Strategies, Challenges, and Answers

No Duty To Defend Or Indemnify Intentional Acts

Sergio Mitchell worked at a local elementary school as a janitor.  One of the students kicked Mr. Mitchell’s mop bucket, breaking it.  When Mr. Mitchell got after the student, the student started cursing him out.  Mr. Mitchell grabbed the student by the neck.  The student said that Mr. Mitchell was choking him.  The School District Police intervened.  

Ultimately, the student’s parent filed suit in the Eighth Judicial District Court.  Hohman v. Clark County School District and Mitchell, Case No. A-21-830522-C.  Mitchell tendered the defense of the suit to his homeowner’s insurance, Liberty Insurance Corp. In turn, Liberty Insurance Corp filed a declaratory relief action in the U.S. District Court, District of Nevada.  Liberty asked for a ruling regarding whether it owed Mr. Mitchell a duty to defend him or indemnify him in the underlying action.  

The insurance company filed once and then renewed a Motion for Summary Judgment.  Liberty Ins. Corp. v. Hohman, No. 2:21-cv-01622-GMN-VCF, 2023 U.S. Dist. LEXIS 91622 (D. Nev. May 24, 2023).  In its Complaint for Declaratory Relief, Liberty sued Mr. Mitchell, the insured and the parent as guardian of the minor.  

The Court looked at two policy provisions.  

The first provision limits the scope of personal liability coverage to “occurrence[s]”, defined as an “accident” resulting in bodily harm or property damage. . . . Second, the contract specifically excludes personal liability and payment for others’ medical expenses where the bodily injury or property damage was “expected or intended by the ‘insured[.]'”

Liberty at *11.  

In making its decision, the Court also looked at the Clark County School District Police Report and the body camera video recorded of Mr. Mitchell’s interview by the officer.   

Defendant Mitchell’s actions were intentional, and thus, outside the scope of the Policy. Defendant Mitchell acknowledges he deliberately placed his hands around C.H.’s neck. Defendant Mitchell need not have intended to injure C.H. because the underlying conduct causing the injury, placing his hands around C.H.’s neck and choking him, was not an accident, and injury suffered therefrom was foreseeable.

Id. at *12.  

Because there was no occurrence and because the injuries were expected or intended, the Court determined that there was no duty on the part of Liberty to either defend or indemnify Mr. Mitchell.  

If you have questions about Nevada Coverage or Insurance Law, please contact Mike Mills at 702.240.6060×114 or email him at