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Vol. 5, Iss. 1
January 13, 2016

Impressive Example Of A Plaintiff “Pleading Into Coverage”

 

We all know that plaintiffs’ attorneys sometimes draft a complaint in an effort to so-called “plead into coverage.” It often looks like this. The plaintiff is suing the defendant for personal injuries, on account of some type of physical assault or wrongful conduct on the part of the defendant. The plaintiff’s attorney is well aware that his or her best hope for collecting a judgment is from the defendant’s homeowner’s insurer. So, despite how intentional the defendant’s conduct may have in fact been, the plaintiff’s attorney includes an allegation in the complaint that it was negligent. The purpose here is obvious. It is an effort to trigger the liability section of the defendant’s homeowner’s policy – something that would be very difficult to do if all of the allegations in the complaint were that the defendant acted intentionally. In other words, the negligence allegation in the complaint is a ploy in an effort to avoid a disclaimer from the defendant’s insurer on the basis of no “occurrence” or the “expected or intended” exclusion.

I know this. You know this. The defendant knows this. And, thankfully for insurers, so does the judge. Courts are often times not fooled by this so-called “artful drafting” in an effort to trigger coverage. Courts often look at the complaint (defendant stabbed the plaintiff 17 times), understand that it’s all about an intentional act that would surely be known to cause the injuries, give no credence to the “negligence” label attached to a count (defendant was negligent in that he should have known not to place the knife into the plaintiff’s chest 17 times), and conclude that no defense is owed based on no “occurrence” or the “expected or intended” exclusion.

But sometimes plaintiffs succeed in using artful drafting to trigger the defendant’s policy. And you’d be hard-pressed to find a more impressive example of this than Allstate Ins. Co. v. Neleber, No. 14-629 (D. Conn. Sept. 15, 2015). Not only is it impressive, but the plaintiff (maybe purposely; maybe by accident) provided a lesson how others can achieve such success. [The case, from September, is a little old for a CO write-up. I just missed it at the time it came out.]

The facts are not out of the ordinary (actually, they are very out of the ordinary, but not when it comes discussing these types of situations): “On or about June 9, 2013, Astram and Neleber were both guests at the home of George and Susan Kulp in North Haven, Connecticut. On that occasion Neleber struck Astram about the face and head causing Astram injuries and damages including, but not limited to, a fractured jaw, broken and missing teeth, difficulty eating and sleeping, and psychological pain and suffering.”

The causes of action are what you would expect to see—Assault and Battery and Negligence. Negligence you say. How can this be negligent?, you ask. Easy. The plaintiff alleged that defendant “swung his arms when he was inattentive to the presence of individuals around him.” I know, it’s breathtaking.

The court concluded that Allstate owed a defense to its insured under a homeowner’s policy. The trouble for Allstate was that, even though Count One alleged Assault and Battery, the complaint contained a scarcity of factual allegations concerning the incident in question. Specifically, Count I simply alleged that Neleber did commit an Assault & Battery upon the plaintiff by striking him about the head and face. Based on these limited allegations, the court concluded that even the Assault & Battery count did not clearly implicate intentional acts. From there, it wasn’t even necessary to determine whether the incredible “negligence” allegations (defendant “swung his arms when he was inattentive to the presence of individuals around him”) should be ignored based on being artfully pleaded.

The court noted that “the meager factual allegations contained in the Astram Complaint are not sufficient to demonstrate the applicability of the policy’s intentional or criminal acts exclusion. It is, of course, entirely possible that the paucity of factual allegations in the Astram Complaint is by design, and that Neleber’s actions were indeed intentional. In deciding whether to grant Allstate’s motion, however, the Court is limited to a review of the policy and the factual allegations contained in the Astram Complaint.”

On one hand, Neleber is not in fact an “artful pleading”/“plead into coverage” case. The court never actually needed to address whether the negligence count was hogwash since even the cause of action with an intentional label (A&B) wasn’t necessarily intentional. However, the case still belongs in the “plead into coverage” category (and a masterful one at that) on the basis that it was the scarcity of allegations in the complaint (possibly by design, as the court noted) that dictated the outcome. The lesson here for would-be pleaders into coverage is obvious.

 
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