Umbrella policy covers fight at college dorm

A friendly game of beer pong that went bad set the stage for a Virginia Supreme Court opinion that an insurance company owes a defense for a Virginia Tech student who was sued over injuries he caused in a 2002 altercation.

Nationwide Mutual Insurance Company had a duty to defend Adam Copp, the court ruled, because its umbrella policy contained language providing coverage for bodily injury caused by an insured “trying to protect person or property.” The “self-defense” exception required looking beyond the “eight corners” of the policy and the complaint, the court held.

For Copp, May 5, 2002, should have been a pleasant day. He had just finished final exams at Virginia Tech and was celebrating by playing beer pong with one of his roommates at a Blacksburg apartment.

Things apparently turned ugly when two strangers joined the game and one of them, Carson Dugger, said something to offend Copp. Copp and Dugger got in a shouting match that turned physical when Dugger’s friends appeared. Copp found himself confronting four or five people between him and Dugger.

At some point, Copp swung his arm and struck one of Dugger’s friends, Gregory Jacobson. Copp said he was just trying to get free from the group. Jacobson accused Copp of throwing punches and hitting him intentionally.

In any event, Jacobson was badly injured. Two surgeries were required to repair his fractured skull. Jacobson sued Copp for assault and battery, alleging intentional injury.

Copp’s insurance company, holding both a homeowner’s policy and umbrella coverage, noted the absence of any claim alleging negligent injury and sought a declaratory judgment that it owed no duty to defend Copp in the lawsuit.

The homeowner’s policy and the umbrella policy excluded liability for intentional acts causing personal injury, but the umbrella policy contained an exception: the exclusion “does not apply to bodily injury or property damage caused by an insured trying to protect person or property.”

Although deposition testimony about the details of the incident was available, the circuit court considered only the pleadings in ruling the insurance company was not obligated to defend Copp in the personal injury suit.

In prior decisions, the court required review of only the “four corners” of the complaint and the “four corners” of the policy to decide if an insurer has a duty to defend and indemnify its insured. The analysis of both documents was referred to as the “eight corners rule.”

The unusual “self-defense” exception in the umbrella policy, however, required consideration of Copp’s evidence, the Supreme Court held in an opinion authored by Senior Justice Harry L. Carrico. “[I]t requires consideration of an insured’s claim that he or she caused bodily injury or property damage trying to protect person or property in evaluating whether there is a duty to defend in a given case,” Carrico wrote.

“The trier-of-fact could believe his version and return a verdict in his favor or it could disbelieve him and return a verdict against him. But the fact that the latter result might occur does not negate Nationwide’s duty to defend in the first instance,” Carrico wrote.

The self defense issue, the court held, must be left to the fact-finder in a trial. The court reversed the judgment in favor of Nationwide and remanded for an appropriate declaratory order.

Copp was represented by Roanoke lawyer Frank K. Friedman before the Supreme Court. Friedman said the interesting aspect of the ruling is that a self-defense issue now will always require hearing evidence to resolve the coverage issue. “If self defense is raised, it’s never going to be in the eight corners,” he said.

“The factual accounts of the witnesses varied dramatically – but in a duty to defend case the question is: is there any version of facts that, if believed, would require coverage? If the answer is ‘yes’, then there is a duty to defend,” Friedman said.

Friedman said a telling moment in oral argument came with a question from Justice Donald W. Lemons, who suggested that if Copp were barred from showing his acts were in self defense, he would be denied one of the benefits of the insurance policy he paid for.

With tongue in cheek, Friedman also said a quick survey of Virginia case law suggests this is the first time “beer pong” has come up in a Supreme Court opinion.

Nationwide was represented by Michael C. Richards of Roanoke, who could not be reached for comment by press time.