The Iowa Supreme Court reversed the trial court and held that alleged acts of gross negligence may constitute an occurrence. T.H.E. Insurance Co. v. Glen, 2020 Iowa LEXIS 64 (Iowa June 5, 2020).

    Stephen Booher was a seasonal employee at Adventureland Amusement Park. He had been recently employed as a loading assistant on the Raging River ride. Stephen Glen was the ride operator of the Raging River. Booher allegedly suffered fatal injuries when he was jerked of his feet and fell onto the moving belt of the ride. Plaintiffs, Booher's estate, alleged Glen had been grossly negligent by among other things, failing to check the ride before starting it, starting the ride without knowing whether Booher was ready, causing Booher to topple on the ride's exposed conveyor belts, failure to watch the ride for the entirety of its operation, etc.

   When the estate sued, Adventureland tendered to its insurer, T.H.E. Insurance Company (THE). THE filed a declaratory judgment action, alleging that the allegations of gross negligence did not amount to an "accident" and caused an "expected" injury under the CGL policy. The parties cross-moved for summary judgment. The lower court granted summary judgment to THE. 

    On appeal, the Iowa Supreme Court considered whether the gross negligence claim brought by the Booher estate was covered. Gross negligence was defined by Iowa statute as an act "amounting to wanton neglect for the safety of another." Based upon Iowa case law, it was possible that a factfinder could determine that a co-employee acted without intent to harm. Further, one could act with the expectation that an injury was more likely than not, but not with the expectation that the injury was highly likely or substantially certain to result. Therefore, some, but not all, acts of gross negligence could be accidents.

    At this early stage of the proceeding, the court was unable say there was no possibility that the Booher estate could not convince a factfinder that it had a claim that amounted to gross negligence but was within the scope of coverage under the CGL policy.