeal Hack claimed he had implied permission or invitation of the Bakers to be briefly on the property. He alleged it was the custom of those living in the neighborhood to allow, and even, expect, their neighbors to cross each other’s properties.

The Court of Appeals believed there were genuine issues of fact as to Hack’s status. It noted; customary use of property, without objection from the owner, “may give rise to an implication of consent to such use to the extent that the users have the status of licensees, where such habitual use or custom has existed to the knowledge of the owner… and has been accepted or acquiesced by him.””

This decision did not end the analysis, however. The question then became what duty the Bakers owed Hack if he was, in fact, a licensee. The Court concluded; “The key to the land occupier’s liability to the licensee lies in the knowledge of a condition which a reasonably prudent person would realize is dangerous to an unsuspecting licensee, should one come upon the premises.” Because the Bakers knew about the cable and Hack did not, genuine issues of fact existed as to whether the cable’s location constituted an unsafe condition, which created an unreasonable risk of danger to those living in the neighborhood.

As to Insight’s liability, the Court found that under Kentucky law, Insight stands in the shoes of the landowner in determining it’s duty to third parties injured by alleged negligence. While the Court did not believe this was necessarily a just result, it was constrained by precedent to agree.

This is an interesting case balancing the rights of landowners to be free from liability for trespassers, while at the same time considering the realities of suburban life. Again, think Ed, Ed and Eddy, the popular Cartoon Network about three kids who wreak havoc among their friends and neighbors in the cul-de-sac where they live. Certain questions of course immediately come to mind. Are the Bakers required to yell at the kids to “get off my lawn” every time one of the kids comes into the yard? (Remember that guy?) Better yet, are they required to put up no trespassing signs in their yard? At that same time, what do you expect moving to a cul-de-sac full of kids?

Of course the what’s really missing in this opinion is a discussion regarding indemnity. This is a classic Brown Hotel case, where the active negligence of Insight in leaving the cable unburied is the proximate cause of the injury. The liability of the Bakers is passive and based solely on their status as property owners. Clearly, these parties are not in para delecto, which is necessary for apportionment. It would appear that the Court should not concentrate so much on Insight’s liability to third parties, which is questionable, despite Kentucky precedent, but on Insight’s indemnification of the Bakers. If Insight is ultimately responsible for the injuries of Hack through indemnity of the Bakers, it has every incentive to step in and either defend the case or resolve it. This would place responsibility where it appears to belong, while maintaining the peace and quiet of cul-de-sac suburban life.