Thursday, July 21, 2011

California Court Holds Groin Punch Not an Occurrence

The California Appellate Court for the Second Appellate District recently issued a ballsy decision that can only be described a low blow to insureds.  In State Farm General Ins. Co. v. Frake, 2011 Cal. App. LEXIS 911 (Cal. App. July 13, 2011), the court was asked to consider whether the insured’s intentional battery of his friend’s nether regions constituted an “occurrence” for the purpose of a renter’s liability policy.
The fracas in Frake reads like an episode of Jackass.  The insured, Frake, was visited by two former high school classmates in Chicago for a weekend of “partying and drinking” to be highlighted by a Cubs game.  These friends, immune to all fears of future fertility, enjoyed the age-old tradition of sucker punching each other in the groin which, to be frank, is best described by the court:
Frake explained that, since high school, his friends had engaged in “a cycle of horseplay[,] specifically … hitting each other in the groin.” During this “consensual” ritual, one person would normally try to “slap or hit [another person] in … the groin area,” and the recipient would then “attempt to return [the slap or hit].” According to Frake, the practice was so common that his friends would “greet each other with a one arm hug,” while covering their “groin area” with the other arm for “protection in case [someone] decided to … instigate th[e] horseplay.”
That weekend, after enjoying a ballgame of a more traditional  sort at Wrigley Field, and after all involved had consumed excessive amounts of alcohol, King attempted to punch Frake’s “friends,” but his aim was wide and his hand redirected  by Frake.  Having protected his flank, Frake fisted his former friend in the front, lending new meaning to taking the King’s bishop.  King later sued Frake alleging that “Frake deliberately struck King in the groin,” although the complaint did not contain any allegations as to whether Frake intended injury.  King was eventually awarded $400,000 for injuries way too painful for these authors to describe.
State Farm provided Frake with a defense under a reservation of rights, but later commenced a declaratory judgment action on the issue of whether the underlying suit alleged an “occurrence,” defined by the policy as an accident. Frake argued that that while he intended to strike his buddy’s bullocks, he did not intend to cause harm, and as such, his conduct should not be considered anything but accidental.  The court’s response to this argument can best be described as testy.  The court rejected the concept that the consequences determines whether one’s conduct is an accident, explaining:
The language of the policy at issue here, which is the same language used in most standard liability policies, supports the conclusion that the term “accident” refers to the insured's conduct, rather than the unintended consequences of that conduct. The policy provides coverage for “bodily injury … caused by an occurrence.” The term “occurrence” is defined as “an accident.” Therefore, under the policy, “an ‘occurrence’ is a causal event, defined as an ‘accident.’ In this context, an ‘accident’ cannot mean unintended damage because the causal event also would be the result. Logically, a consequence cannot cause itself.”  (Citations omitted.)
Moreover, the court rejected the insured’s arguments that the decision by the California Supreme Court in Delgado v. Interinsurance Exchange of Automobile Club of Southern California, 47 Cal. 4th 302 (Cal. 2009) and by the Second Appellate Division in State Farm Fire & Casualty Co. v. Superior Court, 164 Cal. App. 4th 317 (Cal. App. 2008) dictated the result that unintended consequences of an intentional act constitute an “occurrence” for the purpose of a liability policy.  These cases, explained the court, are consistent with the notion that absent “an intervening act of fortuity,” it is the injury-producing act that is dispositive of whether an occurrence happened.  Thus, cocksure of its decision, each member of the court ruled that State Farm did not owe a duty to defend or to indemnify Frake under the policy. 

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