ALBANY — The seven-judge panel sitting on the bench of the state’s highest court questioned two lawyers sitting below them Wednesday afternoon, one representing an insurance giant and the other a local Clarksville man.

The final public debate on a homeowner’s insurance company’s duty to both defend and indemnify a customer for a death that was caused when he acted in self defense, lasted no more than 45 minutes in the grandiose downtown courthouse of the Court of Appeals.

Now the parties await the court’s ruling, one that may change how insurance companies do business in New York.

Alfred Cook, of Clarksville, shot and killed his long-time acquaintance and business associate, Richard Barber, in February of 2002. A jury acquitted Cook of all criminal charges, including second-degree murder, believing that he acted in self defense. Still pending is a civil suit for wrongful death which was brought against Cook four years ago by Barber’s son, Andrew Pryun, who was 13 at the time, so legal action was taken by his mother, Victoria Pryun, on his behalf.

In the civil suit, the Pruyns’ lawyer made two separate actions — one, that Cook’s shooting of Barber was negligent and two, it was reckless and intentional.

Cook’s insurance company, Travelers, a subsidiary of Automobile Insurance Company of Hartford Connecticut, refused to cover Cook’s civil-defense cost and would not pay for any damages that a court may award in the wrongful-death suit. Automobile Insurance commenced action against both Cook and the Pryuns, asking the state’s lowest court in a three-tiered system to declare that, based on Cook’s policy, the company has no obligation to defend or indemnify him.
The company claims two things. One is that the intentional shooting of a person with the stated intent to injure him, even in self defense, is not a covered occurrence under the policy. The other is that the shooting falls outside of the policy’s exclusion for injury that is "expected or intended."

Judge Edward Sheridan of the Supreme Court in 2004 denied Automobile Insurance Company’s motion and partially granted Cook’s cross motion, declaring the insurance company was obligated to provide Cook with a defense. The Appellate division, middle level, reversed Sheridan’s decision in a 4-to-1 vote and granted the insurance company’s motions.

This Wednesday, in the last possible appeal, the Court of Appeals justices questioned whether it was necessary to make a ruling on the issue of indemnification, or if they could, for this case, just decide on the company’s obligation to defend. The law is broader when it comes to the obligation to defend.
Justice Albert Rosenblatt suggested, "Let’s leave the rest for another chapter."

Other issues brought up by the high judges included whether the allegation of negligence alone would bring the cost of defense under Cook’s policy coverage, regardless of what Cook’s intentional actions were. This thought was parallel to the Appellate Level Judge Anthony Cardona’s written dissent.

And, in deciding whether Cook’s actions, shooting and killing, were intentional or accidental, the judges questioned whether they should look at the incident as a whole or in pieces, which is where the previous courts’ approaches differed.

For instance, should they consider the action in question to start with an unexpected intruder entering the home, or with the intentional pulling of the trigger.

The hearing

Justice Albert Rosenblatt said yesterday the question is what relief the court could afford.

He asked attorney Robert Roche, who represents Cook, why the court should deal with deciding on indemnification, rather than just ruling on defense.

Roche responded by saying that he’ll concede that other states’ courts had used granting defense as a half-step. Roche told the court that he is asking for defense at least.

Both attorneys expressed in court or to The Enterprise that they would like the issue of defense and indemnification to be decided now, all at once.
"How would you be unfairly stung if you have to defend"" Rosenblatt asked Michael Hutter, the attorney for Automobile Insurance.
Rosenblatt questioned under what circumstance would the insurer indemnify. "Let’s suppose we allow defend," Rosenblatt said to Roche. "Let’s say you get your defense, then the case goes to a jury"," he said. Rosenblatt said he wants to consider the potential lay out of scenario.
Judge Robert S. Smith expressed that it is unlikely that a civil trial jury will find Cook liable when it’s been decided by the criminal courts that Cook is innocent because he acted in self-defense, unless Smith said, "You get a perverse jury."

Hutter said that Cook may have been justified and may have acted properly but the issue before the court now is coverage.
"He shot him," Hutter said. "Everything was intentional." There is no room for looking for motive, Huttler said.
The court cannot write an exception, Hutter said. The writing of insurance policies is done by the insurance company; it’s not in the court’s jurisdiction to be "re-writing the policy," Hutter said.

Coverage for self-defense is not found in many private homeowner policies, Hutter said. Hutter pointed out that the National Rifle Association is aware of this and encourages its members to seek out and purchase separate self-defense insurance coverage.

If the court allows self-defense as an exception to the policy then the court also has to define self-defense and what that includes, Hutter said. The court would then be rewriting insurance policy, when it’s the insurance companies who write them, he said.
Cook’s policy defines "occurrence," which is covered, as an accident.

The courts have, in deciding whether a loss is the result of an accident, determined from the point of view of the insured whether the loss is unexpected, unusual, or unforeseen.
"If you look at the incident as a whole," Judge Victoria A. Graffeo said, a homeowner wouldn’t necessarily know that someone is going to invade his home, so it is unforeseen.
"Shouldn’t we view this from the standpoint of the insurer"" Graffeo asked Hutter.

In this case, Barber entered Cook’s house and did not leave after being repeatedly asked to do so. The two had been fighting over a period of months about some property and payment for services. Cook claimed that Barber had previously attacked him, fracturing his leg.

On the day of the shooting, Barber came to Cook’s house uninvited and an argument got heated. Cook asked Barber to leave. When he did not, Cook threatened Barber with a small pistol, which Barber laughed at. So Cook retreated to his bedroom and retrieved a larger shotgun. As Barber, who weighed three times as much as Cook, continued to approach Cook, and came within reaching distance, Cook shot Barber in the stomach. Cook testified in criminal court in 2002 that he meant to shoot Barber, because he wanted to stop him from injuring him, but he did not intend to kill him.

Judge Carmen Beauchamp Ciparick said Cook intended to shoot but had unexpected results.

Judge Robert S. Smith asked Hutter about a hypothetical situation, typical of the panel’s questions yesterday.
"If you aim to shoot an intruder" and he turns out not to be an intruder" would there be coverage then"" Smith asked.
"I don’t think so," Hutter said. This court has to decide if it is going to follow a penal concept or a civil concept, he said.
Smith asked Hutter if a homeowner gets out a baseball bat with the intention of hitting an intruder, but misses and hits his friend instead, would that be covered under the policy"

Smith also said that just reading the civil suit complaint and not considering intentions, the allegations of negligence have to be considered.
"The claim of negligence isn’t that enough"" Judge Carmen Beauchamp Ciparick asked Hutter.
"The negligence standard is a reasonable person standard — isn’t it"" Judge Victoria A. Graffeo said.
"There’s no such thing as a negligent assault," Hutter said
"Why not"" Smith responded.

Smith asked Hutter and Roche both separately, hypothetically, if it were possible for the same jury to find Cook criminally innocent but civilly liable.
Hutter said, "yes," adding that other cases show that this can happen. Roche responded that he does not think it is possible for the same jury to find Cook innocent and liable.

Later, in the hallway, Roche told The Enterprise, while this has happened before, as in the O.J. Simpson case, the facts and situations in Cook’s case are different. It is so clearly a case of self defense, he said, which makes it the perfect case to raise the issue of self defense in terms of insurance coverage.

Smith had asked Roche what if the policy clearly wrote no self defense coverage — period.
"No one would buy that," Roche responded it’s a matter of marketing.

Afterthoughts
"The issue finally got spoken to," Roche, told The Enterprise after the hearing.
In his briefs to the court, and in his request for the appeal, Roche had made a point of how New York State courts have never clearly defined the law in terms of self-defense being allowed as an exception to the exclusion "expected or intended" clause of insurance policies.
"It’s time the insurance sense matches up with common sense," Roche said.

Most people, when asked if they would be covered by their insurance company if they acted in self defense in their home, would believe that they would be, he said.
Michael Hutter, the attorney for the insurance company, said, "The court knows it’s a case of first impression." But, he said, that should not create coverage when the policy does not provide for that.
If the courts force the granting of coverage when there is a claim of self-defense, then Huter said, the new issue arises: what will self defense entail" The writing of insurance policies has been and should remain up to the companies, he said; it’s not the place for the courts to be stepping in and re-writing policy.
As for the idea of a policy flat-out stating, "No coverage for acts of self-defense," Hutter said, "That has never been a standard" in the industry. The policy would also then have to lay out what constitutes an act of self-defense, he said.