Albany, New York

From Long Island’s Newsday of June 8, 2006

Court says insurance company must pay for wrongful death defense

An insurance company is being ordered to pay for the legal defense of a man who shot a business associate in self defense, but was then sued by the dead man's estate, the state's highest court ruled Thursday.

In February 2002, Alfred Cook, then 57, shot and killed 52-year-old Richard Barber inside Cook's Clarksville home, 10 miles southwest of Albany.

During his trial, Cook testified that Barber, who weighed more than 360 pounds, barged into his home uninvited with two other men, began slamming his fists on tables and demanded money. Cook, who weighed 120 pounds, pulled out a .25-caliber handgun and ordered the men to leave. Barber laughed at the small size of the pistol, prompting Cook to run to his bedroom and retrieve his 12-gauge shotgun.

When Barber moved toward Cook and ignored a warning, Cook shot him in the stomach.

Cook was acquitted of second-degree murder and manslaughter charges, but the administrator of Barber's estate filed a wrongful death suit against Cook, accusing him of negligence and with intentionally killing Barber. Cook said he only fired to protect himself.

Cook's insurer, the Automobile Insurance Co. of Hartford, now a part of The St. Paul Travelers Cos., based in St. Paul, Minn., refused to pay for Cook's civil defense. It argued that the shooting was not covered by Cook's policy because it was "expected or intended" by Cook, not an accident.

The Court of Appeals, in a 7-0 decision, reversed a lower court ruling and said the insurer would have to pay for Cook's defense, saying that insurance companies have a broad duty to defend in such cases, even if the suits are without merit.

"Suffice it to say that a reasonable insured (person) under these circumstances would have expected coverage under the policy," Judge Carmen Beauchamp Ciparick wrote for the court.

She noted that the insurance company may not be required to pay if Cook loses in court. The case is awaiting trial.

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