Legal Memorandum: Personal Participation

Issue: When may an insured be found to "personally participate" in the creation of the loss?

Area of Law: Insurance Law, Personal Injury & Negligence
Keywords: Personal participation; Creation of the loss; Insurance
Jurisdiction: National
Cited Cases: None
Cited Statutes: None
Date: 05/01/2007

A negligent actor does not “personally participate” in the intentional tort.  See Marine Midland Bank v. John E. Russo Produce Co., 427 N.Y.S.2d 961, 969 (N.Y. 1980) (“As a general proposition, corporate officers and directors are not liable for fraud unless they personally participate in the misrepresentation or have actual knowledge of it.  Mere negligent failure to acquire knowledge is insufficient to be deemed “personal participation.” (emphasis added)); People v. Cole, 645 P.2d 1182, 1184 (Cal. 1982) (a sentencing enhancement statute that allows an increased sentence for those “personally inflicting” bodily harm applies only to a person who himself directly inflicts the injury and “necessarily excludes those who aided or abetted the actor who directly inflicted the injury”); see also Doe v. Schaeffer, 738 N.E.2d 1243, 1248 (Ohio 2000) (recognizing that even though Ohio public policy prohibits insurance for a party who commits actual acts of sexual abuse, a party may obtain insurance for his negligence related to sexual abuse because “that party has not committed the act of sexual abuse”). 


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