Strategies for recovery in domestic violence tort cases.

Recognition of the pervasiveness of domestic violence has led to changes in attitudes and the law that increase the chances of success in these cases.

With high-profile cases such as the O.J. Simpson criminal and civil cases, domestic violence has once again been placed at the forefront of the nation's consciousness. Fortunately, it also has been placed at the forefront of the legal profession's consciousness.

Domestic violence includes violence or abuse by one person against another where the two are married or living in a social relationship legally recognized by the jurisdiction in which they live. Although domestic violence has marred civilization throughout history, its private and sensitive nature has until recently been kept hidden from the public.

The interest in this issue is the result not only of the recent high-profile cases, but also of staggering statistics that can no longer be ignored. According to one survey, 6 out of every 10 married couples have experienced violence at some point during the marriage another study reports that violence is the leading cause of injury to women ages 15 through 44 years old.(1) Only a small percent--estimated between 1 percent and 5 percent--of domestic violence is committed against men.(2)

Traditionally, most domestic violence went unpunished and uncompensated because of interspousal immunity, which prevented lawsuits between spouses arising out of personal injury or death. Eventually, many states created exceptions to interspousal immunity. Presently, only Hawaii still recognizes it without exceptions. At least 38 states have completely abolished it and its partial abrogation in the other states has opened the door for domestic violence victims seeking redress.(3)

Causes of action are numerous and include wrongful death, assault and battery, defamation, false imprisonment intentional and negligent infliction of emotional distress, intentional interference with child custody, and tortious infliction of avenereal disease. Assault and battery and infliction of emotional distress appear to be the most common actions.

Intentional infliction of emotional distress is less commonly asserted than assault and battery but has been the subject of numerous appellate decisions because of its varied and somewhat imprecise standards. Which cause of action is filed is relatively unimportant with respect to collecting judgments except in wrongful death actions.

Often, liability is not at issue, and once damages are assessed, attention turns to the collectability of the judgment Judgments may be satisfied through assets currently on hand or through those a defendant has a reasonable expectation of obtaining in the future. As in any other case, sources include cash, wages, annuities, securities, and real estate. With respect to future or potential assets, sources include inheritances, pensions, and interests in estates. In high-profile cases, financial intervention by a perpetrator's family to avoid prosecution or publicity may be a source of compensation.

These judgments are valid in other states if properly recorded. Because the judgments are for intentional crimes and torts, they are generally not dischargeable in bankruptcy and are almost always renewable--there is no time limit for collection.

Wrongful death actions

The O.J. Simpson civil case focused attention on wrongful death actions in which a husband is accused of killing his former wife. While there was no common law action for wrongful death, every state now has a statute providing for one.

Essentially, these laws authorize civil actions where the victim could have maintained an action had she lived. Most laws allow actions for both intentional and negligent acts or omissions that cause death.(4)

A policy insuring the life of the deceased is often the principal or only asset of the deceased's estate, and the policy is sometimes the focus of a wrongful death action. Thus, counsel may be employed by potential beneficiaries to challenge a husband's right to inherit death benefits on the wife's life.

Interspousal immunity no longer bars wrongful death suits against surviving spouses. Moreover, most courts have rejected claim preclusion based on criminal proceedings. Generally, an acquittal has no preclusive effect on a later civil action.(5) Courts have realized that different parties, interests, and burdens of proof outweigh any judicial economy.

There is one exception to preclusion in some jurisdictions. If a state's "slayer statute" requires a court to consider a criminal acquittal as conclusive evidence on the wrongfulness of a spouse's actions, an acquittal can have a preclusive effect. For instance, a California court was forced to examine the following slayer Statute:(6)

No person who has unlawfully and intentionally

caused the death of a decedent ... shall be

entitled to succeed to any portion of the estate

or to take under any will of the decedent .... A

conviction or acquittal on a charge of murder

or voluntary manslaughter shall be a conclusive

determination of the unlawfulness or

lawfulness of a causing of death, for the

purposes of this section.

The court found that the statute forced it to give preclusive effect to the wife's acquittal of her husband's death, thus barring retrial on the issue of the cause of death. Based on the acquittal, the wife was held to be entitled to insurance proceeds.

A different result was reached in an Oklahoma case.(7) A husband died as a result of injuries sustained during an incident of domestic violence. The defendant-wife was tried for first degree murder and acquitted. She then asserted in a declaratory action that she was entitled to the life insurance proceeds from her husband's policy. Oklahoma's slayer statute provided:

No person convicted of murder ... or

manslaughter ... and no beneficiary of any policy

of insurance ... payable upon the death or

disability of any person, who in like manner takes

or causes or procures to be taken, the life

upon which such policy or certificate is issued ...

shall take the proceeds of such policy.(8)

Although the wife argued she was entitled to the insurance proceeds because she had not been convicted, the court held the statute did not prevent application of the state's common law doctrine barring one who caused the death of another from profiting from the wrongful act.

Lack of consent

Another potential cause of action lies where insurers unreasonably imperil the lives of their insureds by issuing or maintaining life insurance policies. Many jurisdictions recognize a general rule that a life insurance policy issued without the consent or knowledge of the insured is against public policy and unenforceable.(9)

Further, every jurisdiction requires that a person taking out a policy on another person's life have an insurable interest that is, the person will suffer a loss if the insured dies. The relationship of husband and wife has been held to establish this interest.(10)

Negligent insurance coverage

Claims raise difficult causation issues, requiring courts to determine whether life insurance coverage or an intervening criminal act caused the death. If the insured is dead or threatened with death largely as a result of coverage, the insurer may bear some responsibility.

Thus, the Florida Supreme Court has recognized a cause of action for the negligent failure to cancel a policy if the beneficiary attempts to murder the insured when the insurer actually knows this.(11) This decision was the first in which the court did not predicate its finding against an insurance company exclusively on either the absence of the insured's consent or the lack of an insurable interest.

In this case, a wife purchased $130,000 in insurance with double indemnity on her husband's life. She secured her husband's signature on the application by telling him she was applying for health insurance coverage. Despite the couple's $9,000 annual income, the wife paid more than $600 per month in premiums.

The husband, who did not know of the policy, overheard his wife plotting to kill him. He contacted the insurance agent and reported the plot

The company neither investigated nor canceled the coverage. Later, the wife and an accomplice kidnapped the husband and were on the verge of drowning him when law enforcement officers intervened.

The court, limiting its holding to where an insurer has actual notice of the beneficiary's murderous intent, found that the insurance company should have canceled the policy, primarily so as not to imperil the insured's life but also to avoid becoming unjustly enriched by the premiums.(12)

Crime victim compensation

Since the early 1960s, virtually all states have established victim compensation funds to pay benefits to crime victims or their survivors. In some states, however, there are substantial delays in awarding compensation due to a lack of funds, claim processing problems, or both. Traditionally, domestic violence victims were excluded from recovering under these funds for various reasons, including that the offender would indirectly benefit by not having to pay the injured spouse's medical bills.

In 1988, however, the Victim of Crimes Act(13) was amended to provide that state programs had to compensate domestic violence victims in order to be eligible for federal funding. Most states responded by amending their compensation laws, instead of categorically denying eligibility based on familial relationship or living arrangement, most states shifted their focus to deny claims only if the award would unjustly enrich or benefit the offender.

Apparently in response to the growing trend to acknowledge the special circumstances of domestic violence victims, a few states have specifically included domestic violence victims as eligible claimants under their victim compensation statutes. For instance, Wyoming includes acts resulting from domestic violence in its definition of criminal acts, and the eligibility provisions provide that no victim or dependent will be denied compensation solely on the basis that he or she is a relative of, or was living with, the offender.(14) A claim may be denied, however, if an award would unjustly benefit the offender.

Similar provisions can be found in Texas,(15) New Hampshire,(16) and New York.(17) Family members are eligible unless the offender would receive a substantial economic benefit in which case the award may be reduced or structured to remove the benefit to the offender. Some states, such as California,(18) do not limit eligibility based on a relationship or unjust enrichment to the offender so that, presumably, domestic violence claims are handled like any other claim.

Crime victim compensation is capped for all victims in virtually every state. Domestic violence victims in 9 states are eligible to receive $25,000 or more.(19) Twenty-one states offer between $10,000 and $25,000,(20) and 20 states limit compensation to $10,000 and under.(21) In all cases, awards are limited to losses not reimbursed by insurance or other sources.

Without exception, these statutes require (1) a report to the police about the offense and (2) cooperation with law enforcement personnel in prosecuting the criminal case. In addition, most states cap attorney fees associated with representing a crime victim before the compensation board.

Intentional act exclusions

In many cases, intentional acts are excluded from coverage under insurance policies. Because home owners' policies are designed to protect the insured from liability for accidents or unexpected injuries to others, they usually exclude liability for expected or intended injuries. In addition, these policies frequently contain exclusions for intrafamily torts. Underlying these exclusions are public policy considerations that insured perpetrators would be rewarded if their carriers paid damages to victims of their criminal acts.(22)

The intentional act exclusion is intensely fact-based--whether a person intended to injure another is sometimes clear, sometimes inferable, and sometimes speculative. Because policy language plays a paramount role in judicial interpretation of exclusionary clauses, it is difficult to draw any general conclusions on how the exclusion will operate.

In many cases, there may be an intent to act but not to bring about a particular injury. Under the Restatement (Second) of Torts, a person generally intends the probable consequences of his or her intentional acts.(23) Therefore, under insurance law, a person must intend both the act and the injury for the intentional act exclusion to apply. There are many cases in which state courts have rejected exclusions or have let the jury decide if the injury was unexpected.(24)

Some cases, although not involving domestic violence, include the commission of crimes with firearms. One court has held that it is generally possible to find accidental results following intentional acts.(25)

In one case, the Alabama Supreme Court held that a standard "expected and intended" injury exclusion in a homeowner's policy did not prevent coverage where a man shot and Bled his brother during a dispute.(26) The court looked at the subjective intent of the shooter and asked whether, in light of all the circumstances, he really expected or intended to shoot his brother. The court ruled that this was a question of fact for the jury. However, merely alleging that an obvious assault was based on negligence has been rejected as a transparent attempt to trigger insurance coverage.(27)

Frequently, if a perpetrator is unable to form an intent to injure, the exclusion does not bar recovery. For instance, insanity has often been held to prevent an ability to form this intent.(28)

This doctrine has been applied where a husband murdered his wife and then committed suicide. The wife's parents and siblings sued the husband's liability carrier. The court held that evidence of the husband's insanity negated the expected or intended injury exclusion.(29)

A minority of courts refuse to recognize insanity exceptions, usually holding that "intent" should be read narrowly, and, if there was an intent to injure, the perpetrator's mental state is not relevant.(30)

Many courts reason that becoming intoxicated or high on drugs is voluntary and, thus, should not be allowed to defeat the clear language of the exclusions.(31)

Finally, a number of state courts have held these exclusions do not apply where insureds act in self-defense or reasonably believe they need to defend themselves.(32)

Then there are the cases--but not very many--in which a perpetrator of limited means unexpectedly comes into some money. These "windfall assets" may be available to the victim or his or her survivors.

For example, Roy Wilson pleaded guilty to felony sexual assault against a church school worker. While serving his sentence, he won $5.86 million in the lottery. His victim's lawsuit was settled when he agreed to pay $990,000 for counseling, lost wages, and emotional pain and suffering.(33) Although this case did not involve domestic violence, it shows the possibility of satisfying a judgment through windfall assets.

In another case, a man serving a 20-year sentence for the murder of a young woman won a new car in a promotional drawing. The victim's parents agreed to accept the car in settlement of their wrongful death action.(34)

Although infrequent, windfall assets are sometimes available and should not be overlooked.

Of course, not all of these cases result in large awards or collectible judgments. But the abrogation of spousal immunity laws, the establishment of victim compensation funds, and the public's growing awareness Of domestic violence have helped create an atmosphere that is more favorable to recovery Hard work, imagination, and perseverance in domestic violence cases can lead to a number of substantial, collectible awards.

Notes

(1.) See Antonia C. Novello et al., From the Surgeon General, U.S. Public Health Service, 267 JAMA 3132 (1992) (citing the Uniform Crime Report of the Federal Bureau of Investigation). Estimates suggest that up to 16 million women are abused each year by their husbands, ex-husbands, boyfriends, or lovers. Michael Slade et al., Application of Forensic Toxicology to the Problem of Domestic Violence, 36 J. FORENSIC SCI. 708,708 (1991).

(2.) PATRICK A. LANGAN & CHRISTOPHER A. INNES, U.S. DEP'T OF JUSTICE, PREVENTING DOMESTIC VIOLENCE AGAINST WOMEN (1986).

(3.) Interspousal immunity is fully abrogated in Alabama, Alaska, Arkansas, California, Colorado Connecticut Delaware, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexi New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

(4.) LEONARD KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE, CONFLICT AND SEXUAL ABUSE [sections] 1.23, at 42 (1989 & Supp. 1996).

(5.) See United States v. Burris, 103 F Supp. 690 (D. Md.), affd, 200 F2d 106 (4th Cir. 1952); Tidwell v. Booker, 225 S.E.2d 816 (N.C. 1976); Hussey v. Cheek, 228 S.E.2d 519 (N.C. Ct. App. 1976).

(6.) Wilson v. Wilson, 144 Cal. Rptr. 180,183 (CL App. 1978).

(7.) State Mut. Life Assurance Co. of Am. v. Hampton, 696 R2d 1027 (Olda. 1985).

(8.) Id. at 1030.

(9.) 43 AM. JUR. 2d Insurance [sections] 261, at 336 (rev. ed. 1982).

(10.) 43 AM. JUR. 2d Insurance [subsections] 974, 976 (rev. ed. 1982).

(11.) Life Ins. Co. of Am. v. Lopez, 443 So. 2d 947 (Fla. 1983).

(12.) The Lopez court was particularly incensed at the insurer's lack of concern for the obvious inability of the family to make the premium payments for an extended period of time. Id. at 949; see also Bodine v. Federal Kemper Life Assurance Co., 912 F.2d 1373 (11th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

(13.) 42 U.S.C. [sections] 10602(1994).

(14.) WYO. STAT. ANN. [subsections] 1-40-102(a)(iii), 1-40-106(b)(i)(1988).

(15.) TEX. CRIM. PROC. CODE [sections] 56.41 (West Supp. 1997).

(16.) N.H. REV. STAT. ANN. [subsections] 21-M8-h(IV), 21-M8-j(V) (Supp. 1996).

(17.) N.Y. EXEC. LAW [sections] 31(4) (Consol. 1996).

(18.) CAL. GOV'T CODE [sections] 13964 (West 1992).

(19.) Alaska, California, Maryland, Minnesota, New York, Ohio, Pennsylvania, Washington, and Wisconsin. Maximum Benefits Paid to Crime Victim, 4 CONG. Q. RESEARCHER 637 (1995).

(20.) Connecticut, Delaware, Idaho, Illinois, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon Rhode Island Texas, Utah, Virginia, and West Virginia. Id.

(21.) Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Hawaii, Indiana, Louisiana, Maine, Mississippi, Missouri, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, Vermont and Wyoming. Id.

(22.) This viewpoint, however, is at odds with a public policy that views the needs of the victim as paramount See Laurie Marie M. V. Jeffrey T. M., 559 N.Y.S.2d 336 (App. Div. 1990), affd, 575 N.E.2d 393 (N.Y. 1991). For a case involving joint insurance obligations and a spouse with criminal intent and an innocent spouse, see Spence v. Allstate his. Co., 883 S.W.2d 586 (Tenn. 1994).

(23.) RESTATEMENT (SECOND) OF TORTS [sections] 8A (1965).

(24.) Pique v. Saia, 450 So. 2d 654 (La. 1984); Quincy Mut Fire Ins. Co. v. Abernathy, 469 N.E.2d 797 (Mass. 1984); Bolin v. State Farm Fire & Cas. Co., 557 N.E.2d 1084 (Ind. Ct. App. 1990); Aetna Cas. & Ins. Co. v. Brathwaite, 751 P.2d 237 (Or. Ct App.), review denied, 757 P2d 422 (Or. 1988).

(25.) State Farm Fire & Cas. Co. v. Irene S., 526 N.Y.S.2d 171 (App. Div.), appeal dismissed per curiam, 531 N.E.2d 660 (N.Y. 1988).

(26.) Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921 (Ala. 1984).

(27.) Smorch v. Auto Club Group Ins. Co., 445 N.W.2d 192 (Mich. Ct. App. 1989).

(28.) Arkwright-Boston Mfrs. Mut Ins. Co. v. Dunkel, 363 So. 2d 190 (Fla. Dist Ct App. 1978); State Farm Fire & Cas. Co. v. Wicka, 461 N.W.2d 236 (Minn. Ct. App. 1990), modified, 474 N.W.2d 324 (Minn. 1991).

(29.) Von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So. 2d 283 (La. Ct. App.), cert. denied, 362 So. 2d 802 (La. 1978).

(30.) Allstate Ins. v. Cruse, 734 F. Supp. 1574 (M.D. Fla. 1989) (applying Florida law); Eubanks v. Nationwide Mut. Fire Ins. Co., 393 S.E.2d 452 (Ga. Ct. App. 1990); Shelter Mut. Iris. Co. v. Williams, 804 P.2d 1374 (Kan. 1991); Aetna Cas. & Ins. Co. v. Sprague, 415 N.W.2d 230 (Mich. Ct. App. 1987).

(31.) State Farm Fire & Cas. Co. v. Morgan, 368 S.E.2d 509 (Ga. 1988); Allstate Ins. Co. v. Carioto, 551 N.E.2d 382 (Ill. App. Ct.), appeal denied, 555 N.E.2d 374 (Ill. 1990); American Mut Family Ins. Co. v. Peterson, 405 N.W.2d 418 (Minn. 1987).

(32.) See, eg., Farmers & Merchants Ins. Co. v. Cologna, 736 S.W.2d 559 (Mo. Ct. App. 1987).

(33.) Sturgeon, Lottery Winner Settles Sex Suit, Will Pay Victim, VENTURA COUNTY (CAL.) STAR FREE PRESS, July 7, 1990, at 14.

(34.) Parents Take Car Drop Suit, USA TODAY, June 4, 1984, at C6.

David T. Austern, ATLA's former director of education, is general counsel of the Marville Personal Injury Settlement Trust in Fairfax, Virginia, and president of the National Victim Center, a not-for-profit crime victim advocacy organization.