Ninth Circuit Establishes that Unprotected Sex is an Intentional Act

No Potential for Coverage

For liability insurance to provide defense or indemnity to an insured the event causing the injury must be contingent or unknown to the insured. For that reason insurance may not provided defense or indemnity to an insured who causes an injury by intentional conduct.

In Travelers Commercial Insurance Company v. Jennifer A., USCA, 9th Circuit, 2017 WL 2684120, No. 15-15841,  (6/21/17) the Ninth Circuit was faced with an insurance coverage dispute between a claimant, Appellant, and an insurer, Travelers, which provided a homeowners’ liability insurance policy to the insured, third-party Jeffrey W. Jeffrey who allegedly had contemporaneous, unprotected sex with multiple partners, thereby placing Appellant in fear of contracting HIV and hepatitis.

Jeffrey’s policy provided a duty to defend or indemnify claims for bodily injury caused by an “occurrence,” which is defined as “an accident.” The issues are whether Jeffrey’s conduct triggers a duty to indemnify or defend Jeffrey, and whether an alleged ambiguity affirmative defense precluded judgment on the pleadings.

Jeffrey’s acts of unprotected sex with other women, the conduct for which liability was imposed, were deliberate acts and therefore were not accidents within the meaning of the policy. As such, the Ninth Circuit appropriately found that Travelers had no duty to indemnify Jeffrey under the homeowners’ insurance policy.

Additionally, since the duty to defend is broader than the duty to indemnify, the Ninth Circuit found that because the facts, as pleaded in Appellant’s complaint, create no potential for coverage, “there is no duty to defend.” [Uhrich v. State Farm Fire & Cas. Co., 135 Cal. Rptr. 2d 131, 137 (Ct. App. 2003) (quoting Quan v. Truck Ins. Exch., 79 Cal. Rptr. 2d 134, 138 (Ct. App. 1998)).]

Therefore, the Ninth Circuit also concluded that Travelers had no duty to defend Jeffrey against Appellant’s lawsuit because the allegations did not raise any possibility of coverage.

Finally, Appellant’s ambiguity defense is a defense that challenges the prima facie case put forward by Travelers in its complaint for declaratory judgment.   Because contractual ambiguity is a question of law for the court to decide, and because the term “accident” is not ambiguous under California law, the district court appropriately granted judgment on the pleadings.

ZALMA OPINION

The Ninth Circuit, in a concise opinion, concluded that unprotected sex is intentional and, therefore, not a contingent or unknown event. Since the conduct was intentional and the injuries claimed were intentional and, therefore, not insurable.

 

 

ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

This article and all of the blog posts on this site digests and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

Mr. Zalma is the first recipient of theLEGEND-TROPHY-2 first annual Claims Magazine/ACE Legend Award.

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The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.

 

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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