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State Farm General Insurance Company v. Patrick Frake et al

June 22, 2011


APPEAL from a judgment of the Superior Court of Ventura County. Barbara A. Lane, Judge. (Ventura County Super. Ct No. 56-2007-00307495-CU-IC-SIM)

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

Certified for publication 7/13/11 (order attached)



After consuming several beers, Respondent Patrick Frake struck his friend, Respondent John King, in the groin, causing significant injuries. King filed a complaint against Frake for negligence, assault and battery and intentional infliction of emotional distress. Frake tendered the case to Appellant State Farm General Insurance Company under a renter's policy that provided coverage for bodily injury "caused by an occurrence," which the policy defined as "an accident." Frake told State Farm he struck King as part of a consensual game and that he did not intend to injure King. Although State Farm did not believe Frake's conduct qualified as "an accident," it agreed to defend the action with a full reservation of its rights. The King case proceeded to trial and the jury awarded King over $400,000.

State Farm then filed a declaratory relief action alleging that it had no duty to defend or indemnify Frake because his conduct did not qualify as an accident within the meaning of his insurance policy. Frake and King each filed cross-complaints alleging breach of contract and the covenant of good faith and fair dealing.

Several months later, the parties filed cross-motions for summary adjudication regarding State Farm's duty to defend. The trial court concluded that the term "accident" applied to deliberate conduct that resulted in unintentional injury and, as a result, there was a triable issue of fact regarding State Farm's duty to defend. The court further ruled that because there was this potential for coverage, Frake and King had established that State Farm had a duty to defend. The parties thereafter entered into a stipulated judgment against State Farm in the amount of $670,000.

On appeal, State Farm argues that the trial court erred in concluding that a deliberate act may qualify as an "accident" if the insured did not intend to cause the resulting injury. We agree and reverse the trial court's judgment.


A. The Injury-Causing Event

In September of 2004, Respondent John King invited Respondent Patrick Frake and two other high school friends to visit him in Chicago. The purpose of the trip was to "enjoy a baseball game" and "party and drink" at various "bars and . . . drinking locations . . . around the City." Throughout the weekend, the friends engaged in a form of consensual "horseplay" that involved "hitting each other in the groin" and other areas of the body.

On Friday, September 10, King, Frake and their friends attended a baseball game, where Frake became "very intoxicated." After leaving the game, King tried to strike Frake in the groin, but Frake blocked the attempt. Shortly thereafter, Frake retaliated by throwing his arm out to the side, where King was standing, and struck King in the groin.

The group traveled back to King's apartment and later went to dinner. On Saturday, they attended a college football game and walked around the Northwestern Campus. Throughout the weekend, King never mentioned that he was in any pain or discomfort. Frake left Chicago on Sunday, September 12.

Shortly after he left Chicago, a friend told Frake that King had sustained significant injuries as the result of Frake's strike to the groin. Frake was "shocked" because he did not believe there was anything "out of the ordinary" about his conduct. King later contacted Frake and requested that he pay his medical bills, which amounted to more than $70,000.

B. King's Lawsuit and State Farm's Initial Investigation

On September 7, 2006, King filed a complaint against Frake alleging negligence, assault and battery and intentional infliction of emotional distress. The complaint described the injury-causing event in a single paragraph:

On or about September 10, 2004, Defendant FRAKE was visiting Plaintiff in Chicago with other high school friends when they were returning home from a Chicago Cubs baseball game at Wrigley Field. At that time, Defendant FRAKE was engaged in horseplay, drunken and disorderly conduct, while grabbing and striking Plaintiff's person without authorization. Plaintiff repeatedly requested that Defendant FRAKE cease his obnoxious behavior. While walking eastbound on East Chicago Avenue, at or near the south entrance to the Park Hyatt Hotel, Chicago, Defendant FRAKE struck Plaintiff in the groin with his closed first, causing Plaintiff to double over in pain. Defendant FRAKE laughed triumphantly in having achieved a direct hit to Plaintiff's testicles, while he screamed various swear words . . .

The complaint alleged that as a result of Frake's conduct, King had sustained numerous injuries including "hematocele on the right scrotum . . . epididymal head cyst . . . chronic regional pain syndrome/reflex sympathetic dystrophe [and] nerve injury."

Frake tendered the defense of King's lawsuit to State Farm Insurance General Insurance Company pursuant to a "renters policy" that provided coverage for damages because of bodily injury caused by an occurrence. The policy defined the term "occurrence" as an "accident . . . which results in bodily injury . . . during the policy period."

State Farm reviewed King's complaint and initiated an investigation of the claim. State Farm first contacted Frake's mother, who stated that Frake, King and their friends had a "tradition" of "grabbing each other's testicles." Frake's mother and other parents had repeatedly warned their children against engaging in such conduct because they feared "someone might get hurt." Despite these warnings, the "behavior continued."

On October 24, 2006, State Farm interviewed Frake about the incident and recorded his statement. 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."

Frake stated that, during his visit to Chicago, King and his friends had, "per usual," been engaging in "horseplay . . . [that] continued throughout the whole weekend." After attending a baseball game, King and Frake were on an escalator when King attempted to hit Frake in the groin. Frake later retaliated by swinging his arm out to the side with the intent to strike King in the area of his stomach or groin. Frake stated that the strike was intended to "surprise" King, explaining "I felt like he had attempted to . . . horseplay with me on the escalator and then I was gonna . . . horseplay back at him."

When the State Farm investigator asked Frake whether he had intended to hit King directly in the groin, Frake stated, "no . . . not [on] this particular incident." Frake further explained that he was trying to strike King in the general area of the stomach or groin, but "just happened" to hit him directly in the groin. Frake also stated that he was "shocked" that King was hurt because he never intended to "inflict harm or pain purposefully."

Frake also denied that he had hit King with a closed fist, explaining "it was never, we never . . . hit each other it was never a closed first. If it was a closed fist [the hit] was . . . on the arm or something like that. That was but never ever we knew I mean you don't punch someone in the . . . groin area. Obviously it's . . . painful regardless if you get hit in . . . the groin area so it was always with a backhand . . . never a closed fist, always with an open hand."

C. State Farm's Agreement to Defend Frake with a Reservation of Rights

On November 9, 2006, State Farm informed Frake that, based on its investigation, there was no "potential for coverage for this lawsuit" because "the plaintiff has alleged no accidental conduct on your part, as is required in order to constitute an occurrence as defined [in the policy]."

Almost a year later, on October 2, 2007, Frake's counsel requested that State Farm reconsider its position in light of a recent appellate decision which held that an insured's allegation that he had acted in self-defense was sufficient to establish that the conduct was accidental, thereby giving rise to the insurer's duty to defend. Frake's counsel further requested that State Farm respond in a timely manner because trial was set to begin on November 13, 2006.

A week before trial, State Farm informed Frake's counsel that it did not believe it had a duty to defend or indemnify Frake, but agreed to "provide . . . a defense, as of your October 2, 2007 request for reconsideration, pursuant to a full reservation of rights." State Farm explained that "the defense provided is without a waiver of our position that there is no coverage afforded for these claims," and specifically reserved its right to "file a declaratory relief action to obtain the court's determination with respect to whether there is a duty to defend or indemnify your client from these claims," and "seek reimbursement of attorney's fees and costs expended on your client's behalf in the defense of this matter."

State Farm also reiterated why it did not believe the incident fell within the policy coverage, stating, "it is alleged that . . . Frake[] struck John King in the groin. Such allegations involve purposeful, deliberate conduct which does not qualify as an accident under the . . . Policy."

D. The King Trial

King's case against Frake proceeded to trial solely on a negligence theory. Frake's trial testimony was substantially consistent with the statement he had given State Farm during its initial investigation of the claim. Specifically, Frake stated that, since high school, he and his friends had engaged in a "physical touching game," which he described as "hitting each other in the arm, the back, the stomach, grabbing . . .the groin . . . as well as the butt." Frake ...

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