Unitrin Auto and Home Ins. Co. v. Sullivan

NON-JURY TRIAL DETERMINATION AND JUDGMENT Upon review of the court’s computerized records, the decision of the Appellate Division dated January 22, 2020, the order of this Court dated March 8, 2021 which struck the jury demand of defendant, George A. Ciminello (motion #005) and denied the motion (#006) for summary judgment by defendant, George A. Ciminello, the So-Ordered Stipulation and Joint Pre-Trial Order, dated January 24, 2022, which set forth Exhibits a through q, Plaintiff’s Exhibit #1, dated January 26, 2022 (portions of the Record on Appeal), the So-Ordered Stipulation dated February 10, 2022, which included three additional Exhibits (r, s, t) and the Pre-Trial and Post-Trial Briefs of the respective parties, the Court offers the following, in support of the conclusions of the non-jury trial determination. Introduction Can an intentional tort, that is, a battery, be considered as an “accident” for purposes of a Homeowners Insurance Policy? More to the point, can the use of a 7-Eleven Big Gulp cup, filled with urine, which is either thrown, pushed, “tossed” or has “slipped” from the hand of a passenger in a vehicle traveling 30 — 40 miles an hour, which strikes the eye of an innocent person who is walking home from a movie theater, causing bodily harm, be deemed to be a covered event under the terms of an Insurance Policy? The question is not a theoretical one; in an underlying personal injury damages trial, a jury awarded $3.6 million in damages, including punitive damages, for the conceded liability cause of action. To date, that verdict now totals over $6 million, including interest. The tortured motives and actions of the offending participants to this controversy are similarly reflected in the long and tortured history of the underlying personal injury action and this Declaratory Judgment action. The procedural history will be detailed below. For purposes of ease of description, the various parties will be identified by their last name. This incident occurred on July 29, 2005 and was tried before a civil jury in January of 2016, based upon the Second Cause of Action of the underlying civil action’s Second Amended Verified Complaint (Index No. 21023/2005) (Pl. Exhibit 1). The pleading describes the incident as “willful, wanton and intentional acts” and which “acts complained of herein constitute intentional harm.” Now, seventeen years after the incident, the events are sought to be portrayed as an “accident”, in order to afford insurance coverage. That was not always the way the Courts portrayed this event. In fact, the Second Department (65 AD3d 1002, Sept. 8, 2009), in affirming the Order of then Justice Robert Doyle, dated March 17, 2008, which had dismissed the single cause of action for negligence, described the incident as Ciminello [the victim] having been “struck by a cup thrown from a moving vehicle.” Likewise, the Court noted Ciminello’s “injury was caused by the throwing of the cup and did not arise out of the use or operation of the vehicle.” The Second Department concluded that “[o]nce intentional offensive contact has been established, the actor is liable for battery, not negligence (citation omitted).” When counsel for Ciminello sought to serve a second amended complaint, the Second Department (120 AD3d 1176, Sept. 10, 2014) only permitted a cause of action to recover damages sounding in intentional tort. The Court agreed “that the causes of action in the second amended complaint sounding in negligence were palpably insufficient and patently devoid of merit (citing its prior Order).” Finally, in a prior appeal in this declaratory judgment action, the Second Department (179 AD3d 970, January 22, 2020), stated that the victim was “struck by a cup thrown out of a window of a vehicle operated by Sullivan.” The Appellate Division noted Unitrin’s prima facie entitlement to judgment of no coverage on it submission that “the claim did not arise out of an accident but was the result of Sullivan’s intentional act (citations omitted).” However, the Court found that “Ciminello raised a triable issue of fact as to whether the harm was inherent in the intentional act committed (citations omitted).” The Court concluded that “there is a triable issue of fact as to whether the event qualifies as an ‘accident,’ as defined by the policy (citations omitted).” At the time of the civil jury trial, eleven years after the incident, testimony was offered that Robert Harford, the passenger holding the cup of urine, while intending to empty the contents of the cup onto Ciminello as they drove by, had no intention to hit him in the face with the cup itself, but the cup slipped out of Harford’s hand.¹ The Appellate Division determined that such testimony created an issue of fact, necessitating a trial on the issues set forth above. Procedural History Familiarity with this Court’s Order dated January 4, 2016 and the Appellate Division, Second Department Decision & Order dated January 22, 2020 is presumed, for a complete presentment of the factual and historical background of this special proceeding. Simply, this Court had previously held that the underlying incident was an intentional act in the 2016 Order. Based on that finding, this Court held that coverage was not available and declared that the plaintiff was not obligated to indemnify Brian C. Sullivan in a related personal injury action entitled Ciminello v. Sullivan (Sup Ct, Suffolk County, Index No. 05-21023). Defendant Ciminello appealed and by the above-mentioned Decision and Order, the Second Department reversed, for the reasons set forth above. Additionally, the appellate court further found that this case “does not fall within the narrow class of cases in which the intentional act exclusion applies” so “there is a triable issue of fact as to whether the event qualified as an ‘accident,’ as defined by the policy (citations omitted).” As this Court noted in its Order of January 4, 2016, the issue here is one of policy coverage, not exclusion, which would require a timely and prompt disclaimer. Such is based upon the consistent caselaw that explains that, in such circumstances, it is the burden “to establish that the injury complained of falls outside the coverage of the policy or is exempted by reason of an exclusionary clause” (Smith Jean, Inc. v. Royal Globe Ins. Cos., 139 AD2d 503, 504 [2d Dept 1988]; accord Seaboard Sur. Co. v. Gillette Co., 64 NY2d 304 [1984]). The Second Department has determined that the issue to be tried is one of coverage and not one of policy exclusion. This Court must concern itself with the triable issue as to whether the underlying event qualifies as an “accident” under the policy in order to afford coverage. It must be decided if the claim falls outside the scope of the policy’s coverage in the first instance (see Matter of Worchester Ins. Co. v. Bettenhauser, 95 NY2d 185, 188 [2000]; see also Matter of Hartford Acc. & Indem. Co. v. Dellegrazie, 190 AD3d 855 [2d Dept 2021]). The triable issue here is — was this policy written to provide coverage for this incident? The Court will be guided by the opinion of Judge Cardozo in Messersmith v. American Fid. Co., 232 NY 161 (1921) and the issue will be “determined by the quality and purpose of the transaction as a whole” (id. at 166). Yet, it must also be noted that Judge Cardozo suggested in a death by sunstroke case, Lansress v. Phoenix Mut. Life Ins. Co., 291 US 491, 499 (1934) (dissent): “‘in the strictest sense and dealing with the region of physical nature there is no such thing as an accident’” (citation omitted). Facts in the Record the Court Relied Upon The defendants Brian C. Sullivan, Gerard E. Sullivan, Robert Harford and Patricia Harford defaulted in answering the complaint. Only the defendant, George A. Ciminello joined issue in this action. The parties have determined and jointly stipulated to having this Court review over two thousand pages of depositions, trial transcripts, medical records, a prior Record on Appeal, Pre-Hearing and Post-Hearing Briefs and a three-hour presentation by both parties, held on January 26, 2022, in place of an actual non-jury trial. The Court agreed, although such a procedure eliminated the one deference appellate courts grant in a closed case to the non-jury trial court, that is, that the trial court would have had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492 [1983]; Bank of America, N.A. v. Bloom, 2022 WL 385940 [2d Dept 2022]). As a result, with the tremendous break in time from the date of the event, July 29, 2005, until the damages trial in January of 2016, the Court has decided to rely more heavily upon the deposition testimony and the medical records which occurred or were created closer in time to the actual event and when memories would be fresher. The Court will first examine the deposition testimony of the insured, Brian C. Sullivan, which took place on January 15, 2007, a year and a half after the event (see Exhibit a. of the Joint Stipulation). A three page document, that was signed by Sullivan the night of the incident before Detective Steward and reviewed before the deposition is mentioned, but is not a part of this record. Sullivan explained that a group of friends first spent time at the Harford home before going to dinner at the Suffolk Diner on Route 25 in Centereach. At the Diner, a plan was hatched to throw a cup of urine on a stranger from Sullivan’s car. “Bob brought up the idea of peeing in a cup and throwing it at somebody” (p. 55, l. 24-25). The plan was to soak someone with urine (p. 58, l. 20). He explained that not everyone at the Diner took part in the incident and some decided to go home. No one consumed alcohol or narcotics (pp. 64-65). Sullivan, with three others in his car, including Harford in the backseat, drove to a nearby 7-Eleven, where large soft plastic Big Gulp fountain drinks were purchased by him and Harford (p. 65, l. 7-17). After driving around consuming the drinks, Sullivan pulled over to allow Harford to urinate into his Big Gulp cup (p.72, l. 9). Back in the car, while driving on Portion Road, two potential victims were spotted walking on the shoulder of the road (p. 75, l. 22-24). As the car approached from the rear, “Bob Harford leaned out the window with a lifeguard whistle and blew the whistle” (p. 78, l. 15-16). After passing the walking couple, Sullivan testified that Harford said, “Let’s throw the urine at these people” (p. 79, l. 16-17). After driving for a minute, Sullivan turned his vehicle around but now the two strangers had crossed the road and were now walking on the shoulder of the south side of the road, facing the oncoming Sullivan vehicle (p. 85, l. 3-21). As they approached, “Bob said, ‘Let’s throw the urine at them’” (p. 86, l. 10-11). There was no specific plan as to how to do it (pp. 86-87). The couple was walking close to the white line as the Sullivan vehicle approached (p. 87, l. 15-18). Sullivan testified that he pulled his car right to the white line (p. 89, l. 10-24). Sullivan claimed that his car was 10 feet away from the victim (p. 92, l. 10-15), after stating that the victim was walking in the middle of the 10 foot shoulder. At the moment of impact, Sullivan had looked forward and then looked into his side view mirror to see Harford’s arm and head out of the window, but he could not see his right hand which held the cup (p. 97, l. 20-22). Sullivan said he heard the impact and it sounded like a splash (p. 100, l. 11-12). He did not actually see the contact (p. 101, l. 18-20). After the contact, there was just laughing from everyone in his vehicle (p. 102, l. 12-16). “Oh that was so funny” (p. 103, l. 2). He turned the car around once again, to see what happened (p. 103, l. 6-25). While driving around for half an hour, Harford said “that he saw the cup hit the kid in the face” (p. 105, l. 20-21). Harford said “he let go of it (the cup)” (p. 106, l. 2). Sullivan repeatedly testified that Harford said he let go of the cup (p. 106). When questioned as to whether Harford threw the cup hard, soft, or medium, Sullivan responded, “He said soft. He said it was like a toss. It wasn’t — it wasn’t a blatant throw” (p. 106, l. 20-23). After half an hour, they decided to go home and as they passed the scene of the incident they saw numerous police cars and heard someone yell, “That’s them” (p. 108, l. 22). Instead of stopping, Sullivan kept driving (p. 109, l. 24). Sullivan made a right-hand turn to a back street and then a left-hand turn, but by then he noticed police cars behind him, with lights flashing (p. 112, l. 15-18). When questioned by the responding police officer “Did you guys throw a cup of urine at somebody tonight?” (P. 116, l. 24-25), Sullivan responded, “Yes” (p. 117, l. 3). Finally, when Sullivan called his mother from the police station he said (p. 121, l. 4-8): “I had told her that we threw a cup of urine at somebody and that we had been picked up by the police and arrested, that Bob and I were at the police station and we were being arraigned later that day.” That is the earliest testimony of the insured, closest in time to the event. The victim, George Ciminello, testified at his deposition on November 10, 2006, a little more than a year after the incident (see Exhibit c. of the Joint Stipulation). Much of his testimony tracked that of Sullivan. He stated that he was walking on Portion Road, with a female friend, coming from the Regal Cinema (p. 7, l. 10). While walking, they heard “a loud pitch whistle” (p. 15, l. 4-6). They then crossed to the opposite side of the road. At a point, due to commercial businesses, there was no sidewalk, so he walked along the curb line (p. 17; p. 20, l. 11). He described the incident as follows (p. 18, l. 22-24): “As I was walking, I noticed in front of my face was a white Caucasian arm, a white sleeve, a white object with fingertips at the end of it.” Critically, when asked what made contact with his face, he said, “The cup and the arm” (p. 20, l. 19). He said that he saw the cup and the arm make contact with him (p. 20, l. 20-22). He never saw the cup leave the hand at any time before the contact (p. 20, l. 23-25, p. 21, l. 2). He was hit on the left side of his face, the bridge of his nose and under his right eye (p. 21, l. 24-5). His nose immediately started bleeding (p. 22, l. 8-10). He stated that he saw the cup again when it was brought over to him as he was sitting on a McDonald’s bench (p. 22, l. 20-25). His whole face was numb (p. 23, l. 16) and the friend had to walk him over to the bench (p. 24, l. 8). He told the ambulance EMT that his eyes were burning and that he could not open them (p. 26, l. 6-7). His eyes needed to be flushed out. He again stated that he never saw the person let go of the cup (p. 26, l. 21-23). He explained that the friend picked up the cup which he saw ten minutes after the incident (p. 31), which was “splinted and cut into pieces” (p. 31, l. 22). At Stony Brook Hospital he could still not open his left eye, his right eye was still burning and his nose was still hurting (p. 41, l. 10-13). When he saw his family doctor the next day, he still could not open his left eye and his right eye was still burning (p.46, l.10-11). He saw that doctor again in March of 2006 for headaches, which were becoming constant (p. 47-48). He immediately saw an eye specialist who told him there was hemorrhaging in the back of the left eye, that there was a split in the nerve for his central vision and there would be no central vision in that eye (p. 51). On that first visit, he was told there was no correction for his vision (p. 52, l. 5-9). A second opinion with another specialist confirmed that he would not have central vision (p. 57, l. 24-25, p. 58, l. 2-3). Next, the Court will review the contemporaneous medical records, which recorded Ciminello’s description of the event. The medical records of Stony Brook University Hospital, Exhibit h.), repeatedly state “someone throwing ‘a cup of urine’ @ him while walking home” (p. 4), and “a cup Thrown to face” (p. 5), and on the ambulance EMT Pre-Hospital Care Report, on page 8 of the exhibit, one finds, under the EMT’s subjective assessment box, “someone threw a cup of piss at me.” The medical records from North Shore Eye Care (Exhibit i.), show that upon examination the same day as the incident, the doctor reports, “Apparently, he was hit in the left eye by something thrown from a moving car” (p. 5, report dated July 29, 2005). The follow-up report, dated August 9, 2005, at page 6, states, “Mr. Ciminello informed me he was struck in the left eye with an objet held by a passenger in a moving car.” The medical report of Dr. Pamela Weber, dated January 26, 2008 (Exhibit j.), detailing on her examination of October 4, 2005, describes the reported assault. “He was hit in the left eye by an arm extended from a passing car. The passenger was holding a large 7 Eleven cup which was full of urine.” She reports that the “severe blunt trauma in the left eye…led to a choroidal rupture through fixation in his macula.” Finally, the Independent Medical Examination report from Dr. Stephen Greenberg, dated February 13, 2007 (Exhibit k.), records the History as “he was walking on a road and was struck in the left eye with a large (at least 16-ounce) container of what appears to be urine, which was pushed directly into his eye from an occupant of a moving vehicle.” The deposition of Robert Harford took place on February 23, 2007 (Exhibit b.), 18 months after the event. His recitation of events mirrors that of Sullivan, with some important and key differences. He admits the get-together at his home of various friends and the trip to the Diner. He denies knowledge of who came up with the plan which he described as “to urinate into a cup and splash the urine on somebody” (p. 47, l. 16-17). He admits that no one else urinated into their cups (p. 54, l. 9-11). He also admitted to blowing his whistle at the victim (p. 59, l. 7-9). In response to leading questions, he states it was not his intention to physically harm somebody (p. 62, l. 12-15). He described the shoulder lane of the road as only about 2 feet (p. 65, l. 20). Ciminello was only about a foot from the curb as the vehicle approached (p. 68, l. 9-11). Sullivan drove the vehicle even closer to Ciminello, to facilitate Harford’s actions (p. 68, l. 15-23). As the vehicle approached, Harford lifted off the seat (p. 71, l. 10-13). The Sullivan vehicle crossed into the shoulder, “a foot, halfway” (p. 72, l. 13-25). Harford was only a couple of feet from Ciminello at the time (p. 73, l. 9-13). Harford observed the cup contact Ciminello (p. 74, l. 16-19). In response to the question if he threw the cup, he first said, “I did, but it slipped,” (p. 74, l. 25 — p. 75, l. 2). He then repeated three times that the cup slipped out of his hand (p. 75). With regard to the arm motion he made, it was not an overhand throw but a side arm throw (p. 75, l. 16-25). Later, upon returning to Portion Road, he heard the girl yell, “That’s them” (p. 82, l. 7-10). When questioned by other counsel, he repeated that the cup left his hand before it struck Ciminello (p. 96, l. 12-15) and that it traveled “2, 3 feet” (p. 96, l. 16-19). Finally, he estimated the speed of the Sullivan vehicle at about 40 miles an hour (p. 101, l. 3-5). As explained above, the civil damages trial took place in January of 2016 (Pastoressa, J.), eleven years after the incident. The Sullivan testimony (Exhibit g.), after some encouragement, echoed the deposition testimony and he repeated the statement from Harford that “I think he said the cup hit him in the face” (p. 7, l. 19). He was also forced to admit that everyone was laughing about the incident (p. 10, l. 3-4) and that he previously testified that Harford said that he let go of the cup (p. 12, l. 2-5). Finally, he stated that he never thought of the possibility that someone would get hurt (p. 13, l. 4-8) and that it was not his intention that someone would get hurt (p. 14, l. 24-25, p. 15, l.1). The trial testimony of Ciminello, on January 12, 2016 (Exhibit d.) reflects his belief that the cup and hand were pushed into his face. “I was talking to Jess and the next thing I know there was a figure in front of me and I got hit in the face. I saw the white cup fingertips” (p. 24, l. 5-7). He described the pain and noted that there was lot of blood. He commented on the vehicle “still circling us” as it came back, for the third time, after the initial striking of him and the laughing he heard (p. 31, l. 15-21). He described how scared he was at that time. “Scared. I didn’t know their intention. I couldn’t see anything. At that point it was all left up to Jessica to be my eyesight” (p. 31, l. 25, p. 32, l. 1-2). He described the bruising over his left eye, across his nose and under his right eye (p. 34, l. 12-13). He spoke about the permanent damage to his left eye, his headaches and the need to wear sunglasses while working on a computer. Ciminello’s expert ophthalmology witness (Exhibit e.) testified to the extent of the damage to the left eye, that is, damage to the optic nerve and a rupture in the choroid underneath the macula of the left eye (p. 90, l. 1-3) and damage to the central portion of the back of the eye (p. 91, l. 8-10). The final trial testimony that was offered was that of Harford, taken on January 12, 2016 (Exhibit f.). He again stated that “as the car came in I lost grip of the cup, the cup exited my hand and then struck him in the face.…It was never my intention to hurt anybody” (p. 110, l. 19-24). The actual impact is now described as follows (p. 111, l. 9-19): Q. Okay. So 30, 40 miles per hour, your hands outside the car and the cup comes into contact with his face. A. Correct. Q. Right. Was your hand still attached to that cup as it came into contact with his face? A. No, sir. I don’t believe so. Q. You don’t believe so. A. I don’t believe so. Q. There’s a chance that it could have been though. Correct? MR. GRIFFIN: Objection. THE COURT: Sustained. The jury returned a damages and punitive verdict totaling $3.6 million (Exhibit m.). A judgment was entered (Exhibit l.) in the total sum of $6,022,263.76, which includes $2,421,563.76 as interest from October 7, 2009, the date of filing of the second amended summons and complaint. Controlling Caselaw The inquiry is whether an “occurrence” is involved that gives rise to policy coverage. The policy defines an “occurrence” to include injuries resulting from an “accident.” As mentioned above, this is not a policy exclusion case. This Court will not consider the caselaw that examines the “expected or intended” policy exclusion, that is, the intentional act exclusion — the sole function of this Court is to determine whether the event qualifies as an “accident,” as defined by the policy. The court must look at the transaction as a whole in determining whether an accident has occurred (see McGoarty v. Great Amer. Ins. Co., 36 NY2d 358, 364 [1975]). In deciding whether a loss is the result of an accident, the loss is to be viewed from the point of view of the insured (see Miller v. Continental Ins. Co., 40 NY2d 675, 677 [1976] ["'it is customary to look at the causalty [sic] from the point of view of the insured, to see whether or not, from his point of view, it was unexpected, unusual and unforeseen’” (at 677, quoting 1A Appleman, Insurance Law & Practice sec. 391, at 22)]). The definitions of battery and assault are set forth in detail by the Second Department in Gabriel v. Scheriff, 115 AD3d 791 (2d Dept 2014). There is no doubt that on July 29, 2005, the bodily contact was offensive and that there was an intention to make such contact without the consent of Ciminello. Any reasonable person would find the bodily contact offensive. Moreover, the physical conduct of Harford placed Ciminello “in imminent apprehension of harmful contact” (Fugazy v. Corbetta, 34 AD3d 728, 729 [2d Dept 2006] [internal quotation marks omitted]). Unitrin argues that its policy does not provide coverage because the victim’s injuries were the result of the insured’s intentional act, not an accident. Ciminello now argues, contrary to the pleading upon which liability was granted and his testimony at the deposition, that the injuries he received from Unitrin’s insured were the unexpected result of an intended act. Certain basic elements must be reviewed. Under an insurance contract, the term “occurrence” is not ambiguous, because such contracts are intended for a “fortuitous event,” as opposed to an intended act (see Insurance Law 1101[a][2] ["…any occurrence…which is…to be, to a substantial extent beyond the control of either party"]). As noted in Messersmith, at 165, supra, under an insurance contract the fundamental principle is “that no one shall be permitted to take advantage of his own wrong.” The term “accident” is construed “in accordance with its understanding by the average [person]…who, of course, relates it to the factual context in which it is used” (Michaels v. City of Buffalo, 85 NY2d 754, 757 [1995] [internal citations omitted]). “New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently” (Salimbene v. Merchants Mut. Ins. Co., 217 AD2d 991, 994 [4th Dept 1995] [internal quotation marks omitted]; appeal withdrawn 88 NY2d 979 [1996]; see also Allstate Ins. Co. v. Schimmel, 22 AD3d 616 [2d Dept 2005]; Smith v. County of Erie, 295 AD2d 1010 [4th Dept. 2002]; Jacobs v. Aetna Cas. and Sur. Co., 216 AD2d 942 [4th Dept 1995]; Monter v. CNA Ins. Cos., 202 AD2d 405 [2d Dept 1994]). The question is whether the damages “flow directly and immediately from an intended act, thereby precluding coverage”, or whether the damages “accidentally arise out of a chain of unintended though expected or foreseeable events that occurred after an intentional act” (Continental Ins. Co. v. Colangione, 107 AD2d 978, 979 [3d Dept 1985]). “[M]ore than a causal connection between the intentional act and the resultant harm is required to prove that the harm was intended” (Allstate Ins. Co. v. Mugavero, 79 NY2d 153, 160 [1992]). While the Mugavero case is centered on an “intentionally caused” policy exclusion, and the narrow class of cases in which such an exclusion applies regardless of the insured’s subjective intent, the case is often used by courts to discuss cases where an intent to injure is inferable from the very nature of the act (see Unitrin Auto and Home Ins. Co. v. Sullivan, 179 AD3d 970, 971[2d Dept 2020]; Allstate Ins. Co. v. Schimmel, supra; Rinaldi v. Wakman, 183 AD3d 652 [2d Dept 2020]; Ciminello v. Sullivan, 65 AD3d 1002 [2d Dept 2009]; Pistolesi v. Nationwide Mut. Fire Ins. Co., 223 AD2d 94 [3d Dept 1996]; Travelers Ins. Companies v. Stanton, 223 AD2d 104 [3d Dept 1996]; Monter v. CNA Ins. Cos., supra). It must be remembered that there is no cause of action in New York to recover damages for negligent assault (see Schetzen v. Robotsis, 273 AD2d 220 [2d Dept 2000]; Mazzaferro v. Albany Motel Enters., 127 AD2d 374, 376 [3d Dept 1987]). It is wrong to advance arguments and cases, as Ciminello’s counsel does, that seek indemnity for unintentional injuries resulting from intentional acts (see Public Serv. Mut. Ins. Co. v. Goldbarb, 53 NY2d 392, 399 [1981]), for these are policy exclusion cases that seek to avoid the consequences of the language of the policy exclusion (see, e.g., Kemper Indep. Ins. Co. v. Ellis, 128 AD3d 1529, 1531 [4th Dept 2015] [negligent operation of a motor vehicle but explanation that a dog jumped into driver's lap]; Medrano v. State Farm Fire & Cas. Co., 54 AD3d 662 [2d Dept 2008] [student throwing a garbage can into the air without a target]; Baldinger v. Consolidated Mut. Ins. Co., 15 AD2d 526 [2d Dept 1961], affd 11 NY2d 1026 [1962] [insured intended an offensive contact to force another person to leave, but did not intend the physical injuries that resulted from the physical contact, as seen by the average person]). Conclusions of the Factfinder This declaratory judgment action is an equitable action, seeking specific enforcement under an insurance policy. All that is sought is a declaration that coverage either does not or does apply to the facts of this controversy. It is to be noted that Ciminello is not an insured under the policy and the actual insured, Sullivan, is in default of this action, as is Harford. Here, the jury verdict on damages was based upon the conceded intentional act cause of action of the second amended complaint. Assault was the theory of liability. That is how the case was presented to the jury. Based upon the evidence, punitive damages were awarded. It is undisputed that Sullivan and Harford intended to assault Ciminello with the cup of urine. Ciminello was the victim of an unprovoked assault. The consequences of what would easily be deemed to be work-place violence, should, on these facts, similarly apply to the violent actions that occurred on Portion Road in 2005. As the trier of the facts, set forth in the above record and gleaning credibility directly from the words of the parties involved, this Court, as the fact finder, concludes that it was Harford’s intention, as the vehicle driven by the insured was traveling at the speed of 40 miles an hour, to strike the Big Gulp cup directly into the face of Ciminello. 1). The Court finds that the striking of Ciminello with the cup was done with the intention of inflicting offensive bodily contact upon Ciminello and thus, an assault was committed regardless of whether there was actual intent to inflict injury. 2). The Court finds that the injuries were the direct and immediate result of the intentional act. 3). The Court finds that Harford’s actions were intrinsically intentional and therefore excluded from coverage, as not an “occurrence” under the policy. 4). The Court finds that the injuries did not arise out of a chain of unintended though foreseeable events that occurred after the intentional act. 5). The Court finds and rejects the claim that the injuries suffered were the accidental result of intentional acts. 6). The Court finds that an ordinary person would not construe this event as an “accident” in any sense of the word. 7). Finally, the injuries Ciminello sustained were inherent in the activity Harford engaged in, and Harford’s assault cannot be construed as an accident within the definition of “occurrence” for which Unitrin’s policy affords coverage. The scheme, as offered from Sullivan at his deposition, was the “peeing into a cup and throwing it at someone.” Harford even admitted, to Sullivan, tossing the cup. Sullivan’s car circled the victim, like a hunter circling a prey, three times, the first time announcing their desire by blowing a whistle at the two potential victims. The car, speeding at 40 miles an hour, came within two feet of the victim, by crossing into the shoulder of the road. The arm and the cup were extended and struck into the face of the victim, as Ciminello testified to and reported on various medical records. Sullivan even admits to his mother that they threw a cup in the face of the victim. There is no doubt, that Sullivan and Harford intended to hit the victim in the face with the cup. There was no discussion in the vehicle at the time that a mistake occurred or that any remorse was expressed for contacting the victim in the face, just overwhelming and unanimous laughter. There was no reaction, from the participants, reflecting that an accident or mistake occurred. Importantly, the recovered cup was smashed, “splinted and cut into pieces,” which could not have happened from a soft toss or an accidental slip from a hand. The severity of the injuries sustained, that is, the severe blunt force trauma to the left eye, buttresses the version of the victim as to how the event unfolded. The Court finds some of the trial testimony, particularly that of Harford, to be incredible, in light of the entire record. The Court is convinced that Sullivan and Harford did not consider any potential harm from the execution of their intentional battery. Yet, common sense would leave the average person to expect a harm of some kind. The Court relies upon the long line of cases that follow the Mugavero case, which is cited to for the proposition that there is no “occurrence” or “accident” coverage, even before one looks at the issue of a policy exclusion (see, e.g., Tangney v. Burke, 21 AD3d 367, 368 [2d Dept 2005] [falling from a ledge during a physical altercation]; Village of Springville v. Reynolds, 61 AD3d 1353, 1354 [4th Dept 2009] [demolition of building was intentional, not an accident]; Salimbene v. Merchants Mut. Ins. Co., supra [picketing worker throwing a stone at a vehicle]). It is the contention of Ciminello’s attorneys that as Harford made the side arm motion with the cup of urine, the cup accidentally comes out of his hand. They conclude that “accidental results may flow from intentional causes” (Slayko v. Security Mut. Ins. Co., 98 NY2d 289, 293 [2002] [an intentional act exclusion case]; see also Clayburn v. Nationwide Mut. Fire Ins. Co., 58 AD3d 990 [3d Dept 2009] [a defensive bear hug and subsequent fall through plate glass window]). Defendant’s counsel seeks to convince one and all that what was intended here was the simple “dousing” of Ciminello, with the Big Gulp cup of urine, similar to the actions of the ex-New York Yankee outfielder, Brett Gardner, who would jokingly “douse” a player who just hit a game-winning hit, with a large container of Gatorade, to the thrill of the home-team crowd. However, that same crowd would be horrified if a grounds-crew vehicle approached the player at 30-40 miles an hour, dipping in to within 2 feet of the player and Brett Gardner proceeded to strike the player with the Gatorade container. The Court is struck by the fact that the immediate harm to Ciminello was so severe; so damaging to the back of the left eye. This is aside from the harm of the bloody nose and the burning in the eyes to the point that Ciminello could not see and which burned for days. Could a cup that just “slips” from one’s hand cause such immediate pain, a bloody nose, and pain across the entire face? Moreover, how could Harford, while traveling according to him, 40 miles an hour, reach out of a car window and have a cup full of urine “slip” and directly hit into the face of a walking Ciminello? Such precision could not be duplicated by a bombardiers using the Norden bombsight devices on the B-17 bombers during the aerial bombing over Germany during World War II. The Court finds the “slipped” portion of the testimony to be a self-serving effort to preserve the possibility of insurance coverage and to diminish individual culpability. This claim is unsupported and lacking in credibility. Harford never denied the intent to strike Ciminello with the urine, he merely denied an intent to hit him with the cup. However, as shown above, the prior deposition testimony is to the contrary and he was saved by a sustained objection from fully answering the question as to whether the cup was still in his hand when he assaulted Ciminello. The average person must recognize that harm and injury are inherent in the act. It is immaterial that Sullivan and Harford incorrectly believed that no harm will come from “dousing” one with urine. It is their actual intentional actions of driving a vehicle at 40 miles an hour, while one forces a cup into a victim’s face, that is very material. Consequently, whatever injuries resulted from those actions were intentionally and not accidentally caused, including the injury to the left eye. That the plan went awry does not transform the intended assault and battery into an accident. Such intentional acts are not “fortuitous” and thus, no occurrence has been or can be shown. The record shows that this incident, under the “transaction as a whole” test, was not fortuitous in nature. Even the acts conceded by Sullivan and Harford were done with the intention of inflicting an offensive bodily contact upon Ciminello. The acts committed by Sullivan and Harford militate against any finding of lack of intent. Moreover, upon close examination of Ciminello’s legal argument, the facts are unlike the facts in Messersmith, supra, where car keys were intrusted to an underage driver who was involved in an accident. While the initial act of intrusting the keys was willful, the ensuing conduct of the custodian was not. Here, the damages “flow directly and immediately from an intended act,” and did not “accidentally arise out of a chain of unintended though expected or foreseeable events that occurred after an intentional act” (Continental Ins. Co. v. Colangione, supra, at 979 ["defendants had no intention to cause harm and, in fact, strove to prevent the damages"]). Where the offensive contact is such that physical harm to the victim is inherent in the nature of the acts, courts have little difficulty finding that there is no coverage, despite the fact that the intention of the insured, allegedly, was not to cause the harm or was more extensive that intended (see Allstate Ins. Co. v. Mugavero, supra, at 161; United Services Auto. Assn. v. Iannuzzi, 138 AD3d 638 [1st Dept 2016]; Empire Ins. Co. v. Miguel, 114 AD3d 539 [1st Dept 2014]; Utica Fire Ins. Co. v. Shelton, 226 AD2d 705 [2d Dept 1996] [eye injury from punch]). Applying the above principles to the particular facts of this case, it is clear that Ciminello’s eye injury was to be reasonably expected by Harford when he smashed the Big Gulp cup into the face of Ciminello. As in State Farm Fire and Cas. Co. v. Torio, 250 AD2d 833 (2d Dept 1998), although the insured did not intend to actually hit anyone with gunfire, but to merely frighten them, “the damages caused by his conduct ‘flow[ed] directly and immediately from an intended act, thereby precluding coverage’ (Continental Ins. Co. v. Colangione, 107AD2d 978, 979; [additional citation omitted].” This matter is unlike the claim in Michaels v. City of Buffalo, 85 NY2d 754 (1995), where “the stalling and resulting delay of the [ambulance] was merely a series of routine, foreseeable, yet unfortunate events. However, it was not an ‘accident’ within the meaning of the business auto policy” (id. at 759). The Court acknowledges the discussion in Leo v. New York Cent. Mut. Fire Ins. Co., 51 Misc3d 171(Sup Ct, Oneida County, 2014 [Bernadette T. Clark, J.]; affd 136 AD3d 1333 [4th Dept 2016]), wherein plaintiff’s claim was that he “didn’t intend to have to use that bat,” that he did not intend to hurt the victim and that “it certainly was not his intent to hit [the victim] in the head with the baseball bat,” to be helpful herein. As interpreted by this fact finder, that is, the average person, the totality of the facts demonstrate that this incident was not an accident, to be covered by the policy (see Miller v. Continental Ins. Co., 40 NY2d 675, 676 [1976]). Coverage cannot be created where the policy was not written to provide same (see generally, Zappone v. Home Ins. Co., 55 NY2d 131, 134 [1982]). Sullivan cannot insist that his insurance company indemnify him for his intentional actions in 2005.² Finally, as in the Mugavero case, this decision is supported by recognizing the consequences of permitting the insured “to transfer the responsibility for his deeds onto the shoulders of other homeowners in the form of higher premiums” (Mugavero, supra, at 161; see also Travelers Ins. Cos. v. Stanton, 223 AD2d 104, 106 [3d Dept 1996]). Therefore, it is ORDERED, ADJUDGED AND DECLARED that Plaintiff, Unitrin Auto and Home Insurance Company, is not obligated to indemnify defendant, Brian C. Sullivan, for injuries arising out of a July 29, 2005 incident and a related personal injury action entitled Ciminello v. Sullivan, commenced in the Supreme Court, Suffolk County, under Suffolk County Index No. 21023/2005. This constitutes the decisions and order and declaratory judgment of the Court. Dated: February 11, 2022