Insurance lawyers can tell you that most intentional acts are not covered by an insurance policy. What if the act occurs in the context of a sports event? A 1998, Fort Worth Court of Appeals case talks about this. The style of the case is, Monk v. Phillips.
Factual background – Michael, Phillips, Gary Duffek (“Duffek”), and Gary Watson (“Watson”) were playing a recreational game of golf as a foursome when the incident occurred. Phillips’s first tee shot on the second hole traveled off to the right side of the fairway into the trees. Phillips then shot a mulligan, a second tee shot, which also traveled off to the right and landed near the first ball. Because only the second ball was visible from the cart path, Michael and Duffek attempted to retrieve the missing first ball.
Phillips decided to play the second ball and proceeded to its location in the rough to the right of the fairway. At this point, Michael and Duffek, riding in the golf cart, passed in front of Phillips and then to Phillips’s right. Phillips heard Duffek say “look out, he’s fixing to hit.” No one told Phillips to wait. Phillips then hit the ball off the toe of his golf club, shanking the ball to the right at an approximately ninety-degree angle from where he intended the ball to go. The ball struck Michael, leaving him blind in his right eye.
One appeals court has stated, “a participant in a competitive contact sport expressly consents to and assumes the risk of the dangerous activity by voluntarily participating in the sport. We hold that for a plaintiff to prevail in a cause of action for injuries sustained while participating in a competitive contact sport, the plaintiff must prove the defendant acted recklessly or intentionally as the Restatement of Torts defines those terms.” The reasoning by the court in the non-contact sport of golf was applied by another court to a polo match. The ruling is, that for a plaintiff to prevail in a cause of action against a fellow golfer, the defendant must have acted recklessly or intentionally.
The Restatement (Second) of Torts defines reckless disregard of safety as follows:
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Reckless conduct is often characterized as “wanton or wilful.” Furthermore, recklessness differs from that form of negligence consisting of “mere inadvertence, incompetence, or unskillfulness, … in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.”
This court held that since there was no evidence of reckless or intentional conduct by Phillips, that a cause of action against him could not stand.
The relevance of this case to insurance law is this. Most people who hurt others and those who are hurt, want insurance to cover the claim. If the policy is like the majority of policies, there is no coverage for intentional conduct. Thus, the injured party is left with no recourse but to sue the party causing the harm and alleging intentional conduct, or otherwise be thrown out of court with no recourse. It is a decision that must be discussed before filing suit.
Updated: