For years little kids have been subjected to adults grabbing their noses and then placing a thumb between two fingers and declaring: “I got your nose!” To the relief of the child the nose is then miraculously returned to its rightful place on their face. While tens of millions of nose removals have been quickly remedied, for Josh Pemberton it wasn’t just a case of Uncle Joe being crazy Uncle Joe.
A portion of Pemberton’s nose was bitten off in a bar fight in Washington. To be clear, Pemberton’s nose was not just bitten. A portion of it was bitten off. The only thing more painful that having a portion of your nose bitten off is watching commercials with the Trivago guy.
Not surprisingly Pemberton filed suit against the attacker – Kenneth Nieto (Ni-ate-o). Not surprisingly Nieto sought coverage under his homeowner’s policy. Not surprisingly the insurer disclaimed coverage on the basis that biting off someone’s nose is not an occurrence. Not surprisingly it had been pleaded in the complaint that it was. Not surprisingly coverage litigation arose over whether biting off someone’s nose can be an accident. And, not surprisingly, a case involving coverage for biting off someone’s nose ended up in Coverage Opinions.
The fight at issue in Metropolitan Prop. Cas. Ins. Co. v. Nieto, No. 13-5805 (W.D. Wash. July 2, 2014) started between two women over one of them pretending to “borrow” a cigarette out of the other’s purse. One of the women had the other pinned to the floor and was punching her with closed fists. Their boyfriend’s and husband’s got involved and began rolling around on the floor. Pemberton began head-butting Nieto in the lip. Nieto then bit down and severed a portion of Pemberton’s nose.
The last unsurprising part of this story is the Washington District Court’s decision that no coverage was owed, despite how the incident may have been pleaded: “Starting a fight, or joining a fight, and biting another’s nose are all deliberate acts, and no unforeseen event rendered them accidental. Pemberton’s complaint strategically couches the Nietos’ actions in ‘negligence’ terms, but that word choice cannot conceal the intentionality of their acts. The policy unambiguously excludes intentional actions from coverage.”
I set out to learn if Nieto is the first-ever case to address coverage for biting off someone’s nose. It seems like it may have been. It’s not. In fact, not only is it not the first, there are a few others. But what happened in West American Insurance Co. v. Maestas, No. 84-K-1584 (D. Colo. April 21, 1986) just blew me away. It makes Josh Pemberton’s injury look like a paper cut. The Maestas court put the facts like this: “The facts are worth noting. Maestas and Castro were occasional drinking buddies who were acquainted through work and softball team activities. On the night of December 5, 1982, they were drinking and socializing in a bar. The evening’s events did not remain subdued and tranquil, however. Epithets were exchanged and fisticuffs ensued. Maestas and Castro were asked to leave the bar premises. Round two took place in the parking lot. Though each claimed the other was the initial aggressor, Maestas lost; his nose and ears were bitten off.” [Castro was convicted of criminal assault and sentenced to four years in prison.]
The Maestas court held that no coverage was owed, despite the complaint’s allegation that it “sought damages from Castro due to negligence!” The court used few words to reach its decision but they were nothing to sneeze at: “West American Insurance Company is the issuer of a homeowner’s policy to Castro which protects the homeowner from lawsuits based on the negligent conduct of the policy holder. Thus, mirabile dictu, we now see why Maestas ascribes the loss of his nose and ears to Castro’s failure to exercise the care that a reasonably prudent person would under similar circumstances. Of course, it cannot be gainsaid that a reasonably prudent person would eschew similar circumstances. Thus, the law’s time-honored test of reasonable prudence is inapplicable to the facts presented. After the fashion of William of Occam preference should be given to a test of known quantities: three bites do not a negligence case make.”
A review of nose-biting coverage cases reveals the following lesson:
If you seek coverage for biting off a nose;
Your insurer will certainly oppose;
You will have it tough when it comes time to depose;
So here is what I propose;
Stick to the method of Uncle Joe’s.
That’s my time. I’m Randy Spencer.
Contact Randy Spencer at Randy.Spencer@coverageopinions.info