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Recovery for domestic abuse: victims of domestic violence can fight back, with the law and good lawyers on their side. Insurance coverage or personal injury lawsuits may provide compensation for injuries.

Article Excerpt
Many lawyers don't see the potential to recover civil damages in domestic abuse or assault cases. But domestic violence cases that involve physical or mental abuse often belong in civil rather than family court, especially if you want your client to recover real "equitable distribution." Simply put, these cases can be viewed as personal injury cases, which may give rise to direct liability on the part of the tortfeasor or third party liability on the part of a person or agency that had a duty of care to protect the plaintiff.

The direct personal injury action against the domestic violence tortfeasor follows the same format as an auto or medical malpractice case and may be framed as an action for assault, battery, or emotional distress (either intentionally or negligently inflicted). Depending on the law in your jurisdiction--and your creativity in drafting and arguing your client's claims--you may be able to obtain insurance coverage for the injuries. These cases are highly fact-specific and depend heavily on the law in the jurisdiction where they are brought. In many domestic violence cases, these remedies will be unavailable. But they should be explored in every case, so that every victim of domestic abuse is compensated as fully as the law allows.

Insurance coverage

Homeowners insurance. Most homeowners policies exclude coverage for intentional acts. However, there is a distinction between intended acts and unintended consequences, as the North Carolina Supreme Court discussed in North Carolina Farm Bureau Mutual Insurance Co. v. Stox. (1)

The defendant in Stox intentionally pushed the plaintiff from a bar stool, telling her to get away from the person she was talking to. The plaintiff fell and broke her arm. The court held that although the act of pushing the plaintiff from the stool was intentional, the plaintiff's broken arm was neither intended nor foreseen. (2)

Experts on domestic violence say it is less about the abuse itself than it is about control. An abuser often pushes and shoves not in an attempt to injure but in an attempt to control, induce fear, or vent anger. When an injury occurs, it is often an unintended and unforeseen consequence of a cowardly--and malicious and intentional--act. It can be argued that when someone is pushed, injury may be foreseeable, but are the nature and extent of the injury always foreseeable? Stox and cases with similar holdings (3) make this an interesting area for the adept litigator.

Because of possible liability arising from such cases, insurance companies have tried to close loopholes. In North Carolina, for example, the standard language of the HO-3 homeowners policy--which covers all types of damage except those specifically excluded by the policy--was quickly changed. Many insurance companies nationwide have placed broad "criminal acts" or "illegal acts"...

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