Legal Memorandum: Insurer's Duty to Defend in MN

Issue: Under Minnesota law, when does the intentional act exclusion, such as may apply in cases of nonconsensual sexual conduct, apply to relieve an insurer of liability to its insured for a loss?

Area of Law: Insurance Law
Keywords: Duty to defend; Intentional act exclusion; Nonconsensual sexual conduct
Jurisdiction: Minnesota
Cited Cases: 664 N.W.2d 817; 474 N.W.2d 324; 528 N.W.2d 869; 355 N.W.2d 421; 479 N.W.2d 87
Cited Statutes: None
Date: 06/01/2009

Under longstanding Minnesota case law:

An intentional act exclusion applies only where the insured acts with the specific intent to cause bodily injury.  The requisite intent demands that the insured intended the harm itself, not that the insured intended to act.  Under this subjective standard, the necessary intent may be established by proof of an insured’s actual intent to injure or by inference, when the character of the act is such that an intention to inflict injury can be inferred as a matter of law.  The inference arises when the nature and circumstances of the insured’s act were such that harm was substantially certain to result.


State Farm Fire & Cas. Co. v. Wicka, 474 N.W.2d 324, 329 (Minn. 1991) (citations omitted).  “Whether proven directly or inferred, intent to cause injury ‘reflects the insured’s state of mind about the desired harmful consequences of an action by the insured.'”  B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 821-22 (Minn. 2003) (quoting Wicka, 474 N.W.2d at 329).

Absent a genuine issue of material fact regarding the insured’s mental capacity, the Minnesota courts have routinely held that there is no duty to defend or indemnify where the underlying action alleges nonconsensual sexual conduct by the insured.  The intent to inflict harm on the plaintiff is inferred as a matter of law, thereby bringing the underlying claims within the intentional act exclusion and/or excluding them from the […]

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