The intent exclusion clause is a provision in virtually every liability insurance policy that raises many questions. If your insurer invokes the intent exclusion clause, this means that the insurer refuses to provide coverage because the damage would be the result of intentional conduct. This can have enormous financial consequences, both for the perpetrator and for the victim. This article explains the intent exclusion clause: what this clause entails, when the insurer may invoke it
to invoke and what options do you have to challenge this?
What is the wilful misconduct clause?
The intent exclusion clause is an exclusion in the policy terms of liability insurance. The clause provides that the insurer does not grant coverage for damage that is the result of intentional acts by the insured. The idea behind this is that insurance is meant to cover unforeseen damage and not to absorb the consequences of consciously harmful conduct. If someone willfully and knowingly causes damage, the insurer is not required to cover it. The exact wording of the intent exclusion varies by insurer and by policy. The current standard wording used by the Verbond van Verzekeraars excludes coverage for damage that is caused by or arises out of intentional and wrongful acts or omissions directed at a person or property. This wording was amended in 2000 following several judicial decisions that clarified the scope of the clause.
When does an insurer invoke the intentional-acts clause?
An insurer can rely on the intent exclusion clause in situations where the insured intentionally caused damage. In practice this occurs particularly in incidents of violence, vandalism and other situations in which deliberate harmful conduct plays a role. The intent exclusion clause is regularly invoked in cases of assault, vandalism and arson. It is important to understand that not every intentional act automatically leads to exclusion of coverage. The intent exclusion clause as applied today requires that the unlawful act was directed against a person or property. Moreover, the insurer must demonstrate that there was intent within the meaning of the policy terms.
The concept of intent explained in more detail
In interpreting the intent clause the concept of intent plays a central role. There are different degrees of intent that are relevant to the assessment of whether the insurer is justified in invoking the clause.
Intent as purpose
When intent is the aim, the damage is the direct purpose of the act. The insured wanted the
to cause damage and deliberately acted to that end. This is the most serious form of intent and almost always leads to exclusion of coverage under the intentional acts clause.
Intent as awareness of certainty
This is the case where the insured, although he did not have the direct intent to cause damage, knew that his actions would with certainty lead to damage. Consider someone who throws a stone through a window. The aim may not have been to damage the window, but the person was certain that this would be the consequence. This form of intent likewise generally falls within the intent clause.
Conditional intent
Conditional intent means that the insured has consciously accepted the risk of damage. The
the insured did not necessarily intend to cause the damage, but wilfully and knowingly accepted the substantial likelihood of it. Whether conditional intent falls within the intent clause has long been a matter of debate in the case law. In the current formulation of the intent clause the requirement of “directed” conduct has been incorporated, which limits the scope of the clause compared with conditional intent.
The subjective interpretation of the intent clause
An important development in case law is the subjective interpretation of the intent clause. This means that the judge not only looks at the objective act, but also at the personal circumstances of the insured. Factors such as a mental disorder, diminished capacity, young age or an acute stress situation can influence the assessment of whether there was intent within the meaning of the clause. In practice this means that the intent clause does not automatically apply to every intentional act. If the insured, due to a psychiatric disorder or other special circumstances, was unable to appreciate the consequences of his conduct, the court may rule that the insurer cannot rely on the intent clause. This qualification allows room for a defence in cases where the circumstances are more nuanced than they first appear.
The intent clause for violent incidents
The intent exclusion clause most often arises in cases of violent incidents. If someone assaults another person and the victim suffers damage, the perpetrator’s liability insurer will typically invoke the intent exclusion clause. This affects not only the perpetrator but also the victim, who will not have his loss compensated by the insurer. Case law regularly debates whether the insurer may refuse payment when the extent of the damage is far greater than the perpetrator could have foreseen. If someone gives a shove and the victim falls and sustains serious injuries, the intent was directed at the shove but not at the serious injury. In such cases the court assesses whether the intent was directed at the consequence that actually occurred.
Defence against reliance on the intent exclusion clause
If your insurer invokes the intent exclusion clause, you have various options to contest this. The defence depends on the specific circumstances of your case.
Contests the intent
You can argue that there was no intent within the meaning of the policy terms. If you can demonstrate that the damage resulted from an accident, self-defence or an unintended escalation, reliance on the intentional-acts clause may be rejected. Witness statements, video footage and other evidence can play a role.
Reliance on personal circumstances
Personal circumstances such as a mental disorder, alcohol intoxication, or an emergency situation may be relevant to the assessment of intent. An expert report by a psychiatrist or psychologist can substantiate that, due to particular circumstances, you were unable to foresee or control the consequences of your actions.
Proportionality and reasonableness
In certain cases the invocation of the wilful-misconduct clause may be unacceptable under standards of reasonableness and fairness. If the consequences of invoking the clause are disproportionate to the nature of the conduct, the court may reject reliance on the clause. This is particularly the case in situations where the victim would otherwise receive no compensation for their loss.
Consequences of a successful invocation of the intent clause
If the insurer successfully invokes the intent clause, the insurer does not provide coverage for the insured’s liability. This means that the insured remains personally liable for the damage and must reimburse it out of their own funds. For the victim, this means that the damage is not compensated by the insurer and that the victim must personally recover the damage from the perpetrator, which in practice is often problematic due to the lack of sufficient evidence or means of recovery.
The intent clause regarding minors and diminished
Persons capable of being held responsible A special category comprises cases in which the insured is a minor or has diminished capacity for responsibility. For children who cause damage the question is whether a child could foresee the consequences of his actions. The younger the child, the less readily intent within the meaning of the policy terms can be assumed. In these cases the judge looks at the age, the level of development and the specific circumstances under which the damage occurred. The same approach applies to insured persons with diminished accountability, for example persons with an intellectual disability or a severe psychiatric disorder. If the insured, due to his condition, was unable to appreciate the unlawfulness of his conduct or the
If the insured was unable to understand the consequences thereof, the intent exclusion may not be invoked. This generally requires an expert report assessing the insured’s mental state at the time of the incident.
Recent developments in case law
The interpretation of the intent exclusion clause is continually evolving. Recent judgments show that judges are paying increasing attention to the personal circumstances of the insured and to the question whether invoking the clause in a specific case is reasonable and equitable. There is a discernible trend in which the protection of the victim carries greater weight, particularly in cases where the victim, without cover under the liability insurance, has no possibility of recourse. This development is important for both insureds and victims who are confronted with an invocation of the intent exclusion clause.
The intent clause and the Waarborgfonds Motorverkeer
The position of an injured party in a road traffic accident requires a separate assessment. The compulsory WAM-verzekering provides protection for third parties, whereas the Waarborgfonds Motorverkeer can only play a role under the statutory conditions, for example in the case of an unknown or uninsured motor vehicle. The Waarborgfonds is therefore not a general safety net for every coverage exclusion. When invoking the opzetclausule it is advisable to have the policy, the circumstances of the incident and the position of all parties involved legally reviewed.
Difference between the intent exclusion clause and other exclusions
The intentional acts exclusion is not the only exclusion in liability insurance. Policies typically also contain exclusions for damage caused by molest (war/hostilities), nuclear reactions, environmental pollution and sexual conduct. It is important to know the distinction between the intentional acts exclusion and these other exclusions, because the conditions for application and the available defences differ by exclusion. With the intentional acts exclusion the question is always whether there was intent within the meaning of the policy terms, whereas other exclusions apply objective criteria that are independent of the insured’s intent. An insurer may sometimes invoke multiple exclusions at the same time. If the insurer relies on both the intentional acts exclusion and another exclusion, it is important to assess each defence separately. Refuting the intentional acts exclusion is pointless if the insurer can also successfully rely on another exclusion. A lawyer can provide an overview in this complex situation and determine which grounds of defence are most likely to succeed.
Subsidized legal aid
A dispute over the intent clause can be complex and costly. If your income is limited, you may be eligible for subsidized legal aid. De Raad voor Rechtsbijstand can grant a toevoeging, whereby most of the attorney’s fees are paid by the government. You then only pay a limited personal contribution. This makes legal assistance accessible to you as well, regardless of your financial situation.
Engage a specialist in matters concerning the intentional-act clause.
Disputes over the intentional-act exclusion clause are legally complex and require specialist knowledge of insurance law and the relevant case law. An experienced lawyer can assess whether the insurer’s reliance on the intentional-act exclusion clause is legally tenable and can advise you on the best strategy. Whether you are the insured whose coverage is being denied or the victim seeking compensation for their loss, legal assistance in these matters is almost always advisable. Has your insurer invoked the intentional-act exclusion clause and do you want to know what your options are? Contact us For a no-obligation consultation. We assess your case and advise you on the most promising approach. Our lawyers have extensive experience with intent-clause matters and will gladly assist you.
See also
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