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September 11, 1990

ROBERT SANDERS BAER, et al., Defendants

The opinion of the court was delivered by: SMITH


 This is an action for declaratory relief as to defendant's right to insurance coverage for a wrongful death action currently pending in state court. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. The matter came before the Court for hearing on the plaintiff's motion for summary judgment on August 15, 1990. For the reasons stated at the hearing and for the reasons set forth below, the Court grants summary judgment in favor of the plaintiff.


 Defendant Robert Sanders Baer is a 42-year old real estate developer residing in Palo Alto. He and Dareen Dahlstrom were close personal friends for over twenty years. Prior to 1988, Dahlstrom was living in Los Angeles with her husband. In July of 1988, she came to Palo Alto to visit Baer. Her father had recently passed away, and Dahlstrom was in the process of separating from her husband. She planned to spend a weekend with Baer and then live in his house for two months while he traveled in Africa.

 Baer had, on several occasions, used a recreational drug known as "Ecstasy." *fn1" He believed that its use had certain psychological and emotional benefits. Prior to Dahlstrom's July, 1988 visit, Baer told her about his experiences using the drug, and the two discussed the possibility of Dahlstrom trying it during her visit. They discussed the effects of the drug and the ways in which it might help Dahlstrom cope with the changes in her life. On July 22, 1989, she informed Baer that she wanted to use the drug.

 The next day, at his home, Baer and Dahlstrom went through various rituals in preparation for her use of the drug, concluding with the following brief prayer: "May this bring harm to no one and blessing to all." Baer then took approximately 200 to 300 milligrams of the drug from his personal supply and dissolved it in a glass of water. He believed this amount to be appropriate for Dahlstrom because it was slightly less than half of the dose he usually gave himself. Dahlstrom drank the mixture immediately thereafter.

 On February 13, 1990, Dahlstrom's survivors filed a wrongful death action against Baer in the Superior Court for the County of Santa Clara. The issue before this Court is whether Baer is entitled to receive coverage for that lawsuit under a homeowners insurance policy issued to him by State Farm Fire and Casualty Company.


 State Farm has moved for summary judgment on three grounds: (1) the administration of the drug to Dahlstrom was not an accident; therefore, the event was not an "occurrence" as defined by the policy; (2) public policy considerations preclude coverage for persons who provide illegal drugs to others in their home; and (3) coverage is precluded by an exclusion in the policy for injury that is either expected or intended by the insured or that is caused by the insured's willful and malicious acts. In opposition, the defendants argue that, (1) although Baer intended to give Dahlstrom the drug, he did not intend any injury; (2) because her death was an accident, the event constituted an "occurrence" under the policy; and (3) summary judgment is inappropriate because there are material issues of fact as to Baer's negligence in choosing the dosage he gave to Dahlstrom and in failing to summon medical assistance promptly.

 After full consideration of the parties' submissions and oral argument, the Court holds that insurance coverage for the act of providing an illegal drug to another in the insured's home is precluded as against public policy and by the provisions of California Civil Code § 1668. The Court finds it unnecessary, therefore, to interpret the terms of the policy or to resolve factual issues as to Baer's "negligence." This holding is based upon the findings set forth below.

 1. Ecstasy is a Controlled Substance.

 There is no dispute that the drug "Ecstasy" was a Schedule I controlled substance under federal law on July 23, 1988. *fn2" The Controlled Substance Act, 21 U.S.C. § 841(a), makes it illegal to manufacture, distribute, dispense, or possess with intent to manufacture, distribute or dispense, any controlled substance. Schedule I contains the most dangerous of illegal drugs. Prior to placing a substance on Schedule I, the government must make the following findings: (1) the drug has a high potential for abuse; (2) the drug has no currently accepted medical use in treatment in the United States; and (3) there is a lack of accepted safety for use of the drug under medical supervision. 21 U.S.C. § 812(b). While Baer may have believed that "Ecstasy" was ...

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