Tort Liability for Intentional Acts of Family Members: Will Your Insurer Stand by You?
40 Pages Posted: 18 Jun 2001 Last revised: 7 Aug 2009
Date Written: 2000
This article discusses increasingly common claims against individuals for intentional torts committed by family members and the related homeowner insurance coverage issues. When minors commit intentional torts, parental liability may be imposed by statute or claims may arise based on negligent supervision or premises liability. Claims against a non-offending spouse in child molestation cases are also increasingly common. In these cases, plaintiffs typically allege the non-offending spouse committed some negligent affirmative act that enabled the other spouse to molest the child. Although the "no duty to protect or rescue" rule has been a bedrock of tort, these theories of liability against individuals for the intentional torts of family members challenge this enduring tort law principle. Plaintiffs plead such claims in order to overcome the intentional act exclusion within the homeowners policy. While the intentional act exclusion in a homeowner insurance policy will often exclude coverage for the intentional acts of the offending insured, claims against purely negligent parents or spouses are not so easily resolved. Significantly, for the purposes of insurance coverage, these claims are typically fact intensive and not easily disposed of on motions for summary judgment. As courts interpret these often ambiguous insurance contracts they are often mindful that important competing policies underlying the insurance contract are at stake: 1) not covering intentionally wrongful acts; 2) compensating victims; and 3) achieving an insured's reasonable expectations. In this article, I argue that with regard to the non-offending parent or spouse a coextensive tort and insurance schema best balances these competing fundamental public policies.
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