Harris V. Jones Analysis

Finally, in the fifth count of her complaint, Ellina states a claim for intentional infliction of emotional distress (“IIED”). “[T]o impose liability for intentional infliction of emotional distress: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe.” Harris v. Jones, 281 Md. 560, 566 (1977). Critically, the intent requirement of the tort requires the tortfeasor to have acted intentionally or recklessly. Indeed, in her complaint, Ellina alleges that Gil “intentionally and/or recklessly engaged in conduct . . .” If Gil acted intentionally, then Amica would have no obligation to indemnify him because exclusion 2(a) would apply. If, however, Gil acted merely recklessly, then exclusion 2(a) would be inapplicable.

Restatement (Second) of Torts § 8A (Intent means “the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”). Critically, exclusion 2(a) only applies when the actor has the subjective knowledge that his conduct will inflict “personal injury.” In the present complaint, if Gil acted intentionally, then he would have harbored such a subjective intent. The allegations against Gil as pleaded in Ellina’s complaint, however, leave open the potential that Gil merely acted recklessly. Therefore, Amica may not disclaim its duty to defend Gil against the allegations of IIED based on exclusion number