A court in Delaware USA held that coverage for an incident where one child used a paintball gun to shoot a paintball at another child, injuring his eye, was excluded from cover under the parents’ homeowners policy.
The policy covered the insured if a suit was brought ‘against the insured for damages because of bodily injury or property damage’ and paid damages for which the insured was legally liable, as well as defence costs. The policy excluded coverage for ‘bodily injury or property damage which is either expected or intended by the insured’.
The child called a group of friends across to the car where he was sitting and fired a paintball at the group of kids intending to hit one of them and in the knowledge that the paintball marker could cause injury.
The court held that there is a difference between ‘expected’ and ‘intended’ injury. An injury is ‘expected’ if the actor knows or should have known there was a substantial probability that a certain result would take place (in South Africa indirect intent or dolus eventualis, made famous in the Pistorius case).
The word ‘intended’ as applied to the exclusion clause ‘denotes that the actor desired to cause the consequences of the act or believed that the consequences were substantially certain to result from it’ (direct intent). Seeing the child intended to hit one of the kids in the group and knew he could cause injury by doing so it was intentional conduct creating a substantial probability of injury and was excluded from the homeowners insurance policy.
The same result should follow under South African law. The position would be different if the children were all playing paintball and firing at each other with knowledge and consent of the risk of injury.
(State Farm Fire and Casualty Co. v Jennifer Wilkerson et al.)
