Your insured’s eighteen-wheeler is struck head-on by another vehicle travelling at a high rate of speed, resulting in significant medical expenses to your insured driver and a passenger, as well as considerable property damage to your insured’s vehicle. The tortfeasor died instantly. Subrogation efforts reveal adequate liability coverage for the responsible driver and you present your subrogation demand. A denial of coverage by the third-party liability carrier reveals that the tortfeasor left a suicide note and was distraught and under psychiatric care at the time of the accident. The liability carrier denies coverage, claiming that the deceased tortfeasor “targeted” your insured tractor-trailer in order to commit suicide and that their auto policy provides liability coverage for an “accident” – an incident that is both unexpected and unintended. You close your subrogation file. But, you may have closed it too soon.
Suicide by automobile is on the rise. While the real percentage of suicides among car accidents is not reliably known, because it often requires looking into the mind and intent of somebody who isn’t alive to enlighten us on those issues, studies by suicide researchers astonishingly reveal that “vehicular fatalities that are suicides vary from 1.6% to 5%.” Of all those who attempt suicide in this fashion, 8.3% (13.3% of male attempters) had previously attempted via motor vehicle collision and failed. States have begun approaching the issue of liability coverage in the case of vehicular suicide in a variety of ways, and it is worth understanding how the jurisdiction you are subrogating in handles such issues before you give up on significant subrogation dollars. The same holds true for other innocent victims of vehicular suicide. Know the law before you raise the white flag and accept a denial of coverage without a fight.
Every auto insurance policy provides for liability coverage. Liability coverage covers an individual when that person causes injury or damage as a result of a car accident. But, most policies boast a coverage exception for incidents caused by the “intentional acts of the insured.” Many auto insurance policies have “intentional damage” that relieves the carrier from paying out on any claims where the driver intentionally caused damage to his or her or another person’s vehicle. The public policy of such terms is obvious – to prevent people from purposefully causing accidents just to collect a payout.
Let’s start with the premise that, contrary to what most people assume, a general liability policy does not exclude “intentional acts.” Bodily Injury and Property Damage Liability coverage excludes “intentional injury.” There is a difference. An exclusion entitled Expected or Intended Injury negates coverage for injury or damage that an insured inflicts on someone willfully. The expected or intended injury exclusion applies to injury or damage that is expected or intended from the standpoint of the insured. It will be very difficult for the liability carrier to prove that the individual who committed suicide expected or intended to cause injury to the other driver. In fact, most people completely lack an understanding of the biomechanics involved when striking a tractor trailer, and some assume that the occupants will escape injury because of the size of the vehicle in relation to the automobile that struck them.
Notwithstanding the above, most auto liability carriers will typically deny the resulting claims flowing from vehicular suicide based on the “intentional damage” exception. Yet, many questions are raised, and subrogation claims shouldn’t be abandoned until they are all answered. What criteria can be used to determine whether suicide was the intent? How can death by automobile crash be determined a suicide? The liability carrier will have the burden to prove an intentional act. Suicidal intent must be proven. That is often easier said, than done. Most cases don’t involve the convenience of a suicide note.
Courts across the country are not consistent on the issue. In South Carolina, for example, S.C. Code Ann. § 38-77-140 requires any auto policy to insure against “loss from liability imposed by law” for damages arising out of the use of a covered motor vehicle. In South Carolina Farm Bureau v. Mumford, 382 S.E.2d 11 (S.C. App. 1989), the court held that this statute mandated coverage, even for intentional acts. The statute resulted in coverage where an insured deliberately crashed his vehicle into a truck in an attempt to commit suicide, even though policy contained the aforementioned exclusion for intentional injury or property damage.
In Minnesota, the Court of Appeals has held that, where a motorist drove into the path of an oncoming truck to commit suicide, as a matter of first impression, the insurance policy term “accident” was to be viewed from the perspective of the insured motorist (person attempting suicide), and suicide attempt was not an “accident” for purposes of third-party liability insurance coverage. Nygaard v. State Farm Ins. Co., 591 N.W.2d 738 (Minn. App. 1999). Because the collision was neither unexpected nor unintended from the decedent’s perspective, it was not an accident, and there was no coverage. A vigorous dissent argued to the contrary.
In North Dakota, a husband purchased motor vehicle insurance and was the “named insured.” Grinnell Mut. Reinsurance Co. v. Thompson, 778 N.W.2d 526 (N.D. 2010). The policy extended the term “insured” to include any family member using the vehicle. The policy also contained language which excluded coverage for intentionally-caused injuries or when using the vehicle without a reasonable belief that the “insured” is entitled to do so. The wife intentionally drove the car into an oncoming truck. She later told the authorities and her doctors that she intended to commit suicide. The carrier filed a declaratory judgment action seeking a declaration that they were not obligated to provide coverage because the attempted suicide was an intentionally-caused injury. The truck driver’s employer claimed that the wife’s insurer was required to provide the minimum liability limits imposed by N.D.C.C. § 39-16.1-11 regardless of whether the injury was intentionally caused because she is considered an “insured” by being a family member. In this case, the wife drove the vehicle without permission of the named insured with no reasonable belief that she would be entitled to do so.
The court held that North Dakota imposes a minimum level of coverage for the named insured and “any other person, as insured, using such motor vehicle with the express or implied permission of such named insured. The wife was neither a named insured nor a person with expressed or implied permission to use the vehicle to commit suicide. Therefore, the minimum coverage required is not necessary and the language of the policy controls, excluding coverage for the attempted suicide. However, the attempted argument in favor of coverage might work if the person attempting suicide had express or implied permission to use the vehicle.
In Montana, an insured was deemed to have committed suicide by driving into oncoming traffic. Transamerica Ins. Co. v. Cannon-Lowden Co., 400 F.Supp. 817 (D.C. Mont. 1975). The evidence used to determine if it was a suicide included her speed in excess of 60 miles per hour, and driving out of her lane of traffic directly into the path of the tractor trailer. A special verdict determined that the death was a suicide. As to coverage, the court held that the willful act exception to liability applied even though there was no intent to cause damage to the tractor trailer or its occupants. Montana determined that if an insured intentionally commits an act which will almost certainly cause damage, exclusionary clauses using the words “expected” and “intentional” will apply even though there was no purposeful intent to cause the damage. The Montana court held that the policy did not cover the insured’s liability because the acts were expected and intentional. The risk of damage was so certain to follow the act done that it can be said as a matter of law that the damages were intended or expected, and the exclusionary language is effective.
A New Jersey Superior Court has specifically ruled that intentional act clauses in automobile insurance are consistent and valid with public policy. In Hammer v. Thomas, 1 A.3d 784 (N.J. Super. 2010),Thomas was driving his car after an argument with his parents about whether he took his medication or not. He was recklessly driving 15 miles per hour over the speed limit while it was dark and rainy. When he saw a car approach from the other direction, he let go of the wheel striking the car. He told the state trooper about the argument with his parents and admitted he wanted to “end it all.” The trooper wrote in his report that it was a suicide attempt. Thomas later denied making any statements to the trooper, and a doctor determined he was not suicidal before the accident. Thomas claimed that the injuries caused were due to his reckless driving and that he did not intend to kill himself. The Court wrestled with whether the plaintiff’s injury was a probable consequence of the defendant’s suicidal actions. The court held that there was a sufficient demonstration of Thomas’ subjective intent to cause some degree of injury. It did not wish to guess whether Thomas’ intent was to commit suicide or not. Rather, they worked with the undisputed facts in order to determine if there was an inherently probable consequence of causing injury. The court addressed the doctor’s finding that Thomas was not suicidal by saying “Even if Thomas did not intend to kill himself by letting go of the wheel, the record reflects that he did intend to crash his car into Hammer’s.”
When facing a possible liability coverage defense stemming from an allegation of suicide and intentional actions, claims and subrogation professionals should become familiar with the law of the jurisdiction they are in, and cobble together an argument that will put pressure on the liability carrier to provide coverage for some or all of the injuries and damage. For more questions on subrogation of all lines of insurance, contact Gary Wickert at gwickert@mwl-law.com.
