Understanding the CGL Expected or Intended Injury Exclusion

speaker1

Welcome, everyone, to another episode of Total CSR's Insurance Education Podcast! I'm your host, [Name], and with me today is [Name], my fantastic co-host. Today, we're diving into the CGL Expected or Intended Injury exclusion. It's a critical part of Commercial General Liability insurance, and we’re going to break it down for you. So, [Name], let's start with the basics—what exactly is this exclusion, and why is it so important?

speaker2

Hey, thanks for having me, [Name]! I’m really excited to dive into this. So, the Expected or Intended Injury exclusion is a clause in CGL policies that says if the insured meant to cause bodily injury or property damage, or if they expected it to happen, the policy won't pay for it. It’s a way to ensure that insurance covers accidental losses, not deliberate acts.

speaker1

Exactly, and this isn’t just a moral stance. It’s also an actuarial and public-policy line. If insurance companies paid for willful violence or deliberately destructive acts, premiums would skyrocket, and bad actors could weaponize insurance to fund their misconduct. This exclusion keeps the pool sustainable for genuine accidents. Now, where exactly does this exclusion sit in the policy, [Name]?

speaker2

Hmm, it’s found in Coverage A – Bodily Injury and Property Damage Liability of the ISO CGL form, like CG 00 01. It specifically carves out bodily injury or property damage that is expected or intended from the standpoint of the insured. But there’s a key carve-back: bodily injury caused by the use of reasonable force to protect persons or property remains covered. That’s important for scenarios like bouncers or security personnel.

speaker1

That’s a great point. And there are a couple of other policy features that interact with this exclusion. First, the occurrence definition. Coverage A requires bodily injury or property damage caused by an accident. If something is truly intended, many courts will say it wasn’t an accident to begin with, so you can lose coverage on the occurrence definition even before reaching the exclusion. The separation of insureds condition is also crucial. The policy treats each insured separately, so the intent of one insured is not automatically imputed to another, unless an endorsement changes that language. Now, let’s talk about the difference between intended and expected injury. How do insurers and courts interpret these terms?

speaker2

Ah, that’s a nuanced topic. Intended injury means the insured acted with the purpose of causing that injury. For example, a bar owner who walks across the room and punches a patron intended to cause bodily injury. Expected injury is about knowledge of near-certain consequences. Even if you don’t want the result, if a reasonable person in your shoes knew the injury was practically inevitable, courts will say you ‘expected’ it. For instance, deliberately pushing someone down stairs to scare them—hard to claim you didn’t expect injury.

speaker1

Right, and there are some interesting nuances. Some jurisdictions infer intent for harms that are the predictable outcome of the act, while others require stronger proof of purpose or near certainty. The eggshell plaintiff rule also comes into play. If you intended a minor injury but the person suffers a severe outcome due to a pre-existing condition, many courts still treat the severe injury as intended. Now, let’s talk about the self-defense carve-back. This is where the policy restores coverage for bodily injury resulting from the use of reasonable force to protect persons or property. Can you explain the practical tests for this, [Name]?

speaker2

Sure! There are three practical tests. First, the reasonableness of force relative to the perceived threat. Second, proportionality—non-deadly force for non-deadly threats. And third, the force must end when the threat ends. If the force is excessive, the carve-back can evaporate, and the exclusion or the occurrence definition reasserts itself. This is particularly important in bouncer or security scenarios where the use of force must be proportional and reasonable.

speaker1

Absolutely. Now, let’s look at some common agency scenarios and how this exclusion applies. For example, in a bar or restaurant, a patron refuses to leave, and a bouncer escorts them out. If the bouncer uses measured holds and the patron trips, the incident can be accidental, and coverage is likely. But if the bouncer, after the threat is over, throws punch after punch, those injuries look intended, and the exclusion applies. Another scenario is a contractor dispute at a jobsite. If the general contractor smashes a subcontractor’s tools in anger, that property damage is a deliberate act, and the exclusion bars coverage. What about negligent hiring or supervision when an employee assaults someone, [Name]?

speaker2

That’s a tricky one. Two claims can be alleged: the assault (intentional) and the employer’s negligence in hiring or supervision (potentially not intentional). Some courts hold that because the injury flows from an intentional act, the exclusion or the absence of an occurrence defeats both theories. Others allow the negligent supervision claim to proceed if the employer did not expect or intend the injury and the policy uses ‘the insured’ language with the separation of insureds. Endorsements can change the outcome, like assault and battery exclusions, which often eliminate the negligence workaround.

speaker1

Exactly. And when it comes to additional insureds, like a subcontractor’s employee assaulting someone, the upstream general contractor, who is an additional insured under the sub’s policy, may still have coverage if the form uses ‘the insured’ and the GC did not intend the injury. But if the form uses ‘any insured’ wording or bars assault and battery entirely, coverage can be denied. Now, let’s talk about some agent and CSR guidance at placement and claim time. What are some key points to consider, [Name]?

speaker2

At placement, it’s crucial to read the exclusion language and endorsements carefully. ‘The insured’ vs. ‘any insured’ changes outcomes. Assault and battery or abuse exclusions are common in hospitality, security, entertainment, and habitational risks. Vetting operations and controls is also important. For venues with hands-on security, document use-of-force training, de-escalation protocols, and incident reporting. For contractors, emphasize conflict management and jobsite supervision. And mind the separation of insureds condition when structuring additional insured coverage. At claim time, facts first. Who did what, when, and why? Was the threat ongoing? Were there witnesses, video, or policy violations? Reasonableness is the hinge. Tender broadly and early, and expect reservation of rights. Carriers often defend while investigating intent. Coverage can split: defense for negligence counts, no duty for assault counts.

speaker1

Great advice. And let’s not forget some common pitfalls that can kill coverage. Overconfidence in ‘negligence’ labels is one. Plaintiffs may style an assault as ‘negligent supervision,’ but courts look at the substance. If the harm is inextricably tied to intentional conduct, the exclusion or occurrence requirement often prevails. Ignoring endorsements is another pitfall. A clean ISO exclusion with ‘the insured’ can leave room for innocent insureds or additional insureds, but an assault and battery or ‘any insured’ endorsement can close those doors entirely. Now, how does this exclusion compare between Coverage A and Coverage C (Medical Payments)?

speaker2

Medical Payments (Coverage C) is no-fault, but it still excludes injuries to people injured at the direction of the insured or where another specific exclusion applies. Don’t assume Med Pay salvages an intentional-harm scenario; it often won’t. So, it’s important to understand the nuances between these coverages and how they interact.

speaker1

Absolutely. The bottom line for agencies is to emphasize to clients that insurance pays for accidents, not for what you meant to cause. In higher-risk classes, negotiate carefully, watch ‘any insured’ language, and assault and battery exclusions. Train staff who might use force to de-escalate first, document always, and ensure any force is reasonable and proportional. In claims with mixed allegations, tender early and let defense counsel shape the narrative while facts develop. If you internalize these principles, you’ll advise clients honestly, set realistic expectations when tempers flare, and keep avoidable E&O surprises off your desk. Thanks, [Name], for joining me today. It’s been a great discussion!

speaker2

Thank you, [Name]! It’s been a pleasure. I’m sure our listeners have learned a lot and will be better equipped to navigate these complex insurance issues. Thanks for tuning in, everyone, and don’t forget to subscribe for more insightful episodes!