In Brown Foundation, Inc. v. St. Paul Fire & Marine Insurance Company, Ky., 814 S.W.2d 273 (1991), the Brown Foundation was ordered by the Federal Environmental Protection Agency to cleanup one of its wood preserving treatment facilities.
The Foundation, which maintained several general liability policies, attempted to recover the cleanup cost from one of its insurance companies, St. Paul. St. Paul's general liability policy defined "occurrence" as "an accident, including continuous or repeated exposure to conditions, which result in bodily injury or property damage, neither expected nor intended from the standpoint of the insured." Id. at 275.
The court noted that the nature of the insurance policy suggested an expectation of maximum coverage and that the term "occurrence" was more expansive than the word "accident." Id. at 278. As for the "expected" or "intended" exception contained in the definition of "occurrence," the court determined that the insured must specifically and subjectively intend to cause injury in order for it to apply. Id.
With regard to the issue of the Foundation's state of mind, the court stated:
Certainly the circuit judge is not absolutely prohibited from inferring on summary judgment that an insured intended or expected damage regardless of whether the objective or subjective test is used. In some cases, it is almost irrelevant whether an objective or subjective test is applied because of the circumstances. Id. at 277.