In a commercial general liability (CGL) policy, the expected or intended injury exclusion removes coverage when the insured meant to cause harm or expected harm with a high degree of certainty. A Minnesota court may also infer intent to injure when the insured acted in a calculated way or knew or should have known that harm was substantially certain to result. Under Minnesota law, an intentional act that causes unintended injury is not excluded on that ground, and neither is careless conduct whose harm was merely foreseeable. The insurer has to prove the exclusion applies, and it should defend any claim that is arguably covered while it contests the rest.

No Minnesota statute defines this exclusion. Its meaning comes from Minnesota Supreme Court decisions reading the policy language, and two statutes govern how a denial is handled and tested: Minn. Stat. § 72A.201 and Minn. Stat. § 555.02. This page is written for owners and executives of Minnesota companies whose CGL insurer has raised, or may raise, the exclusion against a claim of bodily injury or property damage. If your policy was issued in another state, that state’s courts may read it differently. For the steps after a written denial, see my page on responding to a denial under the intentional acts exclusion. Both pages are part of my Minnesota business compliance materials.

What does the expected or intended injury exclusion say?

The CGL exclusion the Minnesota Supreme Court has construed removes coverage for bodily injury or property damage “expected or intended from the standpoint of the insured.” Minnesota courts read it narrowly against the insurer, and the insurer carries the burden of proving that it applies.

That wording appears in the CGL policy the Minnesota Supreme Court construed in Travelers Indemnity Co. v. Bloomington Steel & Supply Co., 718 N.W.2d 888 (Minn. 2006). The court restated two rules that govern disputes over it: “While the insured bears the initial burden of demonstrating coverage, the insurer carries the burden of establishing the applicability of exclusions.” It added that “Insurance contract exclusions are construed narrowly and strictly against the insurer” and read in line with the insured’s expectations. The court also observed that “There is no comparable standard CGL policy language under Minnesota law” when it compared CGL coverage with the statutory fire policy, so the words of your own policy decide the question.

The exclusion has a stated purpose. The court explained it in Woida v. North Star Mutual Insurance Co., 306 N.W.2d 570 (Minn. 1981). An intentional injury exclusion exists “to prevent extending to the insured a license to commit wanton and malicious acts.” Some older policies put the same phrase inside the definition of “occurrence.” The policy in Woida defined an occurrence as an accident resulting in injury or damage “neither expected nor intended from the standpoint of the insured.”

Forms vary, so the exclusion’s full paragraph deserves a careful read. One business liability policy I read in an insurer’s denial letter added a sentence saying the exclusion does not apply to injury or damage from reasonable force used to protect persons or property. The same policy handled personal and advertising injury, the coverage that answers claims such as defamation, in a separate exclusion for knowing violation of the rights of another. For a related exclusion in defamation claims, see my page on the knowingly false publication exclusion.

What counts as intended injury under Minnesota law?

Intended injury means the insured meant to cause harm, not merely that it meant to act. The Minnesota Supreme Court held that “where no bodily injury is intended, an assault does not come within the exclusionary clause.” Once some injury is intended, though, a worse or different injury is still excluded.

One leading case arose from an injury at a restaurant. In Caspersen v. Webber, 213 N.W.2d 327 (Minn. 1973), a restaurant patron who could not find his claim check pushed past the hatcheck employee, and she struck her back on a metal rack. The jury found an assault but also found he did not intend to injure her. The court held, “When the act itself is intended but the resulting injury is not, the insurance exclusion has no application.” That case involved a homeowner’s policy excluding injury “caused intentionally by or at the direction of the insured.” The insurer had to pay the compensatory damages, and the court said it “is liable to the defendant for attorneys’ fees and costs incurred in defense thereof.”

The rule has a limit that cuts the other way. Woida stated that “if an intent to inflict injury is found, the exclusion applies regardless of whether the actual injury is more severe or of a different nature than the injury intended.” In American Family Insurance Co. v. Walser, 628 N.W.2d 605 (Minn. 2001), the court put it this way: “a court need only find that the insured intended some harm, not that the insured intended the specific harm that resulted.”

For a company, this puts the focus on what the person who acted was trying to do. An employee who grabs a customer’s arm to stop a shoplifter presents a different coverage question than one who throws a punch. Claims by your own employees may fall under other coverage, such as employment practices liability insurance.

When will a court infer intent to injure as a matter of law?

A Minnesota court infers intent to injure, even over the insured’s denial, only when the insured acted in a calculated way or knew or should have known that harm was substantially certain. Sudden or impulsive conduct can leave intent as a question for the jury.

Walser stated the test: “the inference of intent to injure as a matter of law arises when the insured acted in a calculated and remorseless manner or when the insured’s actions were such that the insured knew or should have known that a harm was substantially certain to result from the insured’s conduct.” A harm that was a natural and probable consequence of the act “is not enough to infer intent to injure.” The court added, “There is no bright line rule as to when a court should infer intent to injure as a matter of law.”

Woida shows the kind of facts that meet the test. A group planned to drive to a power-line construction site around midnight and shoot at the truck where a security guard and a sheriff sat. They loaded rifles with armor-piercing bullets and fired through the windshield after the truck’s dome light and headlights came on. The court held: “We find that these actions are of such a calculated nature that we can infer an intention to inflict injury as a matter of law.” Woida also described an armed robbery at a bowling alley where an employee was shot and killed, another case where the court inferred intent.

The contrast is a heated moment. In Brown v. State Automobile & Casualty Underwriters, 293 N.W.2d 822 (Minn. 1980), a traveler struck an airport baggage clerk after a tug-of-war over a bag cut the traveler’s finger. The court declined to infer intent, saying the earlier cases “are factually more extreme than this case.” Walser grouped Caspersen and its own facts as “impulsive actions which resulted in an unintentional injury.”

Brown adds a point about the injury lawsuit itself. A finding of liability for assault does not settle the coverage question, because “proof of intent to injure is not required for a plaintiff to recover on an assault and battery theory.” The insurer in Brown was allowed to litigate intent in the coverage case.

What makes injury or damage expected from the company’s standpoint?

Expected injury requires “a certainty of harm on the part of the insured greater than general standards of foreseeability used to impose liability on the insured.” The Minnesota Supreme Court has equated it with reckless conduct, and absent policy language to the contrary it looks to what the insured actually expected.

The court restated that standard for CGL policies in Domtar, Inc. v. Niagara Fire Insurance Co., 563 N.W.2d 724 (Minn. 1997). The insurer may use indirect evidence, because “this standard does not preclude the use of circumstantial evidence or proof of willful blindness, but it is the insured’s actual expectation of damage that allows a defense to coverage.” The court rejected a purely objective test, based on what a reasonable company should have expected, “In the absence of policy language to the contrary.” It said that approach “would undermine coverage for injuries caused by simple negligence.” Domtar involved contamination from a former tar refining plant in Duluth. The court found no evidence that Domtar expected, “to a high degree of certainty, the same general type of damage for which the MPCA now seeks remedial action,” meaning the Minnesota Pollution Control Agency’s cleanup demand.

Two construction cases mark the line for contractors. In Bituminous Casualty Corp. v. Bartlett, 240 N.W.2d 310 (Minn. 1976), a masonry contractor laid chipped bricks and ran walls out of plumb against the contract’s specifications. The court found that “both of these alleged defects were patent, obvious, and called to the insured’s attention during the course of construction.” It held that “a construction contractor who knowingly and intentionally violates a contract specification should expect property damage to result,” so there was no covered occurrence. The same opinion recognized the other side: “If property damage occurs because of mistake or carelessness on the part of the contractor or his employees, he reasonably expects that damage to be covered.”

Ohio Casualty Insurance Co. v. Terrace Enterprises, Inc., 260 N.W.2d 450 (Minn. 1977) applied that second sentence. A builder went ahead with foundation work after a soil engineer recommended stopping or slowing the project and warned about freezing, and its precautions failed. The court wrote that the builder “was aware, from its own knowledge and the soil report, of the dangers of freezing conditions,” yet “Such conduct was perhaps negligent, but not reckless or intentional.” On that basis, the court held that the settling of the building was an occurrence within the terms of the policy. The difference between the two cases was a knowing departure from the contract against an effort that fell short. For the 1986 standard form, see Wanzek Construction, Inc. v. Employers Insurance of Wausau, 679 N.W.2d 322 (Minn. 2004): coverage of a contractor’s business risk “must be determined by the specific terms of the insurance contract.”

Whose intent counts when the insured is a company?

When the exclusion refers to “the insured” and the policy has a separation-of-insureds clause, a Minnesota court asks whether the company itself intended or expected the injury. An owner’s or employee’s intent is not automatically the company’s.

In Bloomington Steel, the company’s sole shareholder and officer, Reiners, struck a worker from another business with a piece of wood. The Minnesota Supreme Court held that the exclusion was “limited to bodily injury expected or intended by Bloomington Steel itself.” It noted that wording excluding injury expected or intended by “an” or “any” insured would have been enforceable in a CGL policy. It left the fact-finder to decide whether the company, “as an entity separate and distinct from Reiners,” expected the assault. It said that “Under the general corporate legal principles cited by Travelers,” the company “is charged with Reiners’ intent when Reiners acted on its behalf.” It also stated that it did not reach whether an employee’s intent can be imputed to the company for this exclusion when the company is vicariously liable for the employee’s acts. My page on responding to a denial walks through that case and its imputation rules in more detail.

How does the exclusion affect the insurer’s duty to defend?

A Minnesota liability insurer should defend when any part of the claim is arguably covered, while reserving its right to contest coverage later. The duty to defend ends only when, as a matter of law, the policy could not require the insurer to pay.

Bartlett stated the rule: “an insurer seeking to avoid having to defend an insured carries the burden of demonstrating that all parts of the cause of action against the insured fall clearly outside the scope of coverage.” It continued: “If any part is arguably within the scope of coverage, the insurer should defend, reserving its right to contest coverage based on facts developed at trial on the merits.” In Brown, the clerk’s claim required a defense because it “stated a cause of action in negligence; a claim clearly covered by the terms of the policy,” alongside an assault and battery theory. A complaint that pairs an assault count with a negligent supervision count can present that situation, because a negligence count alleges carelessness rather than intent to injure. The pleading has a limit: Bartlett said that “the complaint is not controlling when actual facts clearly establish the existence or nonexistence of an obligation to defend.”

The defense duty can end when intent is clear. In Woida, once intent was inferred as a matter of law, the court held: “When it can be concluded as a matter of law that there is no basis upon which an insurer may be obligated to indemnify the insured, the insurer is relieved of its duty to defend.” An insurer that wrongly refuses carries a cost: in Caspersen, the insurer owed the fees its insured spent on the defense. My page on the duty to defend and the duty to indemnify covers the two duties side by side.

How should a company respond to a claim alleging intentional harm?

A company should tender the claim to its insurer at once, read the exclusion’s exact wording, compare each count of the complaint to the policy, and put the facts about intent and expectation in writing. A disputed denial can be tested in court.

I suggest these steps, in this order, because each one builds the record the next one uses:

  1. Tendering the claim promptly and in writing, because the defense duty starts with the tender. In Domtar, the court applied “the general rule that an insured does not invoke its insurer’s duty to defend until it properly tenders a defense request.” It held that “an insurer cannot be held responsible for defense costs incurred prior to the tender of the defense request giving rise to the insurer’s duty to defend, the diligence of the insured notwithstanding.” Your policy’s notice terms also apply; my page on late notice to an insurer covers that issue.
  2. Getting the complete policy with every endorsement, because the words “the insured,” “an insured,” or “any insured,” any exception sentence, and the separation-of-insureds clause can each change the answer.
  3. Comparing each count of the complaint with the policy, because a negligence count can require a defense under Brown even when another count alleges intentional harm, unless the actual facts clearly establish that no defense is owed.
  4. Answering each ground of a denial in writing, because the insurer must explain its denial and the facts on intent decide the exclusion. Minn. Stat. § 72A.201, subd. 8 lists unfair settlement practices. One is “denying a claim without having made a reasonable investigation of the claim.” The same subdivision lists denying a claim on an exclusion “without informing the insured of the policy provision, condition, or exclusion on which the denial is based.” A denial must also state “the basis for the denial.” Facts showing what the employee was trying to do, or what the company actually knew, go to the questions Walser and Domtar make decisive.
  5. Considering a court ruling on coverage, because a declaration settles the dispute for both sides. Under Minn. Stat. § 555.02, a person interested under a written contract “may have determined any question of construction or validity arising under the instrument.” Woida, Brown, Bartlett, and Terrace Enterprises were each coverage cases of this kind. In Woida, the coverage case ran in a different county from the injury suit. In Caspersen, the court observed that “Much of the confusion in trying this action might have been eliminated if the question of the insurer’s liability had been litigated in separate proceedings.”

If the same incident brings a customer’s demand under a contract’s indemnity clause, see my page on contract indemnity for intentional conduct.

Does the exclusion apply if an employee meant to shove a customer but not to hurt anyone?

Not on that fact alone. In Caspersen v. Webber (Minn. 1973), a restaurant patron pushed a hatcheck employee, the jury found he did not intend to injure her, and the Minnesota Supreme Court held the exclusion did not apply. American Family Insurance Co. v. Walser (Minn. 2001) requires intent to cause harm, not just intent to act. A court infers that intent only from calculated conduct or harm substantially certain to follow, so an impulsive shove can leave intent as a question for the jury.

Is a contractor covered after knowingly departing from the project specifications?

Not for damage from a known, obvious departure, under Bituminous Casualty Corp. v. Bartlett. In Bituminous Casualty Corp. v. Bartlett (Minn. 1976), a masonry contractor laid chipped bricks and knowingly ran walls out of plumb against the contract, and the Minnesota Supreme Court held the damage was expected, so there was no covered occurrence and no duty to defend. In Ohio Casualty Insurance Co. v. Terrace Enterprises (Minn. 1977), the court called a builder’s failed freeze precautions “perhaps negligent, but not reckless or intentional” and held the settling of the building was an occurrence within the terms of the policy.

What if the injured person says we should have seen the harm coming?

That argument supports a negligence claim, but it does not by itself make the injury expected. In Travelers Indemnity Co. v. Bloomington Steel & Supply Co. (Minn. 2006), the Minnesota Supreme Court said that showing an insured expected the injury requires more than the foreseeability needed for a negligence action. Domtar, Inc. v. Niagara Fire Insurance Co. (Minn. 1997) measures expectation by the insured’s actual expectation, which the insurer may prove with circumstantial evidence or proof of willful blindness.

Will the insurer still defend if the complaint calls our conduct intentional?

It should, if any part of the claim is arguably covered. In Bituminous Casualty Corp. v. Bartlett (Minn. 1976), the court said an insurer that wants to avoid defending must show that all parts of the claim fall clearly outside coverage, though clearly established actual facts override the complaint. In Brown v. State Automobile & Casualty Underwriters (Minn. 1980), a negligence count beside an assault count kept the defense in place. In Woida v. North Star Mutual Insurance Co. (Minn. 1981), the duty ended because intent to injure was inferred as a matter of law, leaving no basis for indemnity.

Should we report a claim before we know whether it is covered?

Yes. In Domtar, Inc. v. Niagara Fire Insurance Co. (Minn. 1997), the Minnesota Supreme Court applied the general rule that an insurer cannot be held responsible for defense costs incurred before the insured tenders the defense, even when the insured was diligent, and it found no compelling circumstances for a departure. Domtar spent several months searching for its old policies before tendering, and it lost the defense costs from that period. I suggest tendering every claim in writing as soon as it arrives, because defense costs spent before the tender generally stay with the company.

Does the exclusion reach a defamation or false-advertising claim?

Not through its bodily injury and property damage paragraph, which covers only those two kinds of harm. Some business liability forms add a second paragraph excluding personal and advertising injury from an offense the insured committed, directed, or consented to while expecting to inflict that injury. Your policy’s own paragraph controls. Under Travelers Indemnity Co. v. Bloomington Steel & Supply Co. (Minn. 2006), Minnesota courts construe exclusions narrowly, and the insurer carries the burden of proving that one applies.

Next Steps on an Intentional-Harm Claim

The expected or intended injury exclusion reaches harm the insured meant to cause or expected with a high degree of certainty, and a Minnesota insurer has to prove it applies. A court may infer intent from calculated conduct or from harm the insured knew or should have known was substantially certain. Your company’s position depends on the exclusion’s exact words, the counts in the complaint, and the facts about what the people involved intended and knew. Tendering the claim right away protects the defense costs that the policy may cover.

If you would like me to analyze whether the exclusion reaches a claim against your company, email [email protected] with a short description of the claim and the name of your insurer. More on how insurance and liability interact for Minnesota businesses is in my business compliance materials.