Intentional Act Exclusion
马萨诸塞州最高法院审理了一起保险纠纷，认定保单中的故意行为除外条款要求保险人证明被保险人主观上意图造成伤害，才能拒绝赔付，而非仅凭行为是自愿的。
INTENTIONAL ACT EXCLUSION Preferred Mutual Insurance Co.v. Gamache, _ N.E. 2d _; 426 Mass. 93 (Nov. 7, 1997). Insured James Gamache was in an altercation with police officers, who subdued Gamache after considerable effort when called to the scene of a fight. Gamache was apparently under the influence of alcohol but fought fiercely, injuring the knee of one of the policemen, who brought suit against Gamache for negligent, reckless and/or wanton Gamache was insured under his parent's homeowner's policy. The insurer denied coverage, citing the act exclusion of the policy, which stated that the insurance does not apply to bodily injury which results directly or indirectly from an act of the wording slightly different from the act exclusions of most liability policies (which normally state that coverage is precluded when the loss is or intended from the standpoint of the insured). The Court held that the policy's limiting language precluded coverage where the injury in question was intentionally caused, but did not bar coverage simply because the conduct at issue was volitional. For example, Gamache may have intended to lash out at the policemen in order to avoid being restrained or to continue fighting his nonpolice opponents. But this behavior by Gamache may not have aimed to injure the policy officer. To avoid coverage, the insurer would be required to demonstrate at trial that the injury was subjectively intended by the insured, not merely that the insured voluntarily engaged in the conduct that caused the injury or that a reasonable person in the position of the insured would have expected the injury to result as a consequence of the insured's voluntary conduct. See 426 Mass. at 93-94. Although the Supreme Judicial Court is not clear on the burden of proof, its affirmance of the Appeals Court decision in Gamache shows that on remand, the insurer is required to prove the requisite degree of intent to injure in order to avoid coverage because the act language is contained in a policy Exclusion. See Preferred Mutual Ins. Co. v. Gamache, 675 N.E. 2d 438, 42 Mass. App. Ct. 194 (1997). Although the intended injury defense has come to be known by the shorthand reference of the intentional act its limitations on coverage are often contained in the insuring agreement, which provides coverage for an occurrence and defines a covered occurrence as loss not expected or intended by the insured. Even where the act limitation is not in the Exclusions section of the policy per se, many courts place the burden of persuasion on the insurer because the injury limitation operates in the nature of an exclusion, wherever it is located in the policy. In taking this position, the Massachusetts High Court aligned itself with the majority of jurisdictions, adopting the so-called subjective approach to construing the act exclusion (focusing on what the insured in question intended) rather than using an objective approach (what a reasonable insured should have expected from his or her behavior). …