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Delgado v. Interinsurance Exchange of the Automobile Club of Southern California

August 3, 2009

JONATHAN DELGADO, PLAINTIFF AND APPELLANT,
v.
INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, DEFENDANT AND RESPONDENT.



Los Angeles County Super. Ct. No. VC045588. Ct.App. 2/3 B191272. Judge: Raul A. Sahagun.

The opinion of the court was delivered by: Kennard, J.

Review Granted XXX 152 Cal.App.4th 671

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.

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 "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 non-intentional tortious conduct," the Court of Appeal concluded that Delgado's first amended complaint alleged acts ...


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