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New Scotland Archives — The Altamont Enterprise, June 15, 2006

Cook wins
Insurance company must defend, court says

By Holly Grosch

ALBANY — The state’s highest court, a panel of seven judges deciding on the last possible appeals, ruled last Thursday that Clarksville native Alfred Cook’s insurance company must defend him in a pending wrongful death civil suit.

The court did not make a determination on whether or not the company — Travelers Insurance, a subsidiary of Automobile Insurance Company of Hartford Conn. — has to also indemnify Cook if he loses the civil suit.

The ruling is not as groundbreaking as lawyers and observers had anticipated because the Court of Appeals did not broach defining the law in regards to an insurance company’s duty when it comes to clients acting in self defense.

This case did not set a precedent in New York State, determining whether or not acts of self defense are considered intentional acts — precluding coverage under a homeowner’s policy.

Rather, the Court of Appeals made a ruling in favor of Cook because the civil suit against him is claiming negligence and the insurance company has to defend that.

Cook shot and killed his long-time acquaintance and business associate Richard Barber, after Barber advanced on him inside his Dunbar Hollow Road home on Feb, 22, 2002. Cook was acquitted of all charges including murder in December of that year. The jury concluded that Cook had acted in self-defense.

Barber’s son, Andrew Pruyn, sued Cook in March 2002 for $1 million; since Pruyn was a minor, his mother, Victoria Pruyn, took action on his behalf when he was 13.

The civil suit argues that the shooting was not justified and that there were other alternatives. The Pruyns’ suit makes two separate causes of action — one that Cook acted negligently and the second that Cook’s shooting of Barber, causing his death, was intentional.

Cook’s insurance company refused both to defend and indemnify Cook, arguing, first, that the shooting was not a covered "occurrence" under his homeowner’s policy because it was not an accident, and, secondly, that the shooting and injuring of Barber causing his death falls within the policy’s exclusion for "expected or intended."

Cook, now in his early 60’s, is residing in an Albany assisted living facility. He suffered a severe stroke in the past year.

The ruling

Referencing previous rulings in other cases by New York’s courts, Court of Appeals Judge Carmen Beauchamp Ciparick wrote that an insurer must "provide a defense whenever the allegations of the complaint ‘suggest"a reasonable possibility of coverage.’"

If the negligence claim were established, Cook’s actions would be an occurrence/accident, the court’s ruling says.

Also, when an insurance company doesn’t want to cover an incident, claiming that it falls within an exclusion clause, it’s the company’s obligation to demonstrate that the complainant’s allegations, in this case the Pruyns’ allegations, are entirely within the policy exclusion and that the allegations are subject to no other interpretation, Court of Appeals Judge Ciparick wrote for the panel.

The Court of Appeals did not find this to be true. In fact, the Pruyns’ allegation of negligence, if proven in civil court, would make the incident a covered occurrence, the court ruled.

Cook’s homeowner’s policy defines "occurrence" as an accident, Ciparick points out. And, ""an allegation of negligence implies an unintentional or unexpected event," she wrote.

The Court of Appeals has previously determined "accident" pertains "not only to an unintentional or unexpected event which, if it occurs, will foreseeably bring on death, but equally to an intentional or expected event which unintentionally or unexpectedly has that result," Ciparick wrote in the decision.

The Supreme Court, the lowest in a three-tiered state system, had ruled that Cook’s insurance company must pay for his defense, while the middle level Appellate Division overturned that decision.

Disagreeing opinions at these lower courts, often stemmed from whether or not the individual judges looked at the incident of Feb. 22, 2002 as a whole event, including activities leading up to the shooting, or just the act of pulling the trigger. Cook admitted in his criminal trial that he meant to shoot Barber but he did not intend to kill him.

Some Appellate Division judges viewed the shooting and Barber’s injury as intentional because he meant to pull the trigger, while Supreme Court Judge Edward Sheridan said that, when waking up that morning, a reasonable person would have not known or expected to be shooting someone in self defense and killing him later that day.

Although each of Cook’s specific actions may have been intentional when viewed in isolation, the incident as a whole and the shooting were unexpected and unforeseen from Cook’s point of view, Sheridan wrote in his decision in 2004.

Courts in other states have already more clearly defined killings resulting from self defense. Nebraskan courts are of the opinion that acting in self defense is not intended to inflict injury but only to prevent injury.

The New York Court of Appeals ruled on Thursday, "It is unnecessary to address" specifically, whether acts of self defense are intentional acts precluding coverage under a homeowner’s policy." However Judge Ciparick did go on, "Suffice it to say that a reasonable insured under these circumstance would have expected coverage."

As for the insurance company’s duty to indemnify, meaning to pay out the $1 million on Cook’s behalf if the civil court determines he is liable for wrongful death, the Court of Appeals judges decided that a determination on indemnification was premature, and may never be needed, depending on the result of the civil trial.

"As to a duty to indemnify, that determination will abide the trial," the court states.

There are many possible conditions and outcomes: the parties might settle and never go to trial; Cook might be found not liable in civil court, and as a result, there would be nothing to indemnify; or if he is found liable, the insurance company, if it’s not exhausted, could file a suit again to the supreme court level starting all over again asking for a declaration about not having to indemnify once a jury has ruled on the wrongful death.

For now, New York’s highest court has left the law ambiguous as to the obligation of insurance companies when it comes to clients’ acts of self defense. However, the court has affirmed that, whenever there is a civil suit claiming negligence, a claim which is "within the embrace of the policy," the insurer must defend its insured "no matter how groundless, false or baseless the suit may be."

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