Nick M. Nighswander of Florence, Ky. hit a home run in a case of first impression to the Ct.. He appealed and got a ruling that an “intentional cause of damage” exclusion clause in an UM motorists policy did not apply to damage caused by third party.

Feb. 20, 2011

 The Hon. Nicholas  (Nick)  M. Nighswander  of Florence, Ky. hit a home run when he appealed a ruling of the Kenton Circuit Court regarding interpretation of an intentional cause of damage exclusion in an UM motorists policy.

For full text of case click case number 2009-CA-002033   Stamper v. Hyden

Circuit Judge Bartlett was found to have incorrectly instructed the jury on this issue.  The Ct. of Appeals held that the intentional act exclusion clause, applied to intentional acts causing damage by the insured but did not apply (as in the Stamper case on appeal) to intentional acts of a third party against the property of the insured.

The Trial Judge had agreed with the interpretation argued by the insurer, and the Court of Appeals said this case presented a case of first impression.

Nighswander, a former professional football player in the NFL, tenaciously refused to lose and turned this around on the appeal.  (Great work Nick!!!)

UM insurance policy term “accident” should be determine from view point of the insured not the insurer.  Intenational act of third party towards insured does not relieve insurer of duty under policy.

Stamper contends the trial court erred as a matter of law by instructing the jury to determine whether damages were the result of an accident, and she alternatively contends that a verdict of zero damages as to Hyden was inadequate under the evidence.

Standard Fire asserts that, because the collision resulted from Hyden’s intentional criminal conduct, it was not an “accident” covered by Stamper’s UM policy. What Standard Fire overlooks, however, is that the Fryman Court, addressing a life insurance policy, concluded that “a death is accidental absent a showing that the death was a result of plan, design or intent on the part of the decedent.” Id

After careful review of the relevant caselaw, we agree that the jury was erroneously instructed, which rendered the verdict unreliable.

Stamper contends the trial court erred as a matter of law by instructing the jury to determine whether damages were the result of an accident, and she alternatively contends that a verdict of zero damages as to Hyden was inadequate under the evidence.

After careful review of the relevant caselaw, we agree that the jury was erroneously instructed, which rendered the verdict unreliable.

We find Standard Fire’s argument unpersuasive, and we cannot conclude from the record that the verdict was not influenced by the erroneous instruction.

Under the circumstances presented here, “[r]ather than speculating whether the jury understood the issues despite the instructions, we must presume that a verdict was influenced by an improper instruction.” Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 124 (Ky. 1991). As the erroneous instructions potentially confused or

misled the jury by limiting Stamper’s recovery to damages that were caused by an accident, we conclude Stamper is entitled to a new trial.3

For the reasons stated herein, we vacate the judgment of the Kenton Circuit Court and remand this case for further proceedings consistent with this opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Nicholas M. Nighswander

Florence, Kentucky

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