681 N.Y.S.2d 414 | N.Y. App. Div. | 1998
Appeals (1) from an order of the Supreme Court (Ingraham, J.), entered January 6, 1998 in Otsego County, which granted plaintiffs motion for summary judgment and declared that plaintiff has no duty to defend or indemnify defendant, and (2) from the judgment entered thereon.
On September 5, 1992, defendant and several acquaintances had been drinking at a bar in the City of Oneonta, Otsego
Plaintiff commenced this action seeking a declaration that it did not have a duty to defend or indemnify defendant in Fish’s tort action based on the fact that Fish’s injuries were an expected or intended consequence of defendant’s intentional assault. Supreme Court granted plaintiffs motion for summary judgment and defendant now appeals.
It is well settled that an insurer’s duty to defend is broader than its duty to indemnify and a defense must be provided unless the insurer demonstrates “ ‘that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation’ ” (Allstate Ins. Co. v Mugavero, 79 NY2d 153, 159, quoting International Paper Co. v Continental Cas. Co., 35 NY2d 322, 325). Although an insurer’s duty to defend is based upon allegations contained in the complaint (see, Allstate Ins. Co. v Mugavero, supra, at 162), extrinsic facts may be considered by the insurer (see, Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Robbins v Michigan Millers Mut. Ins. Co., 236 AD2d 769, 770). In determining whether the intentional acts exclusion of a policy bars coverage, the relevant inquiry is “whether there is any possible factual or legal basis upon which to find that the bodily injuries inflicted upon [Fish] were not ‘expected or intended’ by [defendant]” (Home Mut. Ins. Co. v Lapi, 192 AD2d 927, 928).
Here, there are no facts set forth in the complaint or evident in the record to suggest that the incident was not the result of intentional conduct. It is undisputed that defendant intentionally, and without warning, struck Fish in the jaw with a closed fist which caused him to fall to the ground. Under these cir
Defendant argues that he acted in a “reckless and stupid manner” but that he did not intend to injure Fish. An insurer’s duty to defend, however, will not be triggered merely by a claim that the injuries resulted from an intentional act but were unintended where, as here, the harm to the victim was inherent in the nature and force of the act (see, Allstate Ins. Co. v Mugavero, supra). Defendant’s statement during his deposition intimating that he did not intend to injure Fish is conclusory, unsupported and not credible as a matter of law (see, Home Mut. Ins. Co. v Lapi, supra, at 929-930). Since plaintiff has demonstrated that there is no possible factual or legal basis upon which to find that the injuries sustained by Fish were not “expected or intended” by defendant (see, id.), Supreme Court appropriately granted plaintiffs motion for summary judgment and made a declaration in its favor.
Cardona, P. J., Peters, Spain and Carpinello, JJ., concur. Ordered that the order and judgment are affirmed, with costs.