IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

USAA CASUALTY INSURANCE )
COMPANY, )
) C.A. No. K18C-05-050 NEP
Plaintiff, ) In and For Kent County
)
Vv. )
)
TRINITY CARR, )
)
Defendant. )

Submitted: April 5, 2019
Decided: June 12, 2019

MEMORANDUM OPINION AND ORDER

Upon Plaintiff’s Motion for Summary Judgment
DENIED

Upon Defendant’s Cross Motion for Summary Judgment
GRANTED

Jeffrey A. Young, Esquire, Young & McNelis, Attorney for Plaintiff.

Benjamin C. Wetzel, III, Esquire (argued) and Natalie M. Ippolito, Esquire, Wetzel &
Associates, P.A., Attorneys for Defendant.

Primos, J.
On April 21, 2016, Amy Joyner Francis (hereinafter “Ms. Francis”), a student
at Howard High School of Technology in Wilmington, Delaware, died tragically
following an incident in a restroom at the school. Subsequently, family members of
Ms. Francis sued multiple defendants, including Trinity Carr (hereinafter “Ms.
Carr”), in two separate lawsuits. Ms. Carr is also the Defendant in the current action,
in which Plaintiff USAA Casualty Insurance Company (hereinafter “USAA”) seeks a
declaratory judgment that it is not required to defend or indemnify Ms. Carr in those
lawsuits. The parties have filed cross motions for summary judgment, which have
been submitted to the Court for decision. For the reasons stated herein, USAA’s
motion will be DENIED, and Ms. Carr’s motion will be GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The record before the Court for purposes of summary judgment consists of the
allegations of the two complaints filed against Ms. Carr,' together with the provisions
of the insurance policy at issue, and a copy of certain cell phone video recordings
submitted by USAA depicting both an apparent interaction between Ms. Carr and Ms.
Francis the day before the alleged attack, and the alleged attack itself. While the
parties to this action may disagree about the truth of the facts set forth in the

underlying complaints, and while they certainly disagree about the import of the

' Under Delaware law, the duty to defend is based upon “whether the underlying complaint, read
as a whole, alleges a risk within the coverage of the policy.” Brosnahan Builders, Inc. v.
Harleysville Mut. Ins. Co., 137 F. Supp. 2d 517, 525 (D. Del. 2001).
policy’s provisions, there is no dispute about what the complaints and the policy say.
Therefore, the Court will summarize the relevant portions of those documents.

The two complaints filed against Ms. Carr contain virtually identical language.
They allege that Ms. Carr, while a student at Howard High, and another student, Zion
Snow (hereinafter “Ms. Snow”), assaulted Ms. Francis in a restroom at the school on
April 21, 2016.2 According to the complaints, Ms. Carr and Ms. Snow “hatched a
plot to seek retribution against [Ms. Francis] through the use of verbal and physical
threats and intimidation and, ultimately, brutal physical force and violence” and
“conspired with each other to intentionally intimidate, threaten and physically attack”
Ms. Francis. The complaints allege that, following the attack, Ms. Francis was left
gasping for air on the restroom floor and died shortly afterwards of “sudden cardiac
arrest caused by the physical and emotional distress of the attack.” According to both
complaints, “[b]ut for” Ms. Carr’s and the other defendants’ wrongful conduct, Ms.
Francis “would not have died on April 21, 2016.”

Following service of process in the two lawsuits, Ms. Carr sought coverage
from USAA under her mother’s homeowner’s insurance policy. By its terms, that
policy covers an insured’ for claims made for “‘bodily injury’ or ‘property damage’

39

caused by an ‘occurrence’... .” The policy defines “occurrence” as an “accident,

* Both Ms. Carr and Ms. Snow are now adults.
> USAA concedes that Ms. Carr, as a resident relative of the named insured, is a potential insured
under the policy.
including continuous and repeated exposure to. . . harmful conditions” that results in
“bodily injury” or “property damage.” “Bodily injury” is defined as “physical injury,
sickness, or disease, including required care, loss of services and death that results.”

Finally, the policy contains an exclusion providing that coverage under the policy

do[es] not apply to “bodily injury” or “property damage”:
a. Which is reasonably expected or intended by any
“insured” even if the resulting “bodily injury” or
“property damage”:
(1) Is of a different kind, quality or degree than initially
expected or intended....

After completion of discovery in this declaratory judgment action, USAA
moved for summary judgment. Ms. Carr filed a written response in opposition to the
motion but did not file a cross motion for summary judgment. At oral argument,
however, counsel for Ms. Carr agreed with counsel for USAA that there is no genuine
issue of material fact and that this matter is ripe for decision as a matter of law. At

that time, the Court permitted counsel for Ms. Carr to advance an oral cross motion

for summary judgment.
Il. STANDARD OF REVIEW
Summary judgment is appropriate where “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is

* Where, as here, the parties have filed

entitled to a judgment as a matter of law.”
cross motions for summary judgment and have not argued that there is any issue of
material fact, the Court “shall deem the motions to be the equivalent of a stipulation
for decision on the merits based on the record submitted with the motions.” In such
a procedural setting, the parties are conceding the absence of any material factual
issues and, at the same time, are acknowledging that the factual record before the
Court is sufficient to support their respective motions.°

If the language of an insurance policy is clear and unambiguous, “a Delaware
court will not destroy or twist the words under the guise of construing them.”’
However, where there is ambiguity in the policy language, or confusion in the

deliberate selection of language, the court must engage in construction of the

language, and the policy language is always construed most strongly against the

* Del. Super. Ct. Civ. R. 56(c).

° Del. Super. Ct. Civ. R. 56(h).

° Browning-Ferris, Inc. v. Rockford Enterprises, Inc., 642 A.2d 820, 823 (Del. Super. 1993).

" Hallowell v. State Farm Mut. Auto. Ins. Co., 443 A.2d 925, 926 (Del. 1982) (citing Apotas vy.
Allstate Ins. Co., 246 A.2d 923, 925 (Del. 1968), and Novellino v. Life Ins. Co. of North America,
216 A.2d 420, 422 (Del. 1966)).
insurer.® In addition, an insurance contract should be read in accordance with the
“reasonable expectations” of the insured as far as the language permits.’

In considering whether an insurer has a duty to defend its insured, the court
must consider the following factors:

(a) where there exists some doubt as to whether the
complaint against the insured alleges a risk insured against,
that doubt should be resolved in favor of the insured;

(b) any ambiguity in the pleadings should be resolved
against the carrier;

(c) if even one count or theory of plaintiff's complaint lies
within the coverage of the policy, the duty to defend
arises.'°

The insured bears the burden of proving that a claim is covered by the

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policy.'' Once the insured does so, the insurer has the burden of proving that an

exclusion bars coverage.”

Ill. DISCUSSION
In determining whether USAA is obligated to defend and indemnify Ms. Carr,
the Court must answer two questions: (1) whether the underlying incident qualifies
as an “occurrence” under the policy, and (2) whether the policy’s “intentional tort”

exclusion operates to bar coverage in this case.

5 Novellino, 216 A.2d at 422; Steigler v. Insurance Co. of North America, 384 A.2d 398, 400 (Del.
1978).

” Steigler, 384 A.2d at 401.

'° Continental Cas. Co. v. Alexis I. duPont School Dist., 317 A.2d 101, 105 (Del. 1974).

'' State Farm Fire and Cas. Co. v. Hackendorn, 605 A.2d 3, 7 (Del. Super. 1991) (citing New Castle
County v. Hartford Accident and Indemnity Co., 933 F.2d 1162, 1181 (3d Cir. 1991)).

* Id. (citing Merced Mut. Ins. Co. v. Mendez, 213 Cal. App.3d 41, 47 (1989)).
A. Ms. Carr Has Carried Her Burden of Showing That the
Underlying Incident is Covered Under the Policy as an
“Occurrence.”

As previously noted, Ms. Carr, as the insured, bears the burden of proving
that the conduct at issue is covered by the policy, while USAA bears the burden of
proving that any exclusions apply. In determining whether the alleged assault is
covered as an “occurrence,” this Court looks to its earlier decision in Camac v.
Hall.'* Under the facts of Camac, the insured, Hall, had entered a restroom,
encountered Camac, and intentionally struck him, causing injury to him. In Camac,
as here, coverage was provided for bodily injury or property damage caused by an
“occurrence,” and “occurrence” was defined as bodily injury or property damage
resulting either from an “accident” or from continuous and repeated exposure to a
condition. Moreover, in Camac, as here, the term “accident” was not defined by the
policy.

The Camac Court noted that the Court’s earlier decision in Hackendorn,
supra, had defined “accident” as “an event not anticipated or foreseen by the victim,
or an outcome not intended by the insured.”'* The Camac Court concluded that the
assault qualified as an “accident” because Hall had struck Camac while Camac was

using the restroom, and it was “not usual or expected to be struck at such a time.”

3 698 A.2d 394 (Del. Super. 1996).
'* Camac, 698 A.2d at 396 (citing Hackendorn, 605 A.2d at 7-9).
15 Id.
The Hackendorn Court similarly found that the incident at issue in that case
qualified as an “accident,” and therefore that the insured had met his burden of
demonstrating coverage.'© In reaching this conclusion, the Hackendorn Court
examined decisions from other jurisdictions regarding the definition of “accident”
and summarized those decisions as follows: whether an event is considered an
accident is determined by ‘“(1) taking the point of view of the injured person and/or
(2) looking at the insured’s conduct.”'’ Applying these principles to the facts before
it, the Hackendorn Court concluded that as to the victim, Dillman, the shooting was
clearly an accident, but as to the insured, Hackendorn, whether the incident was an
accident was much more complicated, given the concepts of intention and
expectation discussed in the decisional law examined by the court.'* The
Hackendorn Court therefore found applications of the various definitions of accident
to the questions of coverage in the case before it to be ambiguous, and because
ambiguity is to be construed against the insurer, whether the incident was to be
considered an accident was to be viewed from the perspective of the victim,
Dillman.'"”

There is similar ambiguity in this case with regard to whether the incident in

'® Under the facts of Hackendorn, the insured had fired a shotgun twice in a confined space (a small
beauty salon), killing his wife (the intended target) but also injuring the victim, Dillman.

'7605 A.2d at 8 (emphasis in original).

'8 Id. This was presumably because, although Hackendorn had not intended to wound Dillman,
he had intentionally discharged the shotgun and should have expected that she would be injured.
19 Id
the restroom at Howard High qualifies as an accident. It is clear from the record
before this Court that, from the perspective of Ms. Francis, the attack in the
restroom at Howard High was an accident—that it was a “happening by chance,
unusual, fortuitous and not anticipated.”*? Although the complaints in the
underlying lawsuits allege that Ms. Carr and Ms. Snow had “confronted and
threatened” Ms. Francis the day before the attack, there is no indication in the
complaints that Ms. Francis entered the restroom on April 21 expecting to be
physically assaulted.”! The perspective of Ms. Carr, on the other hand, like that of
Mr. Hackendorn, is more complicated. While there can be no dispute that Ms. Carr
intended to harm Ms. Francis, there is no indication, as will be more fully discussed
later in this opinion, that Ms. Carr either intended to cause Ms. Francis’s death or
expected that her death would result from her (Ms. Carr’s) actions. Therefore, the
ambiguity must be construed against USAA, and the incident must be viewed from
Ms. Francis’s perspective—i.e., as an accident.

Clearly one aspect of the ambiguity present in both Camac and
Hackendorn—and also present here—is that none of the insurance policies involved
clarify whether the term “accident” is to be analyzed from the perspective of the

victim or that of the insured. In both Camac and Hackendorn, the Court concluded

20 Id.
*' The Court notes, as well, the absence of any indication in the cell phone video recordings of the
incidents of April 20 and 21 that Ms. Francis anticipated or expected the physical attack.
that the ambiguity present should be resolved against the insurer by viewing the
event from the perspective of the victim. The Court must reach a similar conclusion
here, and must determine that Ms. Carr has carried her burden of showing that the

incident in question constitutes an “occurrence” under the policy.

In arguing that the alleged attack does not qualify as an “occurrence,” USAA
points to the decision in TIG Insurance Company v. Premier Parks, Inc.,”* where
this Court stated that “[b]y their very nature, intentional torts are not ‘accidents’” for
purposes of a policy definition of “occurrence.” The 7/G Court, however, was
applying Oklahoma law, not Delaware law.’ Therefore, its pronouncements do not

apply in this case.”°

* 2004 WL 728858 (Del. Super. Mar. 10, 2004).

3 Td. at *11.

** Td. at *4.

° But cf. McAlley v. Selective Ins. Co. of America, 2011 WL 601662, at *3 (Del. Super. Feb. 16,
2011) (Court found that alleged sexual abuse of minor by insured did not constitute an “accident,”
and therefore did not qualify as an “occurrence” under the policy). McAlley is distinguishable, both
because it involved sexual abuse of the alleged victim, and because the insured had conceded that
the counts of the complaint alleging intentional or reckless conduct did not invoke coverage, but
claimed that the single count of the complaint alleging negligent conduct triggered a duty to defend.
Id. The Court ultimately determined that the complaint’s characterization of intentional sexual
abuse as negligent conduct did not operate to trigger coverage, where there were no facts to support
such a characterization. /d. To the extent, however, that McAlley stands for the proposition that any
incident involving intentional conduct on the part of the insured cannot qualify as an “accident,” and
therefore as an “occurrence,” under similar policy language, this Court declines to follow it, given
that there is no acknowledgement or analysis in McAlley of the ambiguities inherent in the undefined
term “accident,” as there was in Hackendorn and Camac.

10
B. USAA Has Failed to Carry Its Burden of Showing That the
“Intentional Tort” Exclusion Applies.

Because the underlying incident qualifies as an “occurrence,” it potentially
triggers coverage under the policy. Still at issue, however, is the applicability of the

“intentional tort” exclusion.

1. The Injuries That Occurred in This Case Were Not
Reasonably Foreseeable.

This Court in Camac and Hackendorn, as well as the Delaware Supreme
Court in Farmer in the Dell Enterprises, Inc. v. Farmers Mutual Insurance Co.,”°
considered the applicability of exclusionary language that was similar—but not
identical—to the language at issue in this case. All three decisions addressed policy
language, like that of the policy in this case, excluding coverage for bodily injury or
property damage that was “expected or intended” by the insured.

In Farmer in the Dell, Camac, and Hackendorn, the Courts addressed the
importance of the issue of foreseeability in evaluating exclusionary language. In
Farmer in the Dell and Hackendorn, those advocating for coverage argued that the
respective tortfeasors had not intended the injury or damage that actually occurred
(in Farmer in the Dell, the destruction of a building, and in Hackendorn, injury to a
bystander). In both cases, the Courts found the intentional tort exclusion applicable

because the injury/damage was “expected,” i.e., reasonably foreseeable, even if not

6 514 A.2d 1097 (Del. 1986).

11
“intended.””’ Similarly, the Court in Camac found that “the physical injuries which
in fact occurred were reasonably foreseeable”—i.e., “expected”—even if they were
more extensive than the tortfeasor intended.”®

As the Supreme Court explained in Farmer in the Dell, an exclusion for
injury or damage that is “expected or intended” applies where there has been an
intentional act along with an intent to cause some injury or damage “so long as it is
reasonably foreseeable that the damage which actually followed would in fact
oceur.””? The Hackendorn and Camac Courts similarly recognized that in order for
the exclusion to apply, the insured/tortfeasor’s conduct must have been intentional
and, even if the resulting injuries were not intended, they must have been reasonably
foreseeable.°°

In its Reply Brief, USAA cites Farmer in the Dell for the proposition that
Delaware courts have denied applicability of the intentional act exclusion only
a

“[w]here the tortfeasor clearly lacks the intent to inflict any damage or injury. . .

That, however, is not a fair reading. Rather, in the cited passage, the Farmer in the

°7 Farmer in the Dell, 514 A.2d at 1099; Hackendorn, 605 A.2d at 9.

8 Camac, 698 A.2d at 398.

° 514 A.2d at 1099 (emphasis supplied).

°° See Hackendorn, 605 A.2d at 9 (“Even if the injuries were unintended, where they were the
natural, foreseeable and expected and anticipatory result of the insured’s intentional act, they would
fall under the ‘expected’ exclusionary language.”); Camac, 698 A.2d at 398 (“When a person clearly
intends the act that causes the other person’s injuries, and the resulting injuries are reasonably
foreseeable, Delaware law clearly states that a court must give effect to liability coverage exclusion

clauses in homeowner insurance contracts.”’)
>! Farmer in the Dell, 514 A.2d at 1100.

12
Dell Court was merely responding to the citation of inapposite authorities involving
an actor who had intended to scare or frighten the victim but had intended no
damage or injury to the victim. The quoted passage must be read in the context of
the entire decision, including the Supreme Court’s holding, noted previously, that
application of the exclusion is allowed “upon the showing of an intentional act
coupled with an intent to cause some injury or damage so long as it is reasonably
foreseeable that the damage which actually followed would in fact occur.”

Turning to the facts of this case, there is no question that Ms. Carr intended to
cause some injury to Ms. Francis: the factual allegations of the underlying
complaints are unequivocal about such an intent. However, there is no indication in
the record that the injury that actually resulted from Ms. Carr’s conduct—Ms.
Francis’s death—was either intended by Ms. Carr or reasonably foreseeable to her.
Although the underlying complaints are silent about whether Ms. Francis suffered
from a latent medical condition,*’ there is no dispute that Ms. Francis suffered from
a preexisting cardiac condition that was unknown to all involved, including Ms. Carr

and Ms. Francis, prior to the attack, and that this condition led to her death.*4

* Td. at 1099.

» The complaints state merely that Ms. Francis “died of sudden cardiac arrest caused by the physical
and emotional distress of the attack.”

* USAA acknowledges in its Opening Brief that Ms. Francis died as a result of the attack “because
of an unknown preexisting heart condition. .. .” Similarly, in her Response Brief, Ms. Carr states
that Ms. Francis “died from cardiac arrest caused by an undiagnosed, extremely rare medical
condition.”

13
Indeed, it was the issue of foreseeability upon which Ms. Carr’s appeal of her
related delinquency adjudication turned. The Delaware Supreme Court reversed
Ms. Carr’s criminally negligent homicide adjudication because her conduct had
failed to reach the standard for criminal negligence: the “actual result” of her
conduct—Ms. Francis’s death—was “outside the risk” of which Ms. Carr should
have been aware.”°

A review of the video recording of the attack submitted by USAA confirms
that the harm that resulted from Ms. Carr’s intentional conduct was not reasonably
foreseeable. While the video recording is certainly disturbing, and demonstrates
that Ms. Carr intended to cause harm to Ms. Francis, no review of the video
recording could lead to a credible contention that Ms. Carr intended to cause Ms.
Francis’s death, or that she could reasonably have foreseen that her actions would
result in Ms. Francis’s death. Indeed, this Court concurs with the Supreme Court’s
assessment that the video does not show a “severely violent” attack, but rather a
physical altercation during which Ms. Carr rather ineffectually struck at Ms. Francis
and pulled her hair, and the two ended up on the floor pushing against each other

* 11 Del. C. § 263; Cannon v. State, 181 A.3d 615 (Del. 2018). Pursuant to Supreme Court Rule
7(d), Ms. Carr was assigned the pseudonym “Tracy Cannon” for purposes of that appeal. As USAA
has not clearly stated an intent to relitigate the Supreme Court’s determination that Ms. Francis’s
death was beyond the risk of which Ms. Carr should have been aware, this Court need not decide
whether that determination would have collateral estoppel effect with regard to the issue of
foreseeability. Cf Nationwide Mut. Ins. Co. v. Flagg, 789 A.2d 586 (Del. Super. 2001) (defendants
collaterally estopped from relitigating with homeowner’s insurer the question, previously
determined in criminal proceeding, of whether insured had committed intentional acts).

14
with their feet.°*°

To be sure, while the underlying legal principles are the same, the unusual facts
of this case distinguish it from cases like Farmer in the Dell and Hackendorn—and
point to a different result. In Farmer in the Dell, it was reasonably foreseeable that
starting a fire in a trash pile and then setting the burning trash next to a restaurant
building would result in destruction of the building. In Hackendorn, it was
reasonably foreseeable that discharging a shotgun twice in a small beauty salon
would result in injury to persons other than the intended target of the shooting. In
this case, by contrast, neither the tortfeasor nor her victim could have reasonably
foreseen that the pulling and pushing recorded on the video would result in Ms.
Francis’s death. Accordingly, this Court must conclude, based upon the record
before it, that while Ms. Carr’s physical attack upon Ms. Francis was intentional, the
result that “actually followed”—Ms. Francis’s death—was neither intended nor

reasonably foreseeable by Ms. Carr.

2. The Language of the Exclusion Is Confusing and
Contradictory and Therefore Fails to Exclude Coverage
Where the Injury Was Not Reasonably Foreseeable.

The holdings in Farmer in the Dell, Hackendorn, and Camac, together with
the facts of this case, would seem to settle the issue of the exclusion’s
applicability—i.e., that the exclusion does not apply because the bodily injury in this

°° Cannon, 181 A.3d at 618-19, 625.

15
case, Ms. Francis’s death, was neither “expected” nor “intended.” The question of
the exclusion’s applicability, however, is complicated by the fact that, as noted
previously, the exclusionary language before the Court differs from that in Farmer
in the Dell, Hackendorn, and Camac. The policy in this case does not simply
purport to exclude bodily injury or property damage that is “expected or intended”
by the insured, but instead states that coverage

do[es] not apply to “bodily injury” or “property damage”:

a. Which is reasonably expected or intended by any “insured”
even if the resulting “bodily injury” or “property damage”:

(1) Is of a different kind, quality or degree than initially
expected or intended....

The problem here is that the language chosen by the insurer is both confusing
and internally contradictory. Specifically, the policy language provides no
explanation of how the bodily injury or property damage for which the exclusion
purports to exclude coverage differs from the “resulting ‘bodily injury’ or ‘property
damage.’” In other words, the bodily injury or property damage for which the
exclusion purports to exclude coverage appears to be one and the same with the
“resulting” bodily injury or property damage, but the exclusionary language
attempts to draw a distinction between the two—a logical impossibility.

As the Delaware Supreme Court explained in Novellino, supra, an insurance

16
contract is construed against the insurer when there is “ambiguity in the language
employed or confusion in the deliberate selection of language... .”’’ The language
of this exclusion is ambiguous at best, and utterly confusing at worst. Is “‘bodily
injury’ or ‘property damage’. . . [w]hich is reasonably expected or intended by any
‘insured’” the injury or damage that actually results from the insured’s intentional
conduct, or is it some injury or damage in the mind’s eye of the insured? If the
former, how can it be “different” from the “resulting” injury or damage? If the
latter, how can it be injury or damage for which coverage is in fact excluded?

The insurer may have intended to state that coverage is excluded where the
insured reasonably expects or intends some injury or damage, even if the injury or
damage that actually results is neither expected nor intended.. The problem here,
however, is that the language of the policy does not so state. The Court is left with
contradictory, not clear and unequivocal, language, and therefore USAA cannot

carry its burden to prove that the exclusion applies.

In State Farm Mutual Automobile Insurance Co. v. Johnson, the Delaware
Supreme Court first adopted the doctrine of reasonable expectations—that, because
insurance policies “‘are not talked out or bargained for as in the case of contracts

generally . . . [and] the insured is chargeable with its terms because of a business

7 Novellino, 216 A.2d at 422.

17
utility rather than because he read or understood them . . . hence an insurance
contract should be read to accord with the reasonable expectations of the purchaser

38 In Hallowell, supra, the Supreme Court

so far as its language will permit.
clarified the meaning of the phrase “so far as its language will permit,” i.e., that the
reasonable expectations doctrine applies only “if the terms [of the policy] are
ambiguous or conflicting, or if the policy contains a hidden trap or pitfall, or if the
fine print takes away that which has been given by the large print.”*’ Here, the
terms of the “intentional tort” exclusion are ambiguous and conflicting, and the
insured is therefore entitled to her reasonable expectations based upon the holdings
of Farmer in the Dell, Hackendorn, and Camac—specifically, that coverage is
available because the bodily injury that occurred, Ms. Francis’s death, was neither
intended by Ms. Carr nor reasonably foreseeable by her.

USAA argues that affording coverage to Ms. Carr in this case would yield a
perverse outcome, because if Ms. Francis had not died from Ms. Carr’s intentional
assault, coverage would have been denied (presumably because the bodily injury in
that case would have been either expected or intended, or both). Certainly, one

rejoinder to that argument is that, in such a case, both Ms. Carr’s exposure to

liability and Ms. Francis’s injuries (for which compensation is ultimately being

*8320 A.2d 345, 347 (Del. 1974) (quoting Cooper v. Government Employees Ins. Co.,237 A.2d 870,
873 (N.J. 1968)). )
3° 443 A.2d at 927.

18
sought) would have been much less significant. Beyond that, denying coverage
because of the perceived unfairness of the result would involve ignoring both the
language of the policy itself and well-established Delaware law regarding
interpretation of insurance contracts.

Because the Court has concluded that the exclusionary language is not
effective to bar coverage, it need not reach the parties’ other arguments, including
Ms. Carr’s arguments that some of the claims against Ms. Carr are for negligent

rather than intentional conduct.

IV. CONCLUSION

The Court is mindful of the public policy implications of this case, which
were also acknowledged by the Court in Hackendorn. On the one hand, there is the
well-established Delaware rule that an insured “shall not profit by way of indemnity
from his own wrongdoing.”*? On the other hand, there is an innocent victim, Ms.
Francis, whose heirs and family members would be negatively affected by the denial
of coverage for Ms. Carr.*'

Ultimately, however, the Court must base its decision not upon an analysis of
competing public policy considerations but upon the language of the policy before it

and upon well-settled authority regarding the proper interpretation of insurance

” Hackendorn, 605 A.2d at 12 (citing Hudson v. State Farm Mut. Auto. Ins. Co., 569 A.2d 1168,
1171 (Del. 1990)).
*' See id. (considering impact of decision upon innocent victim of tortfeasor’s conduct).

19
policies. Because the meaning of “accident” in the definition of “occurrence” is
ambiguous, and because the language of the intentional tort exclusion is confusing
and contradictory, the policy language must be construed against USAA and in
favor of Ms. Carr, and USAA will be required to defend and indemnify Ms. Carr in

the underlying lawsuits.

WHEREFORE, for these reasons, USAA’s motion for summary judgment

will be DENIED, and Ms. Carr’s cross motion for summary judgment will be

 

GRANTED.
IT IS SO ORDERED.
/s/ Noel Eason Primos
Judge
NEP/wjs

Via File & ServeXpress and U.S. Mail
oc: Prothonotary

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