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  • WisBar News
    December 13, 2013

    Intentional Injury Exclusion Does Not Bar Coverage for Reckless Driver

    Dec. 13, 2013 – The insurer for a man who caused a car crash while fleeing police at 90 mph must pay his liability bills in a personal injury case, a state appeals court has ruled, concluding the man did not intend to cause injury when he drove recklessly.

    Michael Parks was driving his BMW at a speed of 60 mph in a 25-mph-zone when he passed a police car in the city of Jefferson. When Parks saw police in pursuit, he sped up to 90 mph and tried to lose the officer by weaving through traffic on a two-lane road.

    He lost control after passing a semi and hit an oncoming car containing Gregory and Heather Fetherston, who ultimately brought a personal injury suit against Parks and his insurer, American Family Insurance. American Family argued that Parks was not covered for any injury liability, citing an “intentional injury exclusion” clause.

    A clause in Parks’ insurance policy excluded coverage for bodily injury or property damage “caused intentionally by, or at the direction of, and substantially certain to follow from the act of an insured person.” American Family said Parks intended to drive recklessly and his reckless driving was “substantially certain to cause injury.”

    The circuit court agreed, but in Fetherston v. American Family Ins. Co., 2012AP1920 (Dec. 12, 2013), a three-judge panel for the District IV Court of Appeals reversed.

    The exclusion only applies if the insured person intends to cause the injury and harm is substantially certain to result from the intentional conduct, the panel explained.

    That is, there must be both subjective and objective intent. Parks may have intended to evade police, but he did not intend to cause injury to the Fetherstons, the panel ruled:

    “Because it is undisputed that Parks did not intend to injure the Fetherstons when he operated his vehicle in a reckless manner, and because the insurance policy exclusion at issue here requires such intent in order to bar coverage, we conclude that the exclusion does not bar coverage for the injuries suffered by the Fetherstons.”

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