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A man who killed an intruder in his home in self-defense is not entitled to insurance defense in a wrongful death action, a divided Albany appellate panel ruled Thursday in a case of first impression. The split by New York’s Appellate Division, 3rd Department, in Automobile Co. of Hartford v. Cook, 97160, illustrates a debate that has divided courts across the country. The question is whether a homeowner’s insurance policy provides coverage when an insured is sued for wrongful death stemming from a killing in self-defense. That question was apparently addressed for the first time Thursday by a New York appellate court. Justice John A. Lahtinen and three of his four colleagues strictly construed the insurance policy language in holding that an occurrence of justifiable homicide results from an intentional rather than accidental act. Here, the defendant shot the decedent at close range with a 12-gauge shotgun. The action thus triggers the exception for incidents that are “expected or intended” by the insured, the panel found. But Presiding Justice Anthony V. Cardona dissented, distinguishing “defend” from “indemnify” and arguing that an insurance company has an obligation to provide a defense, at least until the point where it is determined that the allegedly wrongful death resulted from intentional rather than negligent conduct. “The cases across the country are split right down the middle,” said Albany appellate attorney Michael J. Hutter, who represented the insurance company. “But this is the first time it has ever been raised in New York. The Third Department took a very strict approach.” At the heart of the case is a money dispute between acquaintances Alfred S. Cook and Richard A. Barber. In 2002, Barber barged into Cook’s home. Cook shot and killed Barber, and was charged with murder. After an Albany County jury acquitted Cook, the Barber’s estate sued for wrongful death. Then, the Automobile Insurance Co. of Hartford, which provided Cook with homeowner’s insurance, sought a declaration that it had no duty to defend or indemnify. Albany Supreme Court Justice Edward Sheridan said the insurance company had a duty to provide Cook’s defense. Thursday, the 4-1 Third Department panel reversed. “The jury apparently concluded in the criminal case that the prosecution failed to prove beyond a reasonable doubt that the 120-pound Cook did not have legal justification for shooting the 360-pound decedent — who had previously attacked and injured Cook — after he refused to leave Cook’s home and approached Cook in a menacing way,” Lahtinen observed. Regardless, the majority held as a matter of law that Cook’s actions were not covered by the homeowner’s policy. “While he allegedly did not anticipate that the injury inflicted would result in death, the facts (and his admission) establish that he intended the result of a bodily injury,” Lahtinen wrote in an opinion joined by Justices D. Bruce Crew III, Edward O. Spain and Anthony T. Kane. In dissent, Cardona noted that “an insurer’s duty to defend its insured in pending litigation is exceptionally broad and far surpasses the insurer’s duty to ultimately indemnify in the event that the insured is found liable.” He said that duty should be alleviated only when “no plausible reading” of the allegations could “bring the contested events within the purview of the insurance policy at issue.” Here, Cardona said, Barber’s death could be viewed as an act of negligence rather than intentional conduct. “[A]lthough it might ultimately be determined that Cook’s liability to decedent’s estate, if any, is based upon his intentional conduct, thereby obviating plaintiff’s duty to indemnify Cook, I cannot conclude that this is the only possible outcome considering the allegations in the underlying complaint,” Cardona wrote. His reasoning follows that of state courts in West Virginia and Arizona. Courts in Michigan and Vermont have held that insurers are not obligated to defend or indemnify in self-defense cases. Robert P. Roche of Roche, Corrigan, McCoy & Bush in Albany argued for Cook. Benjamin F. Neidl of Tabner, Ryan & Keniry appeared for the estate. Roche said the ruling establishes a nonsensical distinction between holders of commercial policies and homeowner’s policies. He said that as a result of this decision, a shopkeeper who shoots a thief is covered because he helped prevent a crime on the property. But a homeowner, Roche said, is not similarly covered. “A commercial policy allows the holder to protect either his employees from being assault or to prevent the commission of a crime upon his property by using force up to and including deathly physical force, and he is covered,” Roche said. “But a homeowner is not. Here is a man who stood trial and 12 of his peers said ‘not guilty.’ He acted properly and in a manner dictated by circumstances over which he had no control.” Roche said he will seek leave to appeal to the state Court of Appeals.

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