Opinion
July 19, 1993
Appeal from the Supreme Court, Suffolk County (Seidel, J.).
Ordered that the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment declaring that New York Central Mutual Fire Insurance Company has no obligation to defend and indemnify the Nascimentos with respect to the incident in issue.
On Monday, September 5, 1983, at approximately 12:52 A.M., behind Newfield High School in Selden, Victor Nascimento beat, raped, and then stabbed the infant plaintiff. As a result of this incident, he was arrested and charged with attempted murder in the second degree and rape in the first degree. On October 31, 1983, he pleaded guilty to attempted murder in the second degree (i.e., that he, "with the intent to cause the death of [the infant plaintiff], attempted to cause her death by stabbing her with a sharp instrument"). During the plea allocution, he admitted three times that he meant to kill the infant plaintiff.
The infant plaintiff subsequently commenced a personal injury action against Victor Nascimento, his parents, the school district, and the security company providing security services to the school district. She thereafter notified the carrier of her claim against the Nascimentos, and when the carrier disclaimed coverage, she commenced the instant action seeking a declaration that it was obligated to defend and indemnify the Nascimentos. By an order entered on June 5, 1991, the Supreme Court, Suffolk County, granted the carrier's motion for summary judgment and dismissed the complaint, stating, in part, that "[t]he facts in this case convincingly demonstrate that the acts committed by Victor Nascimento were intentional and thus outside the clear terms of the insurance policy".
It is well established that a carrier must provide a defense to its insured in an action if the underlying complaint, liberally construed, sets forth any claim which can reasonably be said to fall within the coverage of the policy or if the carrier has actual knowledge of facts which tend to establish the reasonable possibility of coverage (see, Continental Cas. Co. v. Rapid-Am. Co., 80 N.Y.2d 640, 648; Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61; Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304). However, if the allegations of the underlying complaint allow for no interpretation that will bring them within the policy provisions, there is no duty to defend (see, Allstate Ins. Co. v Mende, 176 A.D.2d 907; 44th Hotel Assocs. v. Zurich Ins. Co., 174 A.D.2d 475; Beattie v. Home Indem. Ins. Co., 170 A.D.2d 559). Furthermore, "an insured may not, by use of a `shotgun' allegation, create a duty to defend beyond that which was anticipated by the parties when they entered into the policy contract" (Village of Newark v. Pepco Contrs., 99 A.D.2d 661, 662, affd 62 N.Y.2d 772; see also, Parkset Plumbing Heating Corp. v Reliance Ins. Co., 87 A.D.2d 646).
Moreover, a carrier may also be relieved of its duty to defend if it can establish as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision (see, Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 45; Servidone Constr. Corp. v. Security Ins. Co., 64 N.Y.2d 419; Spoor-Lasher Co. v Aetna Cas. Sur. Co., 39 N.Y.2d 875; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 N.Y.2d 364, 368). Similarly, a carrier may be relieved of its duty by proving that a claim falls within the exclusions of an insurance policy (see, Foley v. Foley, 158 A.D.2d 666).
In the instant case, the homeowner's policy issued by the carrier to the Nascimentos provided under the heading "Section II — Exclusions" that "1. Coverage E — Personal Liability and Coverage F — Medical Payments to others do not apply to bodily injury or property damage: (a) which is expected or intended by the insured". In support of its motion for summary judgment, the carrier submitted documentary evidence — i.e., the minutes of Victor Nascimento's plea of guilty — that the incident in question squarely fell within the terms of the policy's exclusionary clause (see, Pawelek v. Security Mut. Ins. Co., 143 A.D.2d 514; New York Cas. Ins. Co. v. Ward, 139 A.D.2d 922).
Victor Nascimento pleaded guilty to attempted murder in the second degree (Penal Law § 125.25), a crime which necessarily includes as an essential element the specific intent to kill (see, People v. McDavis, 97 A.D.2d 302; People v. Jimenez, 73 A.D.2d 533; People v. Quinones, 71 A.D.2d 662). Indeed, Victor Nascimento admitted that he "[m]eant to kill her"; the infant plaintiff herself testified in pretrial proceedings that Victor Nascimento had stabbed her in the chest, in the area around the heart, with a hunting knife, in order to keep her from telling anyone that he had raped her, and that he had even tried to push the knife in further. Under these circumstances, it is clear that the Supreme Court properly concluded that the carrier was not obligated to defend or indemnify the Nascimentos since the policy's exclusionary clause was applicable (see, Matter of Nassau Ins. Co. [Bergen — Superintendent of Ins.], 78 N.Y.2d 888; D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659; Allstate Ins. Co. v. Boonyam, 192 A.D.2d 688; Home Mut. Ins. Co. v. Lapi, 192 A.D.2d 927; Valle v. Blackwell, 173 A.D.2d 390).
In view of the foregoing, we need not reach the parties' remaining contentions. However, we note that since this is a declaratory judgment action, a judgment should be entered declaring that the carrier has no obligation to defend or indemnify the Nascimentos with respect to the incident in issue (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Bracken, J.P., Balletta, O'Brien and Copertino, JJ., concur.