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American Manufacturers Mutual Insurance Co. v. Morgan12/4/2001
damage caused by an occurrence to which this coverage applies, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable and
2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability. (emphasis supplied)
The policy defines "occurrence" as follows:
5. `occurrence' means an accident, including exposure to conditions, which results, during the policy period, in:
a. bodily injury; or
b. property damage.
The homeowner's policy provides coverage for defending and indemnifying claims for damages caused by an "occurrence," defined as an "accident" during the policy period. The homeowner's policy does not define "accident." "Our Supreme Court has held that when the term `accident' is not defined in an insurance policy, `accident' includes `injury resulting from an intentional act, if the injury is not intentional or substantially certain to be the result of the intentional act.'" Russ v. Great American Ins. Companies, 121 N.C. App. 185, 188, 464 S.E.2d 723, 725 (1995) (emphasis in the original) (quoting Stox, 330 N.C. at 709, 412 S.E.2d at 325). " n injury that is intentional or substantially certain to be the result of an intentional act is not an `accident.'" Id. (emphasis in the original) (citing Stox, 330 N.C. at 709, 412 S.E.2d at 325). " f an intentional act is either intended to cause injury or substantially certain to result in injury, it is not an occurrence under the policy definitions . . . and no coverage is provided." Henderson v. U.S. Fidelity & Guar. Co., 124 N.C. App. 103, 110, 476 S.E.2d 459, 464 (1996). In Russ we discussed whether the "bodily injury" complained of was covered by the policy which required that the "bodily injury" be caused by an "occurrence." The policy defined an "occurrence" as an accident but failed to define accident. After concluding that an accident does not include an injury that is intentional or substantially certain to result from an intentional act, we concluded "that since sexual harassment is substantially certain to cause injury to the person harassed, intent to injure may be inferred as a matter of law from the intent to act for the purpose of determining coverage under an insurance policy." Russ, 121 N.C. App. at 189, 464, S.E.2d at 725; see also Henderson, 124 N.C. App. at 111, 476 S.E.2d at 464 ("Notwithstanding . . . assertions that he did not intend or anticipate his misrepresentations to injure or damage plaintiffs, such purposeful and intentional acts were so substantially certain to cause injury and damage as to infer an intent to injure as a matter of law" and was not an occurrence). In Nationwide Mut. Ins. Co. v. Abernethy, 115 N.C. App. 534, 445 S.E.2d 618 (1994), we construed an exclusionary clause in an insurance policy, and determined that even though a predator did not intend injury by performing certain sexual acts on children, the intentional sexual acts necessarily implied intentional injury. In Eubanks v. State Farm Fire and Cas. Co., 126 N.C. App. 483, 487, 485 S.E.2d 870, 872 (1997), we stated that the act of solicitation to commit murder is so certain to result in emotional injury to the intended victim, spouse, or parent that intent to commit such injury may be inferred from the solicitous act. In all these cases, the insured's intent to injure was inferred from insured's intent to act and precluded coverage under their policies.
A. Criminal Co
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