It does not appear, however, that Liberty Mutual has agreed to provide American athletes in this year’s Winter Games with liability insurance. If history is any indication, that underwriting decision may be a sound one. Twenty-four years ago, American figure skater Nancy Kerrigan was clubbed on the knee by a man after finishing a practice session at the U.S. Figure Skating Championships in Detroit, the run-up to the 1994 Olympic Winter Games. As the plot unfolded, investigators determined that the attack was orchestrated by several shadowy figures, led by mastermind Jeff Gillooly, who just happened to be the live-in ex-husband of Ms. Kerrigan’s main American competitor, Tonya Harding. Ms. Harding initially denied any knowledge or involvement in the attack, but the real story is more complicated.
Of course, without any general liability insurance available from a company like Liberty Mutual, amateur athletes like Ms. Harding would have had no choice but to tender any claim by Ms. Kerrigan to their homeowners carriers. At first blush, it is doubtful that a homeowners policy would have provided coverage for “The Whack Heard Round The World,” as the attack on Ms. Kerrigan was later dubbed. Most homeowners insurance policies, certainly those available in 1994, would have had an exclusion for bodily injury “expected or intended from the standpoint of the insured” (emphasis added). Assuming that Mr. Gillooly qualified as an “insured” on the same homeowners policy issued to Ms. Harding (which may not have been the case as the two apparently had reconciled but still were divorced at the time of the attack), Ms. Kerrigan’s injury certainly would seem to have been intended or expected by the insured.
But hope for insurance coverage, if not Olympic gold, would have remained for Ms. Harding. The exclusion commonly used in liability policies in the 1990s and that remains in many policies today removed coverage for bodily injury “expected or intended from the standpoint of the insured,” as opposed to “an insured” or “any insured.” The Missouri Supreme Court in Shelter Mutual Insurance Company v. Brooks, 693 S.W.2d 810 (Mo. 1985), explained the difficulty with the phrase “the insured” in the context of a household exclusion:
The word “insured” is the unusual character of word which can be either singular or plural in meaning. The article “the” is a word of specificity as contrasted to the articles “a” and “an” which are general in description encompassing any of the class. If the article “the” is combined with the plural “insured” it clearly would encompass all insured under the policy. If on the other hand it is combined with the singular “insured” it speaks to a specific insured rather than all members of the class wherein the terms “an insured” or “any insured” are more properly utilized.
Construing the ambiguity against the insurance company, the court in Brooks interpreted the phrase “the insured” to mean only the particular insured seeking protection under the policy. This interpretation appears to be the majority view across the country. See e.g. Michael Carbone, Inc. v. General Acc. Ins. Co., 937 F.Supp. 413 (E.D. Pa. 1996).
Assuming that Ms. Harding’s home was located in a state that applied this majority interpretation, her homeowners carrier would have had to demonstrate that
she intended or expected Ms. Kerrigan’s bodily injury to apply the exclusion to a claim against Ms. Harding. That is no bunny hop. Ms. Harding initially denied any knowledge or involvement in the attack. However, Mr. Gillooly, who later pleaded guilty to racketeering,
said that Ms. Harding knew about the attack: “Of course she did. I think most people know that she did.”
He claimed that Ms. Harding made calls to Tony Kent Arena (Ms. Kerrigan’s main practice space in Massachusetts) and asked about her practice schedule in an effort to plan the attack. Mr. Gillooly’s story was corroborated when a worker at Dockside Saloon and Restaurant in Portland, Oregon (Ms. Harding’s hometown) found paperwork in the restaurant’s dumpster with Ms. Harding’s name on it. The worker also found an
envelope with notes written on the front and back, including the name of Tony Kent Arena and Ms. Kerrigan’s practice times. Investigators hired a handwriting expert who later testified that most of the notes on the envelope were written by Ms. Harding, while the remaining notes were written by Mr. Gillooly.
Ms. Harding pleaded guilty to hindering the investigation of the attack, but not to involvement in the attack itself. The closest that Ms. Harding has come to admitting any possible knowledge of a planned attacked was in an
interview this past January 2018 with ABC News. She admitted that she “knew something was up” about a month or two before the attack by overhearing conversations Mr. Gillooly had with others. She said: “I did, however, overhear them talking about stuff, where, ‘Well, maybe we should take somebody out so we can make sure she gets on the team.’ And I remember telling them, I go, ‘What the hell are you talking about? I can skate.’” And she could, as she was the first American woman to land the coveted triple axel in competition. (To see the first American woman land the triple axel at the Olympics, watch this
clip from Mirai Nagasu’s recent performance. It’s amazing.)
The Tonya Harding-Nancy Kerrigan saga is one of the more bizarre episodes in American sports. It also demonstrates the challenge of weighing all reasonably available, sometimes conflicting bits of evidence to make a factual determination as to what actually happened. Nevertheless, depending upon the law of the state at issue, insurance companies perform these tasks every single day when assessing whether they should assert that a fact-based exclusion applies to a claim, such as the exclusion for bodily injury intended or expected from the standpoint of the insured. And they do so without the investigative powers of the FBI.
Ms. Kerrigan later said that FBI investigators told her, “Nancy, we can’t prove it, but we think she [Ms. Harding] was the mastermind of the whole thing.” They allegedly told her, “I know we can't prove it but we’re telling you. She did.” Ms. Kerrigan went on to win the silver medal in women’s figure skating at the 1994 Olympic Games in Lillehammer, Norway. Ms. Harding finished eighth.
Michael L. Young is a partner in the St. Louis office of HeplerBroom, LLC with a primary emphasis in the practice of insurance law and bad faith. He represents insurers in complex insurance coverage matters at all stages of the claims process. Mr. Young also has advised insurers in drafting policy language and developing claims best practices. He represents clients in Missouri and Illinois.