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When Harm is Inherent in the Nature of the Act it is Intentional
Post 5237

Hitting a Person in the Face is an Intentional Act

In Unitrin Auto and Home Insurance Company v. Brian C. Sullivan, et al., George A. Ciminello, No. 2022-01607, Index No. 21632/14, Supreme Court of New York, Second Department (November 19, 2025) George A. Ciminello was injured when struck in the face by a cup filled with liquid, thrown from a moving vehicle operated by Brian C. Sullivan, with Robert Harford as the passenger who threw the cup. The vehicle approached Ciminello at about 30 mph, from 2 to 10 feet away, and Harford extended his arm to make contact. The cup splintered upon impact.

Ciminello sued Sullivan and Harford (among others) in Supreme Court, Suffolk County (Index No. 21023/05), alleging intentional torts (willful, wanton, and intentional acts). Sullivan and Harford later conceded liability on the intentional tort claim before a damages trial.

Insurance Policy:

Unitrin Auto and Home Insurance Company insured Sullivan. The policy covered "occurrences," interpreted as accidents.

Declaratory Judgment Action (2014): Unitrin sued Sullivan, Harford, and Ciminello seeking a declaration of no duty to indemnify Sullivan, arguing the incident was intentional, not an accident.

Procedural History:

Sullivan and Harford defaulted (failed to appear or answer). Unitrin moved for summary judgment in 2015; granted in 2016 but reversed on appeal in 2020 (Unitrin Auto & Home Ins. Co. v Sullivan, 179 A.D.3d 970), finding a triable issue on whether harm was inherent in the act.

Nonjury trial held on whether the incident was an "accident." Trial court (March 1, 2022) ruled it was not an accident and declared no indemnification obligation. Ciminello appealed; the Appellate Division, Second Department, affirmed on November 19, 2025.

Evidence of Intent:

Sullivan testified he and Harford planned to fill a cup with liquid and throw it at "somebody." They executed the plan intentionally. Post-incident reactions by Sullivan and Harford indicated the contact was not unintentional.

Key Legal Principles Applied

An insurer must indemnify only if the insured is liable for a covered loss under the policy. Here, coverage required an "occurrence," meaning an accident.

Viewed from the insured's (Sullivan's) perspective, an accident is something unexpected, unusual, and unforeseen. Accidental results can stem from intentional acts if the harm was unintended.

Inherent Harm Exception:

If harm is "inherent in the nature of the intentional act," the act is deemed to have intentionally caused the harm, negating accident status. The court found the harm (facial injury from close-range cup throw) was inherent in the planned assault.

Burden of Proof:

As the party seeking declaratory relief, Unitrin bore the burden to prove no coverage.

COURT'S CONCLUSION

Unitrin met its burden; the intentional planning, execution, and inherent risk of harm meant the incident was not an accident, relieving Unitrin of indemnification duty. The judgment was affirmed with costs.

ZALMA OPINION

When Sullivan testified he and Harford planned to fill a cup with liquid and throw it at "somebody " and fulfilled their plan that caused damage to Ciminello the admitted there was no "occurrence" as defined by the policy and the court concluded that the insurer had no obligation to defend or indemnify Sullivan and/or Harford who managed to avoid arrest for battery, a felony.

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