An intentional act may not exclude insurance coverage if the damage caused by the act was unintentional

When an employee who is insured under the employer’s commercial liability policy commits an intentional act which results in unintentional harm, the policy’s exclusion clause excluding damage caused intentionally by or at the direction of the insured will not be engaged.

Mitsios v. Aviva Insurance Co. of Canada, [2008] O.J. No. 552, Ontario Superior Court of Justice, B.A. Allen J., February 19, 2008

This was an application by the Applicant for a declaration that the Respondent had a duty to defend him under a commercial liability policy in an action commenced against the Applicant by the Plaintiff. The Applicant and Plaintiff were employees of a grocery store. The Plaintiff alleged that the Applicant placed him in a headlock and caused him to slip and fall, causing permanent injuries and damages.

The Applicant asserted that he was an insured under the grocery store’s commercial liability policy. The Respondent argued that the Applicant’s acts were captured by an exclusion under the policy which purported to exclude bodily injury or property damage caused intentionally by or at the direction of the insured.

The Respondent further argued that it was not necessary for the court to find intent to cause injury in order to engage the exclusion clause. Rather, it was enough if the insured’s acts were intentional.

The Applicant countered by citing a related case – ING Insurance Co. of Canada v. Mitsios, [2007] O.J. No. 338, – with the same fact pattern where the court found that the exclusion clause has been interpreted by the courts to require that the injuries be intentionally caused.

In that case, the exclusion clause was under a homeowner’s policy and excluded “bodily injury or property damage by an intentional or criminal act or failure to act by any person insured by this policy.” The Court held that although the exclusion clause under the homeowner’s policy was different than the exclusion clause in the commercial liability policy in the case at bar, the reasoning was equally applicable. The Court found that a finding that the insured intended to cause the injuries was necessary to trigger the exclusion clause.

This case was originally summarized by W. Jay Havelaar and edited by David W. Pilley.

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