You are sound asleep at 3 a.m. when you hear suspicious noises. You pull out your pistol, investigate, see a burglar in your living room, and shoot him in order to protect your life and/or property. Can the burglar or his estate sue you for his injuries or death? Since the burglar is a trespasser, the duty a resident or home owner owes is less compared to, say, an invitee. And a key factor—deadly force—certainly comes into play. The use of deadly force, in most states, is not legally justifiable to protect property alone. Are you covered by your insurance policy?
The homeowners policy's liability exclusion precludes coverage for intentional injury with a key exception. This exclusion does not apply to "'bodily injury' or 'property damage' resulting from the use of reasonable force by an 'insured' to protect persons or property." So how have the courts ruled on this intentional injury exception for trespassers?
In Cooperative Fire Ins. Ass'n v. Bizon, 166 Vt. 326, 693 A.2d 722 (1977), the insured shot and killed a burglar fleeing his garage. The Vermont Supreme Court ruled that the intentional injury exclusion applied, particularly since the insured's life was not threatened in this particular situation. The insurer had no duty to defend or indemnify.
In Vermont Mut. Ins. Co. v. Walukiewicz, 290 Conn. 582, 966 A.2d 672 (2009), the Connecticut Supreme Court ruled that injuries arising from an insured's act of self-defense were accidental and, therefore, fell within the scope of homeowners coverage. In this case, the insured was involved in an altercation during which, in alleged self-defense, he grabbed and pushed the claimant, causing him to fall down several porch stairs and sustain significant leg injuries. The insurer denied coverage on the ground that the claimant's injuries did not arise from an "occurrence" and that the expected/intended harm exclusion applied.
The Connecticut Supreme Court disagreed, holding that the term "occurrence" encompasses actions taken by an insured in legitimate self-defense because those actions are spontaneous and prompted by unforeseen circumstances that warrant an immediate response. It ruled that "when a person legitimately acts in self-defense, his primary intent is not to cause injury to another, but to prevent harm to himself." (See Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 .) The court concluded that it does not offend public policy to afford insurance coverage for acts of self-defense because they are not wrongful.
These cases are a reminder that there is no automatic protection under criminal law (and no automatic liability coverage) when a home owner or resident injures or kills a trespasser. On the insurance side, the courts look at the circumstances of each situation and the policy wording to ascertain whether the insurer owes a duty to defend or indemnify the resident.
If you would like to know if your policy will cover you, ask your agent.
I am always available to review your existing policy and give you my opinion.
This article contains information from International Risk Management Institute, Inc.