Assault Disqualifies Camper From Insurance Coverage

As anyone who has spent time around children would know, there can be a fine line between horse play and an intentional act done to hurt another person. However, as children get older, this difference between the two can become easier to identify. This task recently fell to a judge for the Ontario Superior Court of Justice when a camp counsellor brought an action against a camper (the “applicant”) who assaulted him. The camper’s parents’ home insurance policy had a duty to defend, but not in all situations.

The incident

The plaintiff was a camp counsellor at a day camp located in Toronto. The applicant was a camper at the camp. The incident occurred on July 5, 2012. The court described the events of that day as follows,

“the (applicant), who was a minor at the time, ‘suddenly and without warning … approached [the plaintiff] from behind and put his two hands on top of [the plaintiff’s] head. He proceeded to pull [the plaintiff’s] head back and knee him in the back.’ As the plaintiff was walking to a nearby bench to sit, the (insured) ‘approached (the plaintiff) and once again pulled his head back and this time punched [the plaintiff] in the neck.’”

The claim pleaded that the injuries suffered by the plaintiff were contributed to by the negligence of the applicant. The claim was detailed as follows:

He negligently inflicted harm upon [the plaintiff], by engaging in excessive and dangerous horseplay;

b)           He negligently pulled (the plaintiff’s) head back, kneed him in the back and punched him in the neck;

c)            He continued to engage in the excessive and dangerous horseplay on the plaintiff after he had fallen to the ground;

d)           He behaved in a reckless manner with total disregard to [the plaintiff’s] safety, when he knew or ought to have known that such behavior might cause serious injury; and

e) He assaulted (the plaintiff) without provocation.

The insurance policy

The applicant was covered  by his parents’ home insurance policy. However, after receiving the original statement of claim, which described the incident as an assault, the insurance company notified the applicant’s parents that the applicant was not covered under the policy due to the Intentional Acts Exclusion, which read:

“The Intentional Acts Exclusion in the Policy reads as follows:

This policy does not apply to:

INTENTIONAL OR CRIMINAL ACTS, meaning bodily injury or property damage resulting from:

an intentional or criminal act by any person or any named insured who is insured by this policy or,

at the direction of any person or named insured who is insured by this policy.”

The two duties

The applicant sought coverage for both the duty to indemnify (pay any damages owed) as well as the duty to defend (to provide the applicant with a defense against the claim).

Regarding the duty to indemnify, the court found that it was too early to determine whether such a duty existed. The court wrote, “A finding of indemnification can only be made following a final determination of the allegations in the Action. That portion of the Application is therefore dismissed.”

The duty to defend the action required more analysis. The court found that the claims as outlined in the action were for negligence and assault and battery. After reviewing the allegations, the court found that they were rooted in the intentional tory of battery.

The applicant argued that for the Intentional Acts Exclusion to apply, the allegations must state that the applicant intended to injure the plaintiff. The applicant cited a 2007 case which found someone who injured another person by spraying them with water while restrained did not have the intent to injure. However, the court drew a distinction in this case, because the injuries in the case at hand were a direct result of an intentional court, rather than the 2007 case, where the spraying of the hose in and of itself was not.

As a result, the court found the insurance company to have no duty to defend the applicant and dismissed the application.

At Derfel Injury Law, we have over a decade of experience representing clients in a multitude of personal injury claims. Our team has the skill and knowledge to explore all avenues of potential remedies on behalf of our clients’ injures or losses. We help our clients identify the issues in their cases and work tirelessly on their behalf. Please call us at 416.847.3580 or reach us online if you or a loved one have experienced personal injury.