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In State Farm and Casualty Company v. Jennifer Wilkerson, the insureds’ child was driven to the local Walmart, where he purchased a paintball gun. After buying the paintball gun, the child went to a local park where he shot the paintball gun at a group of kids. A paintball marker hit one child’s eye, causing serious injury. The injured child and his parents initiated a lawsuit against the insureds and their child. At issue was whether the homeowner’s policy covered the insureds’ child’s liability for the injury or whether such coverage was excluded as an intentional act.

The court noted that the homeowner’s policy excluded coverage if bodily injury was expected or intended by the insured. The court focused most closely on the term “expected,” which it defined as when “the actor knows or should have known there was a substantial probability that a certain result would take place.” The issue was whether the insureds’ child “should have known that there was a substantial probability that his conduct could have seriously injured [the victim’s] eye.”

In answering this question, the court noted the deposition testimony of the insureds’ child. The child admitted that he intended to: (1) shoot the paintball marker at a group of kids; (2) point the paintball gun at the direction of the group of kids; and (3) hit somebody with the paintball marker at their knees or feet. The child further admitted that he understood the paintball marker could cause injury.

Based on this information, the court concluded that the insureds’ child did not intend to hit the victim in particular nor cause serious harm to the victim’s eye. But the insureds’ child “intended and expected to hit one of the kids with the paintball knowing it might cause injury to whomever he it.” Thus, the court held that the insureds’ child “should have known there was a substantial probability that his conduct could have seriously injured [the victim’s] eye.” Therefore, the expected and intended exclusion precluded coverage under the first party property policy.

This decision serves as a useful reminder of the conduct barred under the expected and intended exclusion. The court was not persuaded by the deposition testimony that the insureds’ child was not aiming for the injured child in particular. Rather, the court found the expected and intended exclusion barred coverage based on testimony that the insureds’ child intended to shoot at the group of people. Consequently, this decision serves as a useful reminder that the expected and intended exclusion may be applicable when there is merely “a substantial probability” that the insured’s conduct could cause an injury.