The insurer had no duty to defend when the insured struck a friend while engaged in horseplay. State Farm General Ins. Co. v. Frake, 2011 Cal. App. LEXIS 911 (Cal. Ct. App., certified for publication July 13, 2011).

   The insured, Frake, struck his friend, King, in the groin. King filed suit, alleging negligence and assault and battery. Frake tendered the suit to State Farm under a renter's policy. During the investigation, Frake stated he struck King as part of a consensual game and that he did not intend to injure King. State Farm initially rejected Frake's tender. State Farm contended there was no potential for coverage because King had not alleged accidental conduct on Frake's part. State Farm later agreed to defend under a reservation of rights.

   In the underlying case, King secured an award of $450,000 against Frake. State Farm filed for declaratory relief. The trial court ruled State Farm had a duty to defend. On appeal, the court noted the complaint alleged that Frake deliberately struck King in the groin. Yet there were no allegations regarding whether Frake intended to injure King. In his recorded statement, however, Frake admitted that he intentionally struck King as part of a game.

   On this basis, the court of appeal determined there was no duty to defend. The term "accident" in a liability policy did not apply to an act's consequences, but instead applied to the act itself. This was not to say, however, that coverage was always precluded merely because the insured acted intentionally and the victim was injured. Rather, an accident existed when any aspect in the causal series of events leading to the injury was unintended by the insured and a matter of fortuity. For example, when a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. The act directly responsible for the injury – hitting the other car – was not intended by the driver and was fortuitous.  Here, however, the mere fact that Frake did not intend to injure King did not transform his intentional conduct into an accident. 

   Case law suggests the Hawaii Supreme Court would make a similar determination.  In Hawaiian Ins. & Guar. Co., Ltd v. Blanco, 72 Haw. 9 (1990), the insured sought coverage after firing a gun in the direction of his neighbor, injurying the neighbor.  The neighbor's suit alleged intentional misconduct and negligence.  When the allegations unambiguously excluded the possibility of coverage, conclusory assertions in the underlying complaint regarding the legal significance of the facts would not trigger a duty to defend.

   Thanks again to Damon Key blogging colleague, Robert Thomas (www.inversecondemnation.com), for providing this case.