The ''Intent to Do Harm'' Test

In Capitol Indemnity Corporation v. Blazer (1999) 51 F. Supp. 2d 1080, a federal district court applying Nevada law adopted the "intent to do harm" test. In Capitol Indemnity, the insured was found guilty of assault and battery, but contended his CGL carrier had a duty to defend because he did not intend to cause the victim's injuries, which included permanent loss of sight in one eye. ( Id. at pp. 1082-1083.) The court agreed with the insured's legal analysis and found the insured's intent to do the harm was a question of fact, and in determining whether there was an "accident" within the meaning of the policy, "the Court must examine whether Blazer, the insured in this case, expected or intended the victim's resulting bodily injuries." ( Id. at p. 1086.) This approach, focusing on "intent to do harm" as opposed to "intent to do the act," is fully consistent with the "inherently harmful" analysis articulated by our Supreme Court in J.C. Penney, supra, 52 Cal. 3d 1009, 1026. The Voorhees court noted "When the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor's subjective intent to injure. That objective approach focuses on the likelihood that an injury will result from an actor's behavior rather than on the wrongdoer's subjective state of mind.