Category: Blog

Intoxication And The “Intentional Acts” Exclusion Clause

Regardless of the insured’s intoxicated state, the act of striking another is intentional, that such an act is not a covered occurrence under the policy in question here, and that such incidents are subject to a properly drafted “intentional acts” exclusion clause. Consequently, we hold that the liability insurer in this instance is under no duty to defend or indemnify its insured in connection with an action seeking damages stemming from the insured’s intentional infliction of bodily injury, even when the insured was intoxicated or believed he acted in self-defense.

The insurance agreement in this case obligates State Farm to defend and indemnify the defendant in connection with actions brought against him for damages caused by an “occurrence.” The policy defines the term “occurrence” as an accident resulting in bodily injury. Although the policy does not define the term “accident,” a common definition of the term is “a happening that is not expected, foreseen, or intended.” In addition, the policy contains exclusionary language precluding coverage for bodily injury or property damage “(1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured.”

This court dealt with a similarly worded insurance policy. This court observed that “‘intent’ or ‘intention’ denotes a design or desire to cause the consequences of one’s acts and a belief that given consequences are substantially certain to result from the acts.” Applying this definition of intent, we concluded that a homeowner’s liability insurance policy did not cover the insured’s actions of fatally shooting his wife and two of her friends, despite a claim that the insured did not intend his actions because he acted in a psychotic fit of rage. We also noted that the insured’s “supposed inability to control his acts [was] not the same as an inability to intend his acts.”

We take this opportunity to extend our holding and reject appellants’ argument that the dependant was unable to act intentionally as a result of his voluntary intoxication. Whether he thought he was God or his evil master is of no matter because he admittedly struck the victim in the eye with the desire of getting away from him. This is a non-accidental intentional act even if he did not intend to harm him. Thus, we conclude that his act of striking the victim is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. In this, we recognize his claims that the intentional-acts exclusion does not apply because, given his advanced state of intoxication, he did not intend to injure the victim and that, because he believed he acted in self-defense, his conduct was not malicious. We reject this line of argument because the exclusion properly dovetails with the reasonable construction of the policy that an occurrence requires an accidental event. Accordingly, State Farm is not obligated to defend or indemnify the defendant  with respect to any judgment obtained against him by the victim.

Applying this court’s holding, we conclude that . . . notwithstanding the claim that he was too intoxicated to intend the acts and resulting injuries to [the victim], the intentional-act exclusionary clause applies to negate coverage.

 

Medical Malpractice Claims In Nevada

Medical malpractice can be committed against you or a family member by any provider of health care and treatment including: anesthesiologist, hospital, clinic, psychiatrist, dentist, doctor, nurse or any other health care provider. In , the act of medical malpractice occurs when a  health care provider causes a patient to be injured because of the lack of skill and competence which is normally used to treat and care for a patient. The level of skill is known as the “standard of care.” A  medical malpractice complaint will allege that the actions of the health care provider fell below the required “standard of care” for that type of professional. This is another way of saying that the average professional (in that area of practice) would have known better and would not have committed the act which caused the injury.

A medical malpractice (Med-Mal) lawsuit usually requires an attorney to use several experts to prove that the health care professional did not meet the standard of care for that specific area of medical practice. A  medical malpractice claim is typically expensive to litigate because many experts are required to prove that the care of the patient was below the normal standard. Medical malpractice claims are subject to a statutory cap which limits certain types of damages available to patients. The high costs of using experts and the limit on certain damages may cause some  lawyers to take fewer medical malpractice cases as part of their personal injury law practice. An attorney may have an expert evaluate your case early in the process, so that both you and the attorney can learn whether a viable claim can be made against the negligent party.

If you or a member of your family sustained injuries because of the medical malpractice of a health care professional, you can get a free consultation an attorney of our law firm. We provide legal representation for residents throughout the area,

 

Negligent Infliction Of Emotional Distress

This case is governed by State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). Eaton requires that HN1a bystander plaintiff be closely related to the victim of an accident, be located near the scene of the accident, and suffer a shock resulting from direct emotional impact stemming from the sensory and contemporaneous observance of the accident. Id. at 716, 710 P.2d at 1377-78. The majority of the cases on negligent infliction of emotional distress have involved automobile accidents, including Eaton. Thus, some of the language of these cases cannot appropriately be applied to the negligence of a pharmacist dispensing drugs. In addition to debating whether a plaintiff is a bystander or what the plaintiff actually observed, we should to look to the basic principles underlying the tort of negligent infliction of emotional distress.

In Eaton, this court discussed some of the history of the tort of negligent infliction of emotional distress due to injury to another. This court embraced the ruling in Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (Cal. 1968) by saying:

The [Dillon] court held that liability could be circumscribed in these cases, as in all tort cases, by the application of the general principles of negligence. 441 P.2d at 924. The trial courts could determine whether the accident and the harm to the bystander was reasonably foreseeable and “thus mark out areas of liability, excluding the remote and unexpected.” 441 P.2d at 921. We agree with the reasoning of the California court. We “see no good reason why the general rules of tort law, including the concepts of negligence, proximate cause, and foreseeability, long applied to all other types of injury, should not govern the case before us.” 441 P.2d at 924 . . . See also II Harper and James Sec. 18.4, p. 1039 (“mechanical rules of thumb which are at variance with these [general] principles [of tort law] do more harm than good.”)

Eaton, 101 Nev. at 713, 710 P.2d at 1376.

Under this reasoning, it is not the precise position of plaintiff or what the plaintiff saw that must be examined. The overall circumstances must be examined to determine whether the harm to the plaintiff was reasonably foreseeable. Foreseeability is the cornerstone of this court’s test for negligent infliction of emotional distress. Id. at 715.

In this case, a daughter purchased prescription medication for her mother. The daughter then initiated and continued administration until her mother was rendered comatose. In effect, because of the pharmacist’s negligence, the daughter poisoned her mother. Under these facts, it was entirely foreseeable that the drug would significantly harm the actual patient and that a close relative would continue administration until the ultimate catastrophic effect was realized.

Of course, the plaintiff still faces the burden of proving her damages and proving that they were the proximate cause of the pharmacist’s negligence. The jury should be allowed to make the determination of whether [the]’ claim is meritorious.