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Long v. Coates12/11/1990
!--/REF--> (1986) expressly adopted this view.
For an act or injury to be intended, the actor must have the mental capacity to form an intent; intoxication may destroy the mental capacity to form an intent. U.S.F. & G. Ins. v. Brannan, 22 Wash. App. 341, 348-49, 589 P.2d 817 (1979). Kenna v. Griffin, 4 Wash. App. 363, 365, 481 P.2d 450 (1971) also recognizes an insured may be so affected by alcohol as to be unable to form an intent to commit an act. The majority of other jurisdictions which have considered this question have also held that for purposes of invoking the exclusionary clause like the one here, intoxication may negate an insured's mental capacity to form an intent. See Lawler Mach. & Foundry Co. v. Pacific Indem. Ins. Co., 383 So. 2d 156 (Ala. 1980); State Farm Fire & Cas. Co. v. Morgan, 185 Ga. App. 377, 364 S.E. 2d 62 (1987), affd, 258 Ga. 276, 368 S.E. 2d 509 (1988); MacKinnon v. Hanover Ins. Co., 124 N.H. 456, 471 A. 2d 1166 (1984); Morris v. Farmers Ins. Exch., 771 P.2d 1206 (Wyo. 1989); Annot., Liability Insurance: Intoxication or Other Mental Incapacity Avoiding Application of Clause in Liability Policy Specifically Exempting Coverage of Injury or Damage Caused Intentionally by or at Direction of Insured, 33 A.L.R. 4th 983, 1000-06 (1984 & Supp. 1990).
State Farm cites cases from two jurisdictions which have held intoxication should not be permitted to take an insured's otherwise intentional acts out of the exclusion, reasoning that permitting voluntary intoxication as a defense for wrongful acts is against public policy. See American Family Mut Ins. Co. v. Peterson, 405 N.W. 2d 418 (Minn. 1987); Travelers Ins. Co. v. Cole, 631 S.W. 2d 661 (Mo. App. 1982); Hanover Ins. Co. v. Newcomer, 585 S.W. 2d 285 (Mo. App. 1979). Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 267 A. 2d 7, 15 (1970) discussed the policy issues as follows:
The exclusion of intentional injury from coverage stems from a fear that an individual might be encouraged to inflict injury intentionally if he was assured against the dollar consequences. Ruvolo v. American Casualty Co., 39 N.J. 490, 496, 189 A. 2d 204 (1963). Pulling the other way is the public interest that the victim be compensated, and the victim's rights being derivative from the insured's, the victim is aided by the narrowest view of the policy exclusion consistent with the purpose of not encouraging an intentional attack. And the insured, in his own right, is also entitled to the maximum protection consistent with the public purpose the exclusion is intended to serve. Accordingly, we held in Ruvolo (39 N.J. at 498, 189 A. 2d 204) that the concept of insanity relevant to the exclusion clause of a liability policy was more expansive than the concept of insanity accepted in the defense of a criminal charge.
The burden is the carrier's to bring the case within the policy exclusion. Morie v. N. J. Manufacturers Indemnity Ins. Co., 48 N. J. Super. 70, 76, 137 A. 2d 41 (App. Div. 1957); Advance Piece Dye Works, Inc. v. The Travelers Indemnity Co., 64 N.J. Super. 405, 411-413, 166 A. 2d 173 (App. Div. 1960). Thus, as to intoxication, although in the criminal trial the jury was instructed that it was the defendant's burden to prove and persuade that he was so intoxicated as not to be able to form the intent to commit the atrocious assault and battery, here the burden would be the carrier's to prove and persuade that the injuries were within the exclusion . . ..
The reasoning in Burd is persuasive; we decline State Farm's invitation to adopt the reasoning of the two minority jurisdictions.
Althoug
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