Car Accident After Driver Sped From Police Held To Be Expected And Intended By Driver

For a great discussion about the intentional acts exclusion in an auto policy by both the majority and the dissent, Thomas v. Benchmark Ins. Co., 140 P.3d 438 (Kan.App. August 18, 2006) is your huckleberry.  Here is a link to the case.

When I first started reading this case I noted the subject matter and the length — 17 pages on my Westlaw printout — and said to myself, "Come on, they could have finished this off in six."  The opinion is somewhat overfed, it could maybe use a little more peas and carrots and fewer potato chips, but it’s a fascinating debate about the nature of what is and what is not an intentional act.

What happened that gave rise to the case was this: a woman and her two male companions got into a bar fight, and as they sped off, one of the men sprayed 10 bullets from his gun in the general direction of a crowd.  Thankfully, apparently no one was shot.  A police car pulled her over, but against the advice of her friends, she again sped away as the officer approached the car.  There is no doubt she was driving in a reckless and  wantonly careless manner.  Not long after, her car bottomed out at an intersection at perhaps 100 mph (but one witness said the speed may have been as low as 35 to 45 mph), she lost control, the car flipped and she and a passenger were killed.  The other passenger lived, and he and the dead man’s estate sued on the driver’s auto policy.

The court found there was no coverage because of the policy’s intentional act exclusion.  Kansas follows a minority view of what is an intentional act: anything that is a natural and probable outcome of conduct.  The majority of states hold that an act is intentional only if both the act and some kind of injury were intended.  Another minority view is even more oriented against the exclusion — it says an insured must have had a specific intent not only to do the act but to cause the particular type of injury suffered.   The court said the car accident was the natural outcome of fleeing the policy at speeds of 100 mph.

But the dissent makes some excellent points.  The police apparently were not right on the driver’s tail and had lost sight of the car.  In that circumstance, was the accident really the natural outcome of fleeing the police?  Is an accident the natural outcome of speeding, even at 100 mph?  What about drivers who simultaneously talk in a very animated way on a cell phone and eat a popsicle while obliviously powering through intersections?  (I saw this happen recently).  If the driver crashes, is that covered negligence or the excluded natural consequence of driving like a moron?

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