He didn't mean to do it: intent is an issue that must be considered in coverage of claims in many contexts.

When my 9-year-old son beats up his 5-year-old brother, he always denies wrongdoing. But my kids never have sought insurance coverage for their fights (at least so far). Adults are different. In one recent insurance case, the combatant admitted wrongdoing and then demanded insurance coverage. Insurance, however, does not cover intentional injuries. And intent is an issue that often must be considered in claims that are far more sophisticated than fistfights.

As almost all injuries relate in some way to acts that were intentional, courts have often wrestled with the issue of how much intent is required for coverage to be excluded. This issue was addressed in a dramatic, though tragic, context by the United States District Court for the Eastern District of Louisiana, State Farm Fire and Casualty Insurance Company vs. Neyhart, in a May 2004 decision.

In State Farm, the insured was with his wife in a Las Vegas casino. Another man bothered the wife, verbally and physically. The husband then struck the other man. The husband's strike resulted in serious injuries, including the eventual loss of an eye.

The incident was videotaped. There was no dispute about the conduct. In fact, a videotape showed that before the attack, the husband approached a security guard and gave him something. The investigation revealed that the husband gave the guard a $100 bill and told him, "You didn't see anything."

The husband also was charged criminally. He pleaded guilty to battery with substantial bodily harm.

Three months after the plea, a civil suit was brought against the husband. Despite the videotape and criminal plea, the husband demanded coverage under his homeowners policy.

The insurer declined to provide coverage based upon, among other reasons, a provision that the court called "the intentional act exclusion." This provision excluded bodily injury or property damage "which is either expected or intended by an insured, or to any person or property which is the result of willful and malicious acts of the insured."

Coverage was barred if either the insured "expected or intended" the injury or the insured's acts were "willful and malicious."

Reviewing the two components separately, the court addressed whether the husband's actions supported the application of this exclusion.

The court first considered the "expected or intended" component. The insured argued that although he intended to strike the man, he did not intend to cause the severe injuries that resulted. In support of this argument, the insured cited case law indicating that an act is only intentional (in the insurance context) if the insured consciously desires the physical result of his act or knows that that result is substantially certain to follow from his conduct. Another cited Louisiana case provided that the exclusion did not apply to circumstances where a minor injury was intended but a severe injury resulted; but the court found that such case law was limited to injuries that were "freakish."

Given the circumstances in this case, the court was not persuaded by the insured's argument concerning intent. The court concluded that the insured intended to strike and cause pain. But the court declined to grant summary judgment without a trial because the insured's testimony that he did not intend to cause the severe injuries created an issue of fact; though the court stopped just short of applying this first component and called the factual issue "weak".

On the second point, "willful and malicious," the insured was less successful.

The court reviewed dictionary definitions of these terms as well as case law. Although the court found that the insured's intent was important in determining whether the insured "expected or intended" the injury, the court noted that in determining whether an act is "willful and malicious," intent is not material. Emphasizing the videotape and the criminal plea, the court found that the evidence proved that the act was "willful and malicious."

Principles barring coverage for intentional acts or injuries arise in many contexts. Intent can be a factor barring coverage for issues far more complicated than brawls. Many insureds, like this insured, argue that coverage should be provided when the specific injury was not intended. Resolving this issue depends upon the case law, policy language, and most important, the facts.

The peculiarity of this case was the facts. The facts presented a terrible case for insurance coverage. In many circumstances--not only fistfights--a criminal conviction will be fatal to a coverage claim concerning the conduct.

Alan S. Rutkin, a Best's Review columnist, Uniondale, N.Y. He can be reached at [e-mail].