Does Insurance Cover Court Award Damages for Assaulting a Person ?
In Cowan v. Insurance Co. of North America, 22 Ill. App. 3d 883, 318 N.E.2d 315 (1974), the plaintiff had an altercation with a man, knocking him down and causing him to fracture his leg.
The victim sued the plaintiff in the underlying action, alleging that the plaintiff violently assaulted him and that the assault was willful and malicious.
The jury in the underlying action awarded him $ 8,000.
The plaintiff then brought a declaratory judgment action against his liability insurer to compel payment of the judgment.
The complaint in the declaratory judgment action alleged that during the altercation, the plaintiff inadvertently came in contact with the victim, causing him to lose his balance and fall to the ground, and that the act causing the injury was unintended and accidental.
The insurer argued that the doctrine of collateral estoppel prevented the plaintiff from relitigating the intentional injury issue in the declaratory judgment action.
This court held that to be absolved from liability under the policy exclusion, the insurance company had to demonstrate that the plaintiff specifically intended to injure the victim. Cowan, 22 Ill. App. 3d at 893.
This court noted that "the gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff." Cowan, 22 Ill. App. 3d at 890.
The jury was instructed that a willful and malicious assault occurred if the plaintiff intended the harm or displayed an utter indifference to or a conscious disregard for the safety of others. Cowan, 22 Ill. App. 3d at 894-95.
Since the instruction was in the disjunctive, it could not be presumed that the jury actually decided the issue of an intentional injury. Cowan, 22 Ill. App. 3d at 895.