Supreme Court of California Justia
Citation 47 Cal. 4th 302, 211 P.3d 1083, 97 Cal. Rptr. 3d 298

Delgado v. Interinsurance Exchange etc.

Filed 8/3/09

IN THE SUPREME COURT OF CALIFORNIA

JONATHAN DELGADO,
Plaintiff and Appellant,
S155129
v.
Ct.App. 2/3 B191272
INTERINSURANCE EXCHANGE OF
THE AUTOMOBILE CLUB OF
SOUTHERN CALIFORNIA,
Los Angeles County
Defendant and Respondent.
Super. Ct. No. VC045588

This case involves an insurance policy that covers injury resulting from “an
accident.” After an assault and battery by the insured, the injured party sued the
insured, alleging that the insured had acted under the unreasonable belief of
having to defend himself, an act that according to the injured party fell within the
policy‟s coverage of “an accident.” Does the insurance company have a duty to
defend that action? The answer is “no.” We therefore reverse the judgment of the
Court of Appeal, which had reversed the trial court.
I
Interinsurance Exchange of the Automobile Club of Southern California
(ACSC) issued to Craig Reid a homeowner‟s insurance policy providing liability
coverage for up to $100,000. On November 7, 2003, while the policy was in
effect, insured Reid hit and kicked 17-year-old Jonathan Delgado.
1



In March 2004, Delgado sued Reid. The complaint alleged two causes of
action. The first alleged an intentional tort in that Reid “in an unprovoked fashion
and without any justification physically struck, battered and kicked” Delgado.
The second cause of action alleged that Reid “negligently and unreasonably
believed” he was engaging in self-defense “and unreasonably acted in self defense
when [Reid] negligently and unreasonably physically and violently struck and
kicked minor Jonathan Delgado repeatedly causing serious and permanent
injuries.”
Reid tendered to ACSC the defense of Delgado‟s lawsuit. ACSC denied
coverage and refused to provide Reid a defense. ACSC asserted that the assault
was not covered because it was not an “occurrence,” which was defined in the
policy as an “accident,” and that the complaint‟s allegations arose out of Reid‟s
intentional acts, which came within the policy‟s intentional acts exclusion.
In January 2005, the trial court, at Delgado‟s request, dismissed the
intentional tort claim. Delgado and Reid then settled the action by stipulating that
Reid‟s use of force occurred because he negligently believed he was acting in self-
defense, and by stipulating to entry of a $150,000 judgment against Reid. Later,
Reid agreed to pay Delgado $25,000 and he assigned to Delgado Reid‟s claims
against his insurer, ACSC; Delgado in turn agreed to give Reid a partial satisfaction
of judgment and a covenant not to execute on the remainder of the judgment.
Delgado then brought this action against ACSC. The trial court sustained
ACSC‟s demurrer on the ground that no facts were pled to establish coverage
under the policy, but the court allowed Delgado leave to amend the complaint.
Delgado then filed a first amended complaint alleging, on information and belief,
that at the time of the incident the insured, Reid, acted “without intent to injure”
Delgado “but with intent to defend himself and his family . . . from what [Reid]
perceived was an imminent threat of harm . . . .” It further alleged that Reid‟s
2
“reaction to what he perceived was an imminent threat of harm was an
overreaction, [was] not willful or malicious, and was an accident . . . within the
meaning of Reid‟s insurance policy.”
The first amended complaint alleged two causes of action seeking
declarations from the trial court that ACSC had a duty to defend and indemnify its
insured, Reid, in the underlying lawsuit brought by Delgado; one cause of action
brought under Insurance Code section 11580, subdivision (b)(2), in which
Delgado sought to recover from ACSC as a judgment creditor of ACSC‟s insured,
Reid; and three causes of action alleging bad faith — one for failure to defend, one
for refusal to indemnify, and one for failure to pay medical benefits.
ACSC demurred to the first amended complaint. At the hearing on the
demurrer, the trial court asked Delgado‟s counsel what facts were alleged
regarding the events that led insured Reid to think he was acting in self-defense.
Counsel responded: “We can‟t allege facts leading up to what happened when my
client was ultimately struck. We can‟t allege those facts.”
The trial court sustained ACSC‟s demurrer without leave to amend, finding
that the settlement and stipulated judgment between Reid and Delgado were
“contrived” to expose ACSC to liability, that it was “disingenuous at best” to
characterize insured Reid‟s assault and battery as an “accident,” and that there
were no facts alleged to support Delgado‟s claim that Reid believed he was acting
in self-defense.
The Court of Appeal reversed. After stating that allegations of harmful acts
done with an unreasonable belief in self-defense describe conduct that is “properly
characterized as nonintentional tortious conduct,” the Court of Appeal concluded
that Delgado‟s first amended complaint alleged acts by insured Reid that
potentially were an “accident” covered by the policy.
We granted ACSC‟s petition for review.
3
II
As mentioned earlier, in this case the trial court sustained ACSC‟s demurrer
to Delgado‟s complaint without leave to amend. In reviewing the ensuing
judgment of dismissal, “we treat the demurrer as admitting all material facts
properly pleaded, but do not assume the truth of contentions, deductions or
conclusions of law.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859,
865.)
At issue here is whether the insurer had a duty to defend its insured in an
action brought by a third party.1 To prevail in an action seeking declaratory relief
on the question of the duty to defend, “the insured must prove the existence of a
potential for coverage, while the insurer must establish the absence of any such
potential. In other words, the insured need only show that the underlying claim
may fall within policy coverage; the insurer must prove it cannot.” (Montrose
Chemical Corp. v. Superior Court, supra, 6 Cal.4th at p. 300.) The duty to defend
exists if the insurer “becomes aware of, or if the third party lawsuit pleads, facts
giving rise to the potential for coverage under the insuring agreement.” (Waller v.
Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19.) We look first to the terms of
the policy. (Ibid.)
ACSC‟s policy provides liability coverage for bodily injury caused by an
“occurrence,” which the policy defines as “an accident . . . which, during the

1
Because the duty to defend is broader than the duty to indemnify (Montrose
Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 299), a conclusion that
here ACSC did not have a duty to defend will be dispositive of plaintiff Delgado‟s
claim that ACSC had a duty to indemnify. That conclusion is also dispositive of
Delgado‟s claim that he is a judgment creditor under Insurance Code section
11580, subdivision (b)(2). Under that statute, an action by a judgment creditor of
an insured against an insurance company is “on the policy and subject to its terms
and limitations . . . .”
4


policy period, results in bodily injury . . . .” In the context of liability insurance,
an accident is “ „an unexpected, unforeseen, or undesigned happening or
consequence from either a known or an unknown cause.‟ ” (Geddes & Smith, Inc.
v. St. Paul Mercury Indemnity Co. (1959) 51 Cal.2d 558, 563-564 (Geddes);
accord, Hogan v. Midland National Ins. Co. (1970) 3 Cal.3d 553, 559.) “This
common law construction of the term „accident‟ becomes part of the policy and
precludes any assertion that the term is ambiguous.” (Collin v. American Empire
Ins. Co. (1994) 21 Cal.App.4th 787, 810; see Bartlome v. State Farm Fire &
Casualty Co. (1989) 208 Cal.App.3d 1235, 1239.)
Here, injured party Delgado contends that because insured Reid‟s assault
and battery was motivated by an unreasonable belief in the need for self-defense,
the act fell within the policy‟s definition of “an accident,” because from the
perspective of the injured party the assault was “unexpected, unforeseen, and
undesigned.” We disagree that whether there was an “accident” within the policy
language must be determined from the injured party‟s perspective.
In support of his contention, Delgado points to certain language by this
court in Geddes, supra, 51 Cal.2d at page 563. This court there stated: “No all-
inclusive definition of the word „accident‟ can be given. It has been defined „as “a
casualty — something out of the usual course of events and which happens
suddenly and unexpectedly and without design of the person injured.” ‟ ” Geddes
went on to state that the term “accident” “ „ “includes any event which takes place
without the foresight or expectation of the person acted upon or affected by the
event.” ‟ ” (Ibid.) It is this italicized sentence on which Delgado relies. But that
language should be read in context, not in isolation, as Delgado does. Geddes
quoted several sources that had defined “accident.” The italicized sentence on
which Delgado relies is only one of those definitions. Immediately after the
sentence in question, Geddes quoted this definition of “accident”: “ „Accident, as
5
a source and cause of damage to property, within the terms of an accident policy,
is an unexpected, unforeseen, or undesigned happening or consequence from
either a known or an unknown cause.‟ ” (Id. at pp. 563-564.) Notably, this quoted
definition lacks any mention of the need to consider the perspective of the injured
party. And it was this definition of “accident” that this court in Geddes applied to
the case before it. As Geddes pointed out, it is the “unexpected, undesigned, and
unforeseen” nature of the injury-causing event that determines whether there is an
“accident” within the policy‟s coverage. (Id. at p. 564.)
Similarly misplaced is Delgado‟s reliance on this court‟s later decision in
Hogan v. Midland National Ins. Co., supra, 3 Cal.3d 553. Hogan held that to the
extent the property damage that the injured party incurred there was the result of
the injured party‟s deliberate acts, “no accident occurred within the Geddes []
definition.” (Id. at p. 560.) Hogan did not hold that whether an event is an
“accident” is, as Delgado would have us conclude, to be determined from the
perspective of the injured party independent of the insured‟s intention. Indeed,
Hogan concluded that a deliberate act causing an injury is not an accident. (Ibid.)
Delgado‟s contention does find support in some language from Maxon v.
Security Ins. Co. (1963) 214 Cal.App.2d 603 (Maxon). The Court of Appeal there
held that an insurance company was not obligated to defend its insured against a
claim of malicious prosecution by a third party. (Id. at p. 617.) Although
unnecessary to its decision, Maxon nevertheless discussed whether malicious
prosecution was an “accident” within the coverage of the insurance policy there in
issue. In the course of that discussion, Maxon quoted the same language from this
court‟s decision in Geddes, supra, 51 Cal.2d at page 563, on which Delgado relies:
“ „ “[Accident] includes any event which takes place without the foresight or
expectation of the person acted upon or affected by the event.” ‟ ” Based on that
language from Geddes, Maxon stated that the third party‟s claim against the
6
insured for malicious prosecution was based on an accident, reasoning that the
arrest and prosecution of a person who is innocent and has no reason to expect an
arrest “is, as to such person, an accident.” (Maxon, supra, at p. 612.) Maxon‟s
reliance on the Geddes language was wrong. As we explained earlier, that
language played no role in the holding that Geddes ultimately reached: that the
injury there was caused by an accident because it was “unexpected, undesigned,
and unforeseen” (Geddes, supra, 51 Cal.2d at p. 564), and not because the injury
was unexpected by the injured party.
Were we to accept Delgado‟s argument that any interpretation of the policy
term “accident” should be based solely on whether the injury-causing event was
expected, foreseen, or designed by the injured party, then intentional acts that by
no stretch could be considered accidental nevertheless would fall within the
policy‟s coverage of an “accident.” Under Delgado‟s reasoning, even child
molestation could be considered an “accident” within the policy‟s coverage,
because presumably the child neither expected nor intended the molestation to
occur. (See J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1028,
fn. 17 [“[T]he very notion of „accidental‟ child molestation is implausible”].)
Other examples that come to mind are arson, robbery, and premeditated murder,
which are acts that do not fit the common understanding of the word “accident”
because they involve acts intentionally done with the intent to cause harm.
Delgado contends that ACSC could have included in the policy‟s coverage
of an “accident” the phrase “from the standpoint of the insured,” if the insurer‟s
intent was to have the word “accident” defined from the perspective of the insured
as opposed to that of the injured party. In support, he points out that earlier
standard comprehensive general liability policies defined the word “occurrence”
as “ „an accident . . . which results in bodily injury or property damage neither
7
expected nor intended from the standpoint of the insured.‟ ” (2 Croskey et al., Cal.
Practice Guide: Insurance Litigation (The Rutter Group 2008) ¶ 7:42.1, p. 7A-13.)
We are not persuaded that because the coverage clause of ACSC‟s policy
does not use the words “neither expected nor intended from the standpoint of the
insured,” the word “accident” as used in the policy means that whether an event is
an accident must be determined from the injured party‟s viewpoint. The phrase
“neither expected nor intended from the standpoint of the insured” in earlier
comprehensive general liability policies has been construed as modifying the
policy term “injury and damages,” not “accident.” (See City of South El Monte v.
Southern Cal. Joint Powers Ins. Authority (1995) 38 Cal.App.4th 1629, 1646;
United Pacific Ins. Co. v. McGuire Co. (1991) 229 Cal.App.3d 1560, 1566;
Commercial Union Ins. Co. v. Superior Court (1987) 196 Cal.App.3d 1205, 1209.)
We note that in 1985 that phrase was deleted from the standard comprehensive
general liability policy coverage clauses because of conflicting judicial
interpretations of the phrase. Some courts had conflated the concept of “an
accident” with the phrase “neither expected nor intended from the standpoint of
the insured.” This led those courts to “conclud[e] that an „accident‟ refers to an
unexpected or unintended injury.” (3 New Appleman, Insurance Law: Practice
Guide (2008) ¶ 30.07[4], pp. 30-48.) Other courts, however, “concluding that the
terms are different and have their own meanings, held that the „occurrence‟
definition is limited to events that are accidental in nature, and the rest of the
definition merely confirms that expected or intended injuries are not „accidental.‟ ”
(Ibid.)
Under California law, the word “accident” in the coverage clause of a
liability policy refers to the conduct of the insured for which liability is sought to
be imposed on the insured. (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th
583, 596; Collin v. American Empire Ins. Co., supra, 21 Cal.App.4th at p. 804.)
8
This view is consistent with the purpose of liability insurance. Generally, liability
insurance is a contract between the insured and the insurance company to provide
the insured, in return for the payment of premiums, protection against liability for
risks that are within the scope of the policy‟s coverage. Insurance policies are
read in light of the parties‟ reasonable expectations and, when ambiguous, are
interpreted to protect the reasonable expectations of the insured. (State of
California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1018, 1026.) Therefore, the
appropriate inquiry here is not, as Delgado would have it, confined to viewing the
pertinent event from the perspective of the injured party.
Delgado insists that an insured‟s unreasonable, subjective belief in the need
for self-defense converts into “an accident” an act that is purposeful and intended
to inflict injury. We disagree.
We begin by noting that an injury-producing event is not an “accident”
within the policy‟s coverage language when all of the acts, the manner in which
they were done, and the objective accomplished occurred as intended by the actor.
(Hogan v. Midland National Ins. Co., supra, 3 Cal.3d at p. 560; Stellar v. State
Farm General Ins. Co. (2007) 157 Cal.App.4th 1498, 1505; Merced Mutual Ins.
Co. v. Mendez (1989) 213 Cal.App.3d 41, 50.) Here, insured Reid‟s assault and
battery on Delgado were acts done with the intent to cause injury; there is no
allegation in the complaint that the acts themselves were merely shielding or the
result of a reflex action. Therefore, the injuries were not as a matter of law
accidental, and consequently there is no potential for coverage under the policy.
(Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 655.)
We also note that in a number of contexts other than those involving claims
pertaining to assault and battery, which is the conduct at issue here, courts have in
insurance cases rejected the notion that an insured‟s mistake of fact or law
transforms a knowingly and purposefully inflicted harm into an accidental injury.
9
(E.g., Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d 41 [oral
copulation and attempted oral copulation not an accident notwithstanding
insured‟s mistaken belief that victim consented]; Collin v. American Empire Ins.
Co., supra, 21 Cal.App.4th 787 [misunderstanding of legal rights did not turn
conversion of property into an accident]; Quan v. Truck Ins. Exchange, supra, 67
Cal.App.4th 583 [rape not transformed into an accident notwithstanding insured‟s
mistaken belief that victim consented]; Swain v. California Casualty Ins. Co.
(2002) 99 Cal.App.4th 1 [mistaken belief that acts were lawful did not render
wrongful eviction of tenant an accident]; Lyons v. Fire Ins. Exchange (2008) 161
Cal.App.4th 880 [insured‟s subjective miscalculation of victim‟s state of mind did
not make sexual attack an accident]; see J. C. Penney Casualty Ins. Co. v. M. K.,
supra, 52 Cal.3d 1009 [homeowner‟s policy as a matter of law did not provide
coverage for child molestation regardless of lack of intent to harm].)
Here, injured party Delgado advances two different arguments to support
his claim that, unlike the above-cited decisions pertaining to oral copulation,
conversion, rape, wrongful eviction, and child molestation, an actor‟s
unreasonable belief in the need for self-defense converts an assault and battery
into an unintentional act and therefore is “an accident” within the policy‟s
coverage. We reject these contentions.
Delgado‟s first argument relies on a statement by this court in Gray v.
Zurich Insurance Co. (1966) 65 Cal.2d 263 (Gray). The issue there was whether
an insurance company had a duty to defend an action alleging that the insured had
“ „willfully, maliciously, brutally and intentionally assaulted‟ ” the plaintiff. (Id.
at p. 267.) Unlike the case now before us, the policy‟s coverage clause in Gray
did not define coverage in terms of injuries resulting from “an accident.” It stated
that the insurer would defend its insured against “ „any suit‟ ” alleging “ „bodily
injury or property damage . . . even if any of the allegations are groundless, false
10
or fraudulent.‟ ” (Ibid.) In discussing the scope of the policy‟s exclusion for
intentional injury and the rules allowing liberal amendments to pleadings, Gray
remarked that the insured “might have been able to show that in physically
defending himself, even if he exceeded the reasonable bounds of self-defense, he
did not commit wilful and intended injury, but engaged only in nonintentional
tortious conduct.” (Gray, supra, 65 Cal.2d at p. 277, italics added.) Delgado
relies on that statement from Gray and on several cases that have cited Gray for
the proposition that acts done in self-defense are unintentional and therefore
accidental.
That reliance is misplaced. Gray and the cases that have cited it pertained
to the question of unreasonable use of force or unreasonable self-defense in the
context of an insurance policy‟s exclusionary clauses, not as here in the context of
a policy‟s coverage clause. (Gray, supra, 65 Cal.2d at p. 266; Quan v. Truck Ins.
Exchange, supra, 67 Cal.App.4th at pp. 595-596; David Kleis, Inc. v. Superior
Court (1995) 37 Cal.App.4th 1035, 1048; Merced Mutual Ins. Co. v. Mendez,
supra, 213 Cal.App.3d at p. 47; Royal Globe Ins. Co. v. Whitaker (1986) 181
Cal.App.3d 532, 537; Mullen v. Glens Falls Ins. Co. (1977) 73 Cal.App.3d 163,
170.) At issue here is whether unreasonable self-defense comes within the
policy‟s coverage for “an accident,” not whether it falls within a particular policy
exclusion.
Moreover, Gray did not say that an unreasonable belief in self-defense will
convert into unintentional acts any purposeful acts that were done with intent to
harm. The insurance company in Gray contended that it was not obligated to
defend its insured against a claim of assault because the policy excluded coverage
for “ „bodily injury or property damages caused intentionally by or at the direction
of the insured.‟ ” (Gray, supra, 65 Cal.2d at p. 267.) “ „[A]lthough exclusions are
construed narrowly and must be proven by the insurer, the burden is on the insured
11
to bring the claim within the basic scope of coverage, and (unlike exclusions)
courts will not indulge in a forced construction of the policy‟s insuring clause to
bring a claim within the policy‟s coverage.‟ ” (Waller v. Truck Ins. Exchange,
Inc., supra, 11 Cal.4th at p. 16, quoting Collin v. American Empire Ins. Co., supra,
21 Cal.App.4th at p. 803.) A policy clause excluding intentional injury, such as
the one in Gray, is treated as having the same meaning as the language in
Insurance Code section 533, which provides that an insurance company is not
liable for a loss caused by a willful act of the insured. (Allstate Ins. Co. v. Overton
(1984) 160 Cal.App.3d 843.)
Gray, supra, 65 Cal.2d at page 277, stated that an unreasonable belief in the
need for self-defense could remove the resulting act from the reach of the policy‟s
exclusion clause for intentional acts (that is, makes the act “nonintentional”).
Gray did not say, however, that such a belief would convert an intentional act into
an unintentional act, as Delgado here asserts. Acceptance of Delgado‟s argument
would render Gray‟s statement nonsensical, because a purposeful and intentional
act remains purposeful and intentional regardless of the reason or motivation for
the act. (Hogan v. Midland National Ins. Co., supra, 3 Cal.3d at p. 560 [whatever
the motivation, a deliberate and calculated act is not an accident]; Lyons v. Fire
Ins. Exchange, supra, 161 Cal.App.4th at p. 889 [mental miscalculation of
victim‟s state of mind does not transform intentional conduct done with
knowledge of objective facts into an accident]; Swain v. California Casualty Ins.
Co., supra, 99 Cal.App.4th at p. 10 [“We know of no case from this or any other
jurisdiction where a harm knowingly and purposefully inflicted was held
12
„accidental‟ merely because the person inflicting it erroneously believed himself
entitled to do so”].)2
Delgado‟s second argument — that an insured‟s mistaken and unreasonable
belief in the need for self-defense converts the assault into an accidental act — is
based on the notion that a provocative act by the injured party turns the insured‟s
physical response into an accidental act. Under this view, the injured party‟s
provocative acts are unforeseen and unexpected from the perspective of the
insured, making the insured‟s responsive acts unplanned and therefore accidental,
triggering the policy‟s coverage for “an accident.”
The source of that argument is a statement by the Court of Appeal in
Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d 41. There the court, in

2
Delgado‟s amicus curiae Steven W. Murray cites this court‟s decision in
Lowell v. Maryland Casualty Co. (1966) 65 Cal.2d 298 as supporting Delgado‟s
claim that acts done in self-defense are accidents. Lowell, however, is readily
distinguishable from this case. There the policy provided coverage for injuries
caused by an accident. The third party sued the insured, alleging assault and
battery; the insured tendered the defense of that action to the insurance company,
asserting that the assault and battery never happened. (Id. at p. 300.) This court
held that the insurance company had a duty to defend because the policy promised
to defend the insured even against groundless claims, because language in the
policy‟s exclusion clause stated that assault and battery “ „shall be deemed an
accident unless committed by or at the direction of the insured,‟ ” and because the
exclusionary language was not conspicuous, plain and clear. This court, without
further reference to the language in the policy‟s exclusion clause regarding
assaultive conduct committed by the insured, stated that the policy there
“categorically states that assault and battery is to be deemed an accident, covered
by the policy.” (Id. at p. 301.) Lowell reasoned that there the insured could
reasonably expect a defense, as the policy stated that the insurer would defend
against groundless claims and that “ „[a]ssault and battery shall be deemed an
accident . . . .‟ ” (Ibid.) There is nothing in the policy now before us that would
support a conclusion that the insured reasonably expected a defense. Here, unlike
the situation in Lowell, nothing in the policy defines an assault and battery as
accidental conduct.
13


rejecting the argument that an “accident” may have occurred because the insured
mistakenly believed the victim consented to a sexual battery and assault, stated
that “an „accident‟ exists when any aspect in the causal series of events leading to
the injury or damage was unintended by the insured and a matter of fortuity.” (Id.
at p. 50, italics added.) The premise of Delgado‟s argument is that whenever a
provocative act by the injured person is part of the causal chain of events that
ultimately led to the insured‟s injury-causing conduct — here an assault and
battery — the insured‟s conduct should be considered accidental.
Delgado overlooks the context in which the Court of Appeal in Merced
Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d at page 50, made the statement
in question. In the same paragraph, the court also observed: “An accident,
however, is never present when the insured performs a deliberate act unless some
additional, unexpected, independent, and unforeseen happening occurs that
produces the damage. [Citation.] Clearly, where the insured acted deliberately
with the intent to cause injury, the conduct would not be deemed an accident.”
(Ibid.) Thus, the statement upon which Delgado relies — that an accident exists
whenever any part of the causal events leading to the injury was unintended —
referred to events in the causal chain after the acts of the insured, not to events
preceding the acts of the insured.
Here, Delgado‟s complaint alleges acts of wrongdoing by the insured
against him. Those are the acts that must be considered the starting point of the
causal series of events, not the injured party‟s acts that purportedly provoked the
insured into committing assault and battery on Delgado. The term “accident” in
the policy‟s coverage clause refers to the injury-producing acts of the insured, not
those of the injured party. (Quan v. Truck Ins. Exchange, supra, 67 Cal.App.4th at
p. 596; Collin v. American Empire Ins. Co., supra, 21 Cal.App.4th at p. 804.) In
determining whether the injury is a result of an accident, taking into consideration
14
acts or events before the insured‟s acts would be illogical and contrary to
California case law.
“Any given event, including an injury, is always the result of many causes.”
(1 Dobbs, The Law of Torts (2001) § 171, p. 414.) For that reason, the law looks
for purposes of causation analysis “to those causes which are so closely connected
with the result and of such significance that the law is justified in imposing
liability.” (Prosser and Keeton on Torts (5th ed. 1984) § 41, p. 264.) In a case of
assault and battery, it is the use of force on another that is closely connected to the
resulting injury. To look to acts within the causal chain that are antecedent to and
more remote from the assaultive conduct would render legal responsibilities too
uncertain. “When a driver intentionally speeds and, as a result, negligently hits
another car, the speeding would be an intentional act. However, the act directly
responsible for the injury—hitting the other car—was not intended by the driver
and was fortuitous. Accordingly, the occurrence resulting in injury would be
deemed an accident.” (Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d
at p. 50; see Quan v. Truck Ins. Exchange, supra, 67 Cal.App.4th at p. 600, fn. 16;
see generally Maples v. Aetna Cas. & Surety Co. (1978) 83 Cal.App.3d 641, 647-
648 [“the term „accident‟ unambiguously refers to the event causing damage, not
to the earlier event creating the potential for future injury”].)
Delgado‟s argument that the insured‟s assault was an accidental act because
a provocative act by the injured party was unforeseen and unexpected would also
be inconsistent with California case law. In Quan v. Truck Ins. Exchange, supra,
67 Cal.App.4th 583, the insured was sued for assault and battery based upon the
insured‟s act of forcibly raping the victim. (Id. at pp. 587, 588, fn. 5.) In his
action against his insurance company for breach of the duty to defend, the insured
argued that there was a potential for coverage under a policy insuring against
bodily injury caused by an accident (id. at p. 592) because he could simply be
15
found negligent or “found to have mistakenly believed the claimant had
„consented‟ ” (id. at p. 596). Quan rejected the argument that the victim‟s
antecedent act that induced the insured‟s mistaken belief in consent converted the
forcible rape into an “accident.” Quan first observed that to determine whether an
injury resulted from an accident, and thus falls within the policy‟s coverage, one
needs to consider the nature of the insured‟s act. Quan then concluded that the
insured‟s conduct could not have been accidental because it was intentional, and
that an unreasonable belief in the victim‟s consent could not alter the nature of the
act of forcible rape itself. (Id. at pp. 596-598.) Other courts have come to similar
conclusions. (E.g., Lyons v. Fire Ins. Exchange, supra, 161 Cal.App.4th 880
[false imprisonment relating to alleged sexual attack not an accident even when
insured may have acted under mistaken belief victim would not rebuff advances];
Modern Development Co. v. Navigators Ins. Co. (2003) 111 Cal.App.4th 932, 942
[“A mistake of fact in an employment termination does not transform the
intentional act of terminating an employee into an accident”]; Swain v. California
Casualty Ins. Co., supra, 99 Cal.App.4th 1 [insured‟s belief that he was entitled to
inflict harm does not transform wrongful eviction into an accident]; Merced
Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d 41 [unreasonable belief in
victim‟s consent did not make oral copulation and attempted oral copulation an
accident].)
We conclude here that an insured‟s unreasonable belief in the need for self-
defense does not turn the resulting purposeful and intentional act of assault and
battery into “an accident” within the policy‟s coverage clause. Therefore, the
insurance company had no duty to defend its insured in the lawsuit brought against
him by the injured party.
16

The judgment of the Court of Appeal is reversed.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

17


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Delgado v. Interinsurance Exchange of the Automobile Club
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 152 Cal.App.4th 671
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S155129
Date Filed: August 3, 2009
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Raul A. Sahagun

__________________________________________________________________________________

Attorneys for Appellant:

Glaser & Damone, Glaser, Damone & Schroeder and Robert P. Damone for Plaintiff and Appellant

Dickstein Shapiro, Kirk A. Pasich, Cassandra S. Franklin and Stephanie A. Sullins for United Policyholders
as Amicus Curiae on behalf of Plaintiff and Appellant.

Steven W. Murray as Amicus Curiae on behalf of Plaintiff and Appellant.

Law Office of Daniel U. Smith, Daniel U. Smith; Law Office of Gary L. Simms and Gary L. Simms for
Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.


__________________________________________________________________________________

Attorneys for Respondent:

Reed Smith, Margaret Grignon, Judith E. Posner; Ford, Walker, Haggerty & Behar, Timothy L. Walker,
Donna Rogers Kirby, Maxine J. Lebowitz and K. Michele Williams for Defendant and Respondent.

Sonnenschein Nath & Rosenthal, Paul E. B. Glad, Michael A. Barnes and David R. Simonton for
Association of California Insurance Companies as Amicus Curiae on behalf of Defendant and Respondent.

Summers & Shives, Robert V. Closson and Ian G. Williamson for Employers Mutual Casualty Company as
Amicus Curiae on behalf of Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert P. Damone
Glaser, Damone & Schroeder
400 Oceangate, Suite 800
Long Beach, CA 90802
(562) 983-3130

Kirk A. Pasich
Dickstein Shapiro
2049 Century Park East, Suite 700
Los Angeles, CA 90067-3109
(310) 772-8300

Daniel U. Smith
Law Office of Daniel U. Smith
21 Rancheria Road
Kentfield, CA 94904-2833
(415) 461-5630

Margaret Grignon
Reed Smith
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
(213) 457-8000


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: When a liability policy covers injury arising from an "occurrence," which is defined as an "accident," does the insurer have a duty to defend an action for assault if the complaint alleges the insured was acting under an unreasonable and negligent belief that he was acting in self-defense?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 08/03/200947 Cal. 4th 302, 211 P.3d 1083, 97 Cal. Rptr. 3d 298S155129Review - Civil Appealopinion issued

JAFARI v. EMC INSURANCE COMPANIES (S157924)
SUTTON v. INTERINSURANCE EXCHANGE (S165269)


Parties
1Delgado, Jonathan (Plaintiff and Appellant)
Represented by Robert Pasquale Damone
Glaser & Damone
400 Oceangate, Suite 800
Long Beach, CA

2Interinsurance Exchange (Defendant and Respondent)
Represented by Judith Esther Posner
Reed Smith, LLP
355 S. Grand Avenue, Suite 2900
Los Angeles, CA

3Interinsurance Exchange (Defendant and Respondent)
Represented by Margaret Anne Grignon
Reed Smith, LLP
355 S. Grand Avenue, Suite 2900
Los Angeles, CA

4Association of California Insurance Companies (Amicus curiae)
Represented by Paul E. B. Glad
Sonnehschein Nath & Rosenthal
525 Market Street, 26th Floor
San Francisco, CA

5Consumer Attorneys Of California (Amicus curiae)
Represented by Daniel U. Smith
Attorney at Law
21 Rancheria Road
Kentfield, CA

6Consumer Attorneys Of California (Amicus curiae)
Represented by Gary L. Simms
Attorney at Law
P.O. Box 96
Ashland, OR

7Employers Mutual Casualty Company (Amicus curiae)
Represented by Robert V. Closson
Summers & Shives
8755 Aero Drive, Suite 230
San Diego, CA

8Murray, Steven W. (Amicus curiae)
Represented by Steven W. Murray
Attorney at Law
14930 Ventura Boulevard, Suite 205
Sherman Oaks, CA

9United Policyholders (Amicus curiae)
Represented by Kirk A. Pasich
Dickstein Shapiro, LLP
2049 Century Park East, Suite 700
Los Angeles, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Disposition
Aug 3 2009Opinion: Reversed

Dockets
Aug 3 2007Petition for review filed
Interinsurance Exchange of the Automobile Club, Respondent Attorney Margaret Grignon
Aug 3 2007Request for depublication (petition for review pending)
Interinsurance Exchange of the Automobile Club, Respondent Attorney Margaret Grignon
Aug 6 2007Record requested
Aug 7 2007Received:
correctd proof of service. re: petition for review [respondenter Interinsurance Exchange ]
Aug 9 2007Received Court of Appeal record
Sep 25 2007Petition for review granted (civil case)
votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, Corrigan, J.J.
Sep 26 2007Letter sent to:
counsels re: Certificate of interested entities or persons
Oct 3 2007Request for extension of time filed
to file Opening brief/merits to 11-30-07 Respondent Interinsurance Exchange of Automobile Club Attorney Judith E. Posner
Oct 3 2007Certification of interested entities or persons filed
Respondent Interinsurance Exchange of Automobile Club Attorney Margaret Anne Grignon
Oct 15 2007Certification of interested entities or persons filed
Johnathan Delgado, appellant Robert Pasquale Damone, Glaser & Damone
Oct 19 2007Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 30, 2007.
Nov 30 2007Opening brief on the merits filed
Respondent Interinsurance Exchange of the Automobile Club Attorney Margaret Grignon
Dec 28 2007Answer brief on the merits filed
Appellant Jonathan Delgado Attorney Robert P. Damone
Jan 8 2008Request for extension of time filed
reply brief/merits to 1-31-08 Respondent Interinsurance Exchange of the Autmobile Club Attorney Judith E. Posner
Jan 11 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 31, 2008.
Jan 31 2008Reply brief filed (case fully briefed)
Interinsurance Exchange of the Automobile Club, respondent Margaret M. Grignon & Judith E. Posner, counsel
Feb 25 2008Received application to file Amicus Curiae Brief
Steven W. Murray , Esq. in support of appellant, Delgado. Application and brief are combined. by counsel, Steven W. Murray.
Feb 29 2008Received application to file Amicus Curiae Brief
United Policyholders [in support of appellant] Attorney Kirk A. Pasich
Feb 29 2008Received application to file Amicus Curiae Brief
Employers Mutual Casualty Company in support of respondent. by counsel, Robertt V. Closson.
Mar 3 2008Permission to file amicus curiae brief granted
The application of Steven W. Murray for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 3 2008Amicus curiae brief filed
Steven W. Murray, Esq. , in support of appellant.
Mar 3 2008Received application to file Amicus Curiae Brief
Consumer Attorneys of California in support of appellant ( Delgado). by counsel, Gary L. Simms.
Mar 3 2008Received application to file Amicus Curiae Brief
Association of California Insurance Companies in support of respondent (Interinsurance Exchange of the Automotive Club) by counsel Paul E. Glad
Mar 5 2008Permission to file amicus curiae brief granted
The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 5 2008Amicus curiae brief filed
Consumer Attorneys of California by counsel, Gary L. Simms.
Mar 5 2008Permission to file amicus curiae brief granted
The application of Association of California Insurance Companies for permission to file an amicus curiae brief in suppport of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 5 2008Amicus curiae brief filed
Association of California Insurance Companies by Paul E. Glad, counsel
Mar 6 2008Permission to file amicus curiae brief granted
The application of United Policyholders for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 6 2008Amicus curiae brief filed
United Policyholders by counsel, Kirk A. Pasich.
Mar 6 2008Permission to file amicus curiae brief granted
The application of Employers Mutual Casualty Company for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 6 2008Amicus curiae brief filed
Employers Mutual Casualty Company by Robert V. Clossen, counsel
Mar 10 2008Amicus curiae brief filed
United Policyholders by Kirk A. Pasich, counsel
Mar 12 2008Request for extension of time filed
to file combined Answer to AC Briefs to 4-10-08 Respondent Interinsurance Exchange of Automobile Club Attorney Judith E. Posner
Mar 18 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file one consolidated answer to amicus curiae briefs is extended to and including April 10, 2008.
Mar 25 2008Response to amicus curiae brief filed
to AC brief of Employers Mutual Insurance Co. Appellant Jonathan Delgado ~Attorney Robert P. Damone
Mar 26 2008Received:
response to AC Brief of Assn of California Ins Companies Appellant Jonathan Delgado Attorney Robert P. Damone [1 day late]
Mar 27 2008Application filed
to file late Response to AC Brief Appellant Jonathan Delgado ~Attorney Robert P. Damone
Apr 1 2008Received:
Notice of Errata to Response to AC Brief of Employers Insurance [to include page 11] by Appellant Jonathan Delgado ~Attorney Robert P. Damone
Apr 9 2008Response to amicus curiae brief filed
Jonathan Delgado, appellant by Robert P. Damone, counsel with permission.
Apr 11 2008Response to amicus curiae brief filed
Combined Response to AC briefs of Consumer Attys, United Policyholders and Steven Murray by Respondent Interinsurance Exchange of Automobile Club ~Attorney Margaret Grignon, etal
Apr 22 2009Case ordered on calendar
to be argued Wednesday, May 27, 2009, at 1:30 p.m., in San Francisco
Apr 30 2009Received:
letter from Kirk A. Pasich, counsel for amicus curiae United Policyholders, requesting 10 minutes of oral argument time.
May 1 2009Filed:
Letter from Robert P. Damone, counsel for appellant Delgado, requesting to divide oral argument time; requesting to share 10 minutes with amicus curiae Consumer Attorneys of California, and 10 minutes with amicus curiae United Policyholders.
May 13 2009Order filed
The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae Consumer Attorneys of California 10 minutes and amicus curiae United Policyholders 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
May 18 2009Received:
letter from counsel for respondent Interinsurance Exchange
May 27 2009Cause argued and submitted
Jul 31 2009Notice of forthcoming opinion posted
Aug 3 2009Opinion filed: Judgment reversed
The judgment of the Court of Appeal is reversed. Opinion by Kennard, J. -----joined by George, C.J., Baxter, J, Werdegar,J., Chin, J., Moreno & Corrigan, JJ.
Aug 18 2009Rehearing petition filed
Jonathan Delgado, Plaintiff and Appellant Robert Damone, Retained counsel
Aug 24 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 2, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 26 2009Answer to rehearing petition filed
Interinsurance Exchange, Defendant and Respondent Margaret Grignon, Retained counsel
Aug 28 2009Order filed
The order filed on August 24, 2009, extending time to grant or deny rehearing to and including November 2, 2009, is amended to reflect the title above.

Briefs
Nov 30 2007Opening brief on the merits filed
Respondent Interinsurance Exchange of the Automobile Club Attorney Margaret Grignon
Dec 28 2007Answer brief on the merits filed
Appellant Jonathan Delgado Attorney Robert P. Damone
Jan 31 2008Reply brief filed (case fully briefed)
Interinsurance Exchange of the Automobile Club, respondent
Mar 3 2008Amicus curiae brief filed
Steven W. Murray, Esq. , in support of appellant.
Mar 5 2008Amicus curiae brief filed
Consumer Attorneys of California
Mar 5 2008Amicus curiae brief filed
Association of California Insurance Companies by Paul E. Glad, counsel
Mar 6 2008Amicus curiae brief filed
United Policyholders
Mar 6 2008Amicus curiae brief filed
Employers Mutual Casualty Company by Robert V. Clossen, counsel
Mar 10 2008Amicus curiae brief filed
United Policyholders by Kirk A. Pasich, counsel
Mar 25 2008Response to amicus curiae brief filed
to AC brief of Employers Mutual Insurance Co. Appellant Jonathan Delgado ~Attorney Robert P. Damone
Apr 9 2008Response to amicus curiae brief filed
Jonathan Delgado, appellant by Robert P. Damone, counsel
Apr 11 2008Response to amicus curiae brief filed
Combined Response to AC briefs of Consumer Attys, United Policyholders and Steven Murray by Respondent Interinsurance Exchange of Automobile Club ~Attorney Margaret Grignon, etal
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by Jamillah Bowman

Facts

On November 7, 2003, insured Craig Reid hit and kicked 17-year-old Jonathan Delgado. Reid’s homeowner’s insurance policy, issued by Interinsurance Exchange of the Automobile Club of Southern California (ACSC) provided liability coverage for up to $100,000. After this assault and battery by the insured, the injured party sued the insured, alleging that 1) he was physically struck, battered and kicked by insured in an unprovoked fashion and without any justification and 2) the insured had acted under the negligent and unreasonable belief of having to defend himself. This act, according to the injured party, fell within the insured’s policy coverage of “an accident.” ACSC denied coverage and refused to provide insured a defense asserting that the assault was not covered because it was not defined in the policy as an “accident,” and instead was an intentional act by the insured and excluded by the policy.

Procedural History

In trial court, the parties settled for a $150,000 judgment against the insured. The insured agreed to pay $25,000 and they agreed that the remainder of claims would be pursued against the insurer, ACSC. At that point, injured party amended his complaint, alleging that at the time of the incident, the insured acted without the intent to injure, but with intent to defend himself and his family from what was perceived as an imminent threat of harm. This amended complaint alleged that this was an “accident” and not an intentional act, and therefore should not be excluded by the policy.

The trial court asked the injured party’s counsel what facts were alleged that led insured to think he was acting in self-defense. Counsel responded: “We can’t allege facts leading up to what happened when my client was ultimately struck. We can’t allege those facts.” The trial court found that the settlement and stipulated judgment between insured and injured were “contrived” to expose ACSC to liability and it was “disingenuous at best” to characterize the battery as an accident.

The Court of Appeal reversed, holding that harmful acts done with an unreasonable belief in self-defense are “properly characterized as nonintentional tortious conduct.” The Court of Appeal concluded that the injured party’s amended complaint alleged acts by insured Reid that potentially were an “accident” covered by the policy. The Southern California Supreme Court granted ACSC’s petition for review.

Issue

The central issue is whether a battery by the insured, where he acted under the negligent belief of having to defend himself, was considered an “accident” that fell within policy coverage.

Holding

The California Supreme Court concluded that an insured’s unreasonable belief in the need for self-defense does not turn the resulting purposeful and intentional act of assault and battery into “an accident” within the policy’s coverage clause. Therefore, the insurance company had no duty to defend its insured in the lawsuit brought against him by the injured party. The judgment of the Court of Appeals was reversed.