District Judge Mae A. D’Agostino1 DECISION & ORDER I. INTRODUCTION This action was originally commenced in Albany County Supreme Court seeking to enforce a $350,000 Consent Judgment obtained by Plaintiff Tara Bunnenberg (“Bunnenberg” or “Plaintiff”) against Defendant Liberty Mutual Fire Insurance Company’s (“Defendant” or “Liberty”) insured, Lauren McCormack (“Lauren” or “McCormack”). ECF 2. The underlying incident stems from an October 26, 2011, physical altercation at SUNY Maritime College between Plaintiff and McCormack which resulted in the fracture of the left orbit of Plaintiff’s eye (“the Incident”). Id. On November 8, 2022, the case was removed to this court based upon diversity of citizenship. ECF 1. Now before the Court is Defendant’s motion for summary judgment seeking to dismiss the Complaint in its entirety, see ECF 36, which Plaintiff opposes, see ECF 38, and to which Defendant files a reply. See ECF 44. The Court will decide the motion based on the parties’ submissions and without oral argument. For the following reasons, the motion is denied. II. BACKGROUND As explained more fully below, following an October 26, 2011 physical altercation between Plaintiff and McCormack, Plaintiff commenced a civil action against McCormack entitled Tara Bunnenberg v. Lauren L. McCormack, Index No. 013612/2012, in Nassau County Supreme Court (the “Underlying Action”). In the Underlying Action, Plaintiff obtained a $350,000 Consent Judgment against Defendant’s insured, Lauren McCormack. ECF 2. In the instant action, Bunnenberg seeks to enforce the Consent Judgment against an insurance policy issued by Liberty to Lauren’s parents. See ECF 2. Defendant argues that Liberty’s policy does not cover Lauren for the claims alleged in the Underlying Action that resulted in the Judgment. Rather, Defendant argues, the facts show that the claims arose from the non-accidental assault and battery of Bunnenberg by Lauren. ECF 36-19 at p. 1. Defendant further contends that there is no coverage under Liberty’s policy for these claims because (1) they do not fall within the insuring agreement of the policy in that the claims are not for injury “caused by an ‘occurrence,’” as that term is defined in the Liberty’s policy; and (2) coverage is completely barred by an exclusion for bodily injury “[w]hich is expected or intended by one or more ‘insureds’,” and here, given the facts, Lauren expected to cause Bunnenberg bodily injury. Id. Plaintiff counters: Application of the relevant language of the Liberty Policy to the true facts and governing law here leads to the inescapable conclusions that: (i) Bunnenberg’s claims against McCormack arose out of an “occurrence” within the meaning of the Liberty Policy; (ii) the “expected or intended” exclusion relied upon by Liberty is completely irrelevant to the claims at hand and/or Liberty as a matter of law is precluded from relying upon that exclusion; and (iii) Liberty is obligated to indemnify McCormack for the Judgment which Bunnenberg obtained against her. Or, at the very least, material questions of fact which cannot be resolved upon summary judgment exist as to one or more of these issues. ECF 38, at p. 8, 22. The Liberty Policy Liberty had issued Homeowners Policy, No. H32-228-885629-000 6, with a policy period from November 7, 2010 to November 7, 2011,2 to Lauren’s parents, James C. McCormack and Vivian L. McCormack, as the Named Insureds (the “Liberty Policy”). See Brown Decl., ECF 36-1,
3-4;3 Liberty Policy, Def. Ex. A, ECF 36-3. Lauren is an insured under the Liberty Policy. See Def. Ex. A, at “Definitions”,”3. Insured” (Bates No. LMFIC 0766). The Liberty Mutual Policy contains a Personal Liability insuring agreement, as amended by endorsement, that provides: COVERAGE E — Personal Liability If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property 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. Damages include prejudgment interest awarded against the “insured”; 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. Brown Decl. 5 (quoting Def. Ex. A). The Liberty Mutual Policy defines the term “occurrence” as follows: 5. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. “Bodily injury”; or b. “Property damage.” Brown Decl. 6 (quoting Def. Ex. A). The Liberty Mutual Policy contains an exclusion, as amended by endorsement, that provides: 1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to “bodily injury” or “property damage”: * * * a. Which is expected or intended by one or more “insureds”; Brown Decl. 7 (quoting Def. Ex. A). The Underlying Action and Other Relevant Factual Background On October 26, 2012, Plaintiff commenced the Underlying Action. The Complaint in that action alleged, inter alia, that, unprovoked, “McCormack intentionally attacked, struck, battered, and bruised Bunnenberg,” and “[a]s a consequence of the assault and battery committed by McCormack upon Bunnenberg, she has suffered severe and permanent injuries.” Def. Ex. B, ECF 36-4,
