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A federal district court in Pennsylvania has ruled that an insurance company had no duty to defend its insureds' son against a lawsuit alleging that he had committed an assault after consuming alcohol and while suffering from “mental health issues.”

The Case

John Waris sued Michael P. Neary Jr., alleging that he was the victim of a “violent criminal assault” by Neary. At the time, Waris asserted, Neary was suffering from “pre-existing mental health issues which may cause him to exhibit violent and aggressive behavior.” These mental health issues, Waris asserted, were “severely exacerbated upon consumption of alcohol” by Neary, and Neary had consumed alcohol on the night he assaulted Waris.

(Neary subsequently pleaded guilty to a felony charge of aggravated assault in a Pennsylvania state court and was sentenced to a term of imprisonment of eight to 23 months.)

Waris' complaint against Neary contained counts for negligence and recklessness, negligent infliction of emotional distress, and negligent failure to rescue. Waris sought compensatory and punitive damages plus interest, costs and attorney fees.

Homesite Insurance Co., which had issued a homeowner's insurance policy to Neary's parents, asked the U.S. District Court for the Eastern District of Pennsylvania to declare that it had no duty to defend or to indemnify Neary in the action brought by Waris.

Homesite moved for judgment on the pleadings.

The Homesite Policy

The Homesite insurance policy provided coverage for a claim or suit “brought against an 'insured' for damages because of 'bodily injury' or 'property damage' caused by an 'occurrence,'” defined as “an accident.”

The District Court's Decision

The district court granted Homesite's motion.

In its decision, the district court ruled that the assault as alleged by Waris could “not be characterized as an accident.” His allegations did “not present the degree of fortuity contemplated by the ordinary definition of 'accident' or its common judicial construction in this context,” according to the district court.

In the district court's opinion, the injuries allegedly sustained by Waris were not “unexpected” but, rather, were the “natural and expected result” of Neary's assault.

The district court acknowledged that Waris' complaint alleged claims against Neary for “negligence and recklessness,” “negligent infliction of emotional distress,” and “negligent failure to rescue,” but ruled that this characterization was “not controlling.” The district court reasoned that it was “well-established that artful pleading will not trigger an insurer's duty to defend.”

The district court was not persuaded by Waris' assertion that the attack had been caused by Neary's consumption of alcohol. It pointed out that Waris' complaint “merely allege[d] that Neary 'consumed alcohol' on the night of the assault” and contained no factual allegations to support an inference that Neary's voluntary intoxication rose to a level that rendered his actions accidental.

The district court added that there was no information regarding the amount Neary drank that evening, his blood alcohol content, or anything else about the degree to which Neary was impaired, if at all. There also was no allegation that Neary was in the midst of an alcoholic blackout or that he completely lost awareness of his actions when he attacked Waris. The “conclusory allegation” that Neary consumed alcohol, without more, was insufficient to trigger Homesite's duty to defend, the district court ruled.

The district court reached the same conclusion with respect to Waris' allegation that the assault by Neary had been caused by Neary's “pre-existing mental health issues,” finding that Waris' complaint contained “no factual support” for the allegation that Neary had any specific mental health issue that was so severe as to negate his ability to form general intent. Waris' “conclusory allegation” did not render the “violent criminal assault” by Neary an accident covered by the insurance policy, the district court said.

The district court concluded that the attack perpetrated by Neary on Waris as alleged in Waris' complaint was not an “occurrence,” that is, was not an accident, and, therefore, that Waris' claims against Neary were not covered by the Homesite policy.

The case is Homesite Insurance v. Neary.

Steven A. Meyerowitz is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. As FC&S legal director, Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.