|July 16, 2010|
Previously published on July 1, 2010
Although beer pong has made a number of curious contributions to American jurisprudence (see, e.g., University of Kansas v. Sinks, 644 F.Supp. 2d 1287 (D.Kan. 2008), involving trademark issues over the sale of Kansas Co-Ed Naked Beer Pong t shirts; Crusselle v. State, 2010 Ga. App. 375 (Ga. Ct. App. 2010), in which beer pong resulted in defendant “driving like a fool”), beer pong has now also, at least indirectly, provided a favorable decision for policyholders.
Copp v. Nationwide Mutual Insurance Company, 279 Va. 675 (Va. 2010) involved a couple of Virginia Tech students celebrating the end of their final exams with a game of beer pong. In a rather predictable situation of “what could go wrong,” the two students were challenged by two others to a game. Arguments, fighting, and injuries ensued, followed by an assault and battery lawsuit. Copp pled no contest to assault and battery, enrolled in anger management classes, and sought coverage under his parents’ homeowner’s policy.
In the inevitable coverage litigation that ensued after insurer denied coverage on “expected or intended” grounds, the issue arose as to whether the determination of an insurer’s duty to defend was limited to an analysis of the “four corners” of the complaint (or, as described by some courts, the “eight corners” - the “four corners” of the complaint and the “four corners” of the policy).
The policy contained an exclusion for bodily injury or property damage “expected or intended” by the insured but also contained an exception for bodily injury “caused by an insured trying to protect persons or property.” The “four corners” of the underlying complaint only alleged intentional conduct so the insurer argued that there was no obligation to defend as the claim was excluded from coverage.
The Virginia Supreme Court, joining the majority of states and departing from its previous decisions, rejected the insurer’s argument and found that an insurer is required to consider extrinsic evidence in evaluating its defense obligations. As the Virginia Supreme Court noted, the self-defense exception is contained within the “four corners” of the policy but extrinsic evidence must be evaluated to determine if the exception would be potentially applicable. The Virginia Supreme Court’s decision also makes logical sense. As a practical matter, when would an underlying plaintiff ever include self defense facts regarding the defendant in its complaint? Thus, if the insurer’s position of not reviewing extrinsic evidence had been accepted, it would have rendered the self defense exception meaningless.
As noted above, thanks at least in part to beer pong, Virginia now joins the majority of states in requiring insurers to consider extrinsic evidence in evaluating the defense obligations owed to their policyholders.