Deliberate Conduct Is Not An “Accident”
General liability coverage is typically triggered by an “occurrence,” which is defined, in part, as an accident that causes bodily injury or property damage for which the insured is responsible. Musick Peeler’s recent summary judgment success in District Court underscores the rule that deliberate acts of the insured that cause injury do not constitute an accident under California insurance law, even if they are alleged to have caused unexpected harm. Musick Peeler partners Steve Elie and Chad Westfall recently obtained an order granting summary judgment in favor of an insurer client on this basis.
The insured had been accused of three instances of sexual misconduct: ripping off the claimant’s sweater; touching the claimant between her legs while she was sleeping; and forcibly raping the claimant. The insurer denied coverage based on the lack of an “occurrence” and the insured sued for breach of contract and bad faith, arguing there was a potential for coverage because the claimant consented to the insured’s sexual conduct.
In ruling in favor of the Insurer, the District Court agreed with Musick Peeler’s argument that the meaning of the term “accident” is settled under California law and refers to the conduct of the insured for which liability is sought to be imposed, not to an act’s consequences. Indeed as explained by the California Supreme Court in Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., 5 Cal. 5th 216, 225 (2018), “[a]n accident . . . is never present when the insured performs a deliberate act unless some additional, unexpected, independent, or unforeseen happening occurs that produces the damage.” The District Court explained that whether the claimant consented is beside the point. The relevant question was whether the insured intended to engage in the acts for which he was sued.
Turning to the facts of the matter before it, the District Court found it was undisputed that the insured’s sexual conduct was intentional and there was no evidence in the record, which included pretrial allegations, allegations in the claimant’s civil complaint against the insured and discovery in that lawsuit, that any unexpected, unforeseen, or undersigned happening occurred. As a result, the Court found there was no potential coverage for the claims against the insured, granted the insurer’s motion, and denied the insured’s cross-motion.