Worth the expense
By now, you’ve no doubt heard about the 22 women who sued Deshaun Watson alleging sexual misconduct. Recently, Watson filed answers in 14 of the cases describing the evidence that Watson’s attorneys had purportedly already gathered to rebut those allegations, prompting a local sports radio host to marvel at the resources Watson had apparently devoted to defending himself. In explanation, the sports radio host theorized that restoring Watson’s multi-million dollar reputation was worth the expense, suggesting that Watson was bearing the cost of his defense.
Perhaps. People, including attorneys, often assume that liability insurance does not cover certain types of alleged misconduct. Liability policies commonly include exclusions that preclude coverage if the insured intentionally causes injury. People often assume that such exclusions—often referred to misleadingly as intentional act exclusions—preclude both indemnity and a defense for intentional torts, such as civil assault or battery. However, such exclusions—more appropriately referred to as intentional injury exclusions, typically only apply if the insured intended to cause harm or, at the very least, believed his or her conduct substantially certain to injure. Under such a standard, even intentional torts may be covered.
Eight Corners. As to Watson, he may well have a liability policy that would afford a duty to defend for most, if not all, of the cases. Under the eight-corners rule, an insurer’s duty to defend is determined by the coverage provided in the policy and the claims alleged in the petition without regard to their truth or falsity. However, those allegations must be construed liberally in favor of the insured, and all doubts resolved in favor of the duty to defend. Moreover, if the petition potentially includes a covered claim, the insurer must defend the entire case. In this instance, the cases filed against Watson that I have seen consistently allege that he “intentionally or knowingly caused physical contact” with each plaintiff but also only that he “knew, or should have reasonably known,” that the Plaintiff would regard such contact as offensive. Even assuming the truth of the allegations against him, if the facts alleged are liberally construed and all doubts resolved in favor of the duty to defend, Watson’s insurer (or insurers) may have a duty to defend many, if not all, of those cases on the grounds that any physical contact, even if intentional, was not intentionally injurious in that Watson did not necessarily believe to a substantially certainty that the alleged physical contact would be unwanted.