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STATE FARM FIRE & CAS. CO. v. EZRIN

April 10, 1991

STATE FARM FIRE & CASUALTY COMPANY, an Illinois corporation, Plaintiff,
v.
THOMAS EZRIN, JENNIFER MASON, BRYAN FREEDMAN, and EDMUND FISHER, Defendants


Robert F. Peckham, United States District Judge.


The opinion of the court was delivered by: PECKHAM

ROBERT F. PECKHAM, UNITED STATES DISTRICT JUDGE

 In this suit, State Farm Fire & Casualty Company ("State Farm") seeks a declaration that it has no duty to indemnify the insured, Thomas Ezrin, for damages arising from an alleged sexual assault. In its motion for summary judgment, State Farm contends that Ezrin's conduct was intentional and thus excluded by the terms of the policy and by California Insurance Code ยง 533. For the reasons outlined below, State Farm's motion for summary judgment is granted.

 This litigation arises out of events that occurred on the night and early morning of October 4-5, 1985. That night, Jennifer Mason, a seventeen-year old high school student, had attended a party given by the Tau Kappa Epsilon fraternity at the University of California. She was given alcoholic punch and became drunk. After leaving the party, Mason became lost on the streets of Berkeley. She then encountered two university students, Thomas Ezrin and Bryan Freedman. Ezrin and Freedman offered to help Mason and asked her to accompany them to their fraternity, Zeta Beta Tau. Once inside, it is alleged by Mason that she was sexually assaulted and battered by Ezrin, Freedman, and Edmund Fisher, another member of the fraternity.

 On April 15, 1986, Mason and her parents filed a complaint against Ezrin and others in the Superior Court for Alameda County based on the above-described incident. After a second amendment was filed on December 30, 1987, the complaint alleged that Ezrin and others assaulted and battered and sexually assaulted and battered Mason against her will. The complaint also alleged that defendants' conduct was done with intent to cause or with reckless disregard of the probability of causing emotional distress to her and her parents. Finally, the complaint alleged that defendants had breached their duty of care to Mason to provide a safe premises.

 At the time of the incident, Ezrin was an insured under the terms of his parents' State Farm homeowners' insurance policy. Pursuant to the provisions of the policy, State Farm agreed to pay for Ezrin's defense in the underlying California Superior Court action, but reserved the right to deny coverage for Ezrin's acts on the ground that coverage is precluded by the terms of the policy and by state law.

 State Farm brings this action for a declaration that it is not liable to indemnify Ezrin for any losses sustained in connection with the October 5, 1985 incident. To date, Ezrin has not made any claim against State Farm for coverage.

 II. DISCUSSION *fn1"

 We are presented with issues concerning the interpretation of an exclusionary clause of an insurance contract and of California Insurance Code section 533. The insurance policy, in relevant part, provides:

 
COVERAGE L - PERSONAL LIABILITY
 
If a claim is made or a suit brought against an insured for damages because of bodily injury or property damage to which this coverage applies, we will:
 
1. pay up to our limit of liability for the damages for which the insured ...

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