Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. Nos. BC326737, BC327498 BC327863. Rita J. Miller, Judge. Affirmed.
Briskin, Latzanich & Pene, Katherine B. Pene and Jeffrey F. Briskin for Plaintiff and Appellant Susan B.
John D. Weiss for Plaintiff and Appellant Angela S.
Law Office of Drew R. Antablin and Drew R. Antablin for Cross-complainant and Appellant.
Hinshaw & Culbertson, Wendy Wen Yun Chang and Bethany Culp for Cross-defendant and Respondent.
ASHMANN-GERST, J
Angela S. (Angela) and Susan B. (Susan) appeal the dismissals of their consolidated direct payment actions against Chicago Insurance Company (Chicago) after it obtained a ruling sustaining its demurrers without leave to amend. The question presented is whether the allegedly sexual or otherwise hostile conduct that James E. McConnell (McConnell) directed at Angela and Susan while he was a teacher and they were in sixth grade qualifies as an accident that is covered by teachers liability insurance issued by Chicago to cover a group of teachers that included McConnell. We conclude that it is not. When assessing McConnell’s conduct in connection with the insurance at issue, the inquiry is whether his conduct was volitional, not whether he intended to cause injury, as Angela and Susan suggest. The underlying judgment against McConnell incorporated three alternative factual findings from the special jury verdict form for the first phase of trial. Those factual findings were phrased in a disjunctive sentence, the least egregious of which was that McConnell engaged in pervasive or severe conduct of a hostile nature based on gender, and that this conduct was unwelcome by Angela and Susan. In the second phase of trial, the jury found that Angela and Susan were “subjected to unwanted harassing conduct because they were females.” The jury also found that they will suffer personal injury and economic loss due to “McConnell’s sexual harassment.” Because Angela’s and Susan’s pleadings, which incorporated the underlying judgment against McConnell, demonstrate nothing but conduct that must be construed as volitional, they are factually deficient. Finally, we perceive no way for Angela and Susan to amend.
Chicago filed a declaratory relief action against McConnell regarding coverage. McConnell cross-complained for breach of contract, breach of the implied covenant of good faith, and declaratory relief. Chicago’s declaratory relief action was consolidated with Angela’s and Susan’s actions. Chicago successfully demurred to McConnell’s cross-complaint (cross-complaint). McConnell appeals and raises similar arguments to those raised by Angela and Susan. Consistently, we hold that McConnell’s cross-complaint is also defective.
The appeals by Angela, Susan and McConnell were consolidated for purposes of briefing, oral argument and decision.
We affirm.
FACTS
The policy
Chicago issued a teachers liability insurance policy (policy) to the American Federation of Teachers (Federation). At the time, McConnell was a member of the Federation.
The policy provided insurance “only to bodily injury . . . which occurs during the policy period” and which is caused by “an occurrence” that arises out of the supervision or instruction of students. An “occurrence” was defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” On the first and second pages of the teachers liability coverage form, the policy excluded coverage for bodily injury expected or intended from the standpoint of the insured.
The judgment against McConnell
Angela and Susan independently sued McConnell for, among other things, negligent infliction of emotional distress and violation of Civil Code section 52.1 of the Unruh Civil Rights Act. In a joint trial, they obtained a favorable jury verdict. In the portion of the special jury verdict form pertaining to the first phase of trial, the jury found the following. Los Angeles Unified School District and Robert Coburn negligently hired or supervised McConnell. McConnell made sexual advances, sexual solicitations, sexual requests, demands for sexual compliance, and/or engaged in verbal, visual, and/or physical conduct of a sexual nature and/or a hostile nature based on gender, and this pervasive or severe conduct was unwelcome by Angela and Susan. In the portion of the special jury verdict pertaining to second phase of trial, the jury found that Angela and Susann were subjected to unwanted harassing conduct because they were females, and to negligent infliction of emotional distress. Angela and Susan either suffered, or will suffer, economic harm, personal injury (including emotional distress) and a violation of their statutory and constitutional rights “as a result of . . . McConnell’s sexual harassment.”
Angela’s economic damages were $30,000 and Susan’s were $35,000. Each was awarded $75,000 in noneconomic damages. Thirty percent of the responsibility belonged to McConnell and 70 percent to codefendants Los Angeles Unified School District and Robert Coburn.
Pursuant to the judgment, Angela was entitled to recover $22,500 in noneconomic damages from McConnell, as well as $250,000 in attorney fees. Susan was entitled to recover $22,500 in noneconomic damages and $450,000 in attorney fees from McConnell. Additionally, McConnell, the Los Angeles Unified School District and Robert Coburn were jointly and severally liable to Angela for $30,000 in economic damages and $11,520.22 in costs, and to Susan for $35,000 in economic damages and $22,346.47 in costs. The special jury verdict form and jury findings were restated in the text of the judgment.
Angela’s and Susan’s action against Chicago
In a complaint for direct payment based on breach of contract and breach of the implied covenant of good faith against Chicago, Angela alleged that she was a student, McConnell was a teacher, and that he recruited her into band and orchestra through inappropriate means. To recruit her, he touched and spoke to her in a way that violated her civil rights to have a safe and secure sixth grade learning environment. He called her honey, sweetie, sugar pie and my baby. He asked her to marry him, stroked her hair, hugged her, touched her ear and engaged in other activity that could be construed as “parasexual acts.” According to Angela, Chicago refused to satisfy the judgment against McConnell even though he was entitled to indemnity. Pursuant to Insurance Code section 11580, subdivision (b)(2), she sued Chicago in a direct action to recover the insurance proceeds.
The operative pleading in Susan’s independent action, the first amended complaint, was substantially the same.
McConnell’s cross-complaint
By way of cross-complaint, McConnell sued Chicago for breach of contract, alleging that Chicago was obligated to indemnify him against the judgment but refused. According to McConnell, Angela’s and Susan’s actions alleged that he caused them personal injury, bodily injury and other damages based on acts he committed while performing his duties as a teacher. They alleged that he “committed acts constituting negligence and/or acts of sexual harassment” and those acts and statements included, among other conduct: “referring to each [of them] as ‘honey,’ ‘sweetie’ and/or ‘sugar,’ and/or placing one arm around the shoulder of each [of them] constituting a type of hug, and/or patting [them] on the back in an encouraging manner, and/or other conduct which [McConnell] engaged in for the purpose of attempting to encourage [them] in their school and musical activities.”
The demurrers
Chicago demurred to Angela’s complaint, Susan’s first amended complaint, and McConnell’s cross-complaint.
On August 23, 2005, the trial court sustained the demurrers to Angela’s complaint and Susan’s first amended complaint without leave to amend. The ensuing minute order stated that “there is no coverage. The coverage provided is for ‘bodily injury . . . caused by an occurrence’ which is defined as ‘an accident . . . .’ The injury here was not the result of ‘an occurrence’ as there was no ‘accident.’ All acts for which the insured was found liable are intentional acts. Consequently, they do not fall within the definition of an ‘accident.’”
The demurrer to McConnell’s cross-complaint was sustained without leave to amend on September 13, 2005.
McConnell informs us that the trial court took judicial notice of the judgment in the underlying action.
Each action was dismissed.
These timely appeals followed.
STANDARD OF REVIEW
When asked to determine whether a trial court erred by sustaining a demurrer without leave to amend, we assess the pleading from a blank slate. “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If an appellant seeks leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.)
DISCUSSION
Angela and Susan argue that they stated viable causes of action against Chicago because there were no allegations that McConnell intended to injure or harm them, which means that their injuries were accidents. But this argument is inconsistent with our interpretation of the policy. As a consequence, they failed to meet their burden to show that their injuries fell within the scope of coverage. (Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537 (Royal Globe).) Further, there is nothing they can add to their allegations to save their causes of action; their contention that they should have been given leave to amend lacks merit.
McConnell’s appeal is basically parallel. It fails to achieve anything more than Angela’s and Susan’s appeals.
1. The unsettled law of accident based policies.
There is no clear consensus regarding what an accident is for purposes of an insurance contract.
The interpretive problem the word “accident” poses is illustrated by this passage: “The word ‘accident’ probably has been discussed in adjudications as often as any other word in the English language. It is not a technical term, with a clearly defined meaning, and it has been used in more than one sense. In its most commonly accepted meaning it signifies an event which takes place without one’s foresight or expectation. It was defined by Lord Macnaghten . . . as an ‘unlooked for mishap or an untoward event which is not expected or designed.’ Its meaning is well stated in Corpus Juris. . . , where it is said: ‘Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart [from] its cause, and if the cause is not known the loss or hurt itself would certainly be called an accident. The word is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.’ This definition, originally given by Lord Robertson . . . , is now generally accepted by the authorities. [Citation.]” (Hyer v. Inter-Insurance Exchange, Etc. (1926) 77 Cal.App. 343, 348 (Hyer).)
A recent blueprint for interpreting accident based policies is set forth in Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583 (Quan). The insured in Quan fondled a woman and then engaged in sexual intercourse with her. She sued for assault and battery, intentional infliction of emotional distress, negligence and negligent infliction of emotional distress based on allegations that the insured “‘with force and against [her consent] assaulted [her] and raped, ravaged and carnally knew her.’” (Id. at p. 588, fn. 5.) In the insured’s subsequent coverage action against Truck Insurance Exchange to obtain a defense, he essentially argued that an accident and a negligent act were tantamount to the same thing. He posited that there was a potential for coverage because the underlying complaint set forth allegations of negligence as well as intentional conduct and there was a possibility that “he might be found merely ‘negligent,’ or may be found to have mistakenly believed the [woman]. . . ‘consented.’” (Id. at p. 596.) Additionally, he contended that there would be coverage if he was found “to have been ‘negligent’ in serving alcohol to, touching, kissing, embracing, fondling or having sex with the [woman].” (Ibid.)
The Quan court noted that prior cases held that “negligent” and “accident” cannot be construed to mean the same thing, and they dismissed the arguments by the insureds that “‘an accident occurs even if the acts causing the alleged damage were intentional so long as the resulting damage was not intended.’” (Quan, supra, 67 Cal.App.4th at p. 597.) Those cases rejected the suggestion that in “‘construing the term “accident,” chance or foreseeability should be applied to the resulting injury rather than to the acts causing the injury.’” (Id. at p. 598.)
In conclusion, Quan declined to find coverage, stating: “[W]hether the insured intended the harm that resulted from his conduct is not determinative. The question is whether an accident gave rise to [the woman’s] injuries. No accident is alleged, nor do the extrinsic facts suggest one. The acts asserted to give rise to the [woman’s] injuries were deliberate, regardless of whether any harm was intended or expected to come of them. No ‘additional, unexpected, independent and unforeseen happening’ produced the alleged injuries.” (Quan, supra, 67 Cal.App.4th at p. 599.) “[E]ven if the jury was to find that the insured was mistaken in his belief as to whether the [woman] ‘consented’ to the touching, embracing, kissing or sexual intercourse, there was still no additional happening constituting an ‘accident’ which caused the injuries. The other party’s consent, or the lack thereof, cannot change the nature of the insured’s deliberate acts. Assuming, as the [insured] insist[s], that liability could be imposed without a finding of any intent to ‘harm,’ the lack of such intent would not convert volitional physical acts into ‘accidents’ within the meaning of that term in the policy under California law. In other words, injurious physical contact may have been a ‘mistake,’ but it was no ‘accident.’” (Ibid.)
Other cases are consistent. As explained in Royal Globe, an intentional act is not an accident and “[t]he same roadblock at the definition of ‘accident’ halts any argument claiming [that an insured] intended his act but not the resulting harm.” (Royal Globe, supra, 181 Cal.App.3d at p. 537.) The court in Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 804 pointed out that “[u]nder California law, the term [accident] refers to the nature of the insured’s conduct, not his state of mind.” Courts have held that a variety of events are not accidental. For example, courts have held that damages caused by negligent misrepresentations are not accidents. (American Internat. Bank v. Fidelity & Deposit Co. (1996) 49 Cal.App.4th 1558, 1573 [“the results were not unintended or unexpected as they would be in the case of a true accident”].) When an employer terminates an employee and is sued for wrongful termination, there is no coverage under an accident based policy because the termination was not an “unintentional, unexpected, chance occurrence.” (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 161 Cal.App.3d 1199, 1202 (St. Paul Fire).) Even if an accident based policy provides that damage must not be intended or expected by the insured, the event still must be accidental. (Commercial Union Ins. Co. v. Superior Court (1987) 196 Cal.App.3d 1205, 1209 (Commercial Union) [“The [trial] court has read the sentence ‘[t]his injury or damage must be neither expected nor intended by you’ to imply . . . that coverage may exist even though the act leading to the injury or damage is expected or intended. No such inference may be drawn because it would contradict the plain and ordinary meaning of the word ‘accident’”].)
In Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50 (Merced), the court explained that “[a]n accident . . . is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.”
But not all cases follow the path evinced in Quan.
For example, in the automobile insurance context, one court stated: “When an injury is an unexpected or unintended consequence of the insured’s conduct, it may be characterized as an accident for which coverage exists. When the injury suffered is expected or intended, coverage is denied. When one expects or intends an injury to occur, there is no ‘accident.’ [Citation.]” (Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661, 669 (Flores).) Similar statements have been made in connection with insurance claims based on injury to property—such as cracking and uplifting in a driveway—due to construction defects. (Chu v. Canadian Indemnity Co. (1990) 224 Cal.App.3d 86, 89–90, 96 (Chu) [“When the injury is an unexpected or unintended consequence of the insured’s conduct, it may be characterized as an accident for which coverage exists”].) Finally, nearly a half century ago, the court in Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co. (1959) 51 Cal.2d 558, 563–564 noted that there is no all inclusive definition of the word accident. One surveyed definition was that an accident is an unexpected, unforeseen, or undesigned happening or consequence. (Ibid.) By referring to a happening and a consequence, the definition encompassed unforeseen causes and unforeseen effects.
St. Paul Fire, supra, 161 Cal.App.3d at page 1202, cited by McConnell, involved a policy that covered accidental events and stated that “‘the accidental event . . . must be something [the insured] didn’t expect or intend to happen.’” According to McConnell, St. Paul Fire establishes that an accident occurs for purposes of a policy if the harm was not intended or expected. But St. Paul Fire does not provide us with assistance. The term “accidental” in that case was defined, unlike “accident” here, to mean something the insured did not intend or expect to happen.
Whether we view this case in concert with Quan or Flores ultimately depends upon our interpretation of the policy.
2. Interpretation of the policy.
a. Applicable law.
The interpretation of an insurance policy is a question of law which appellate courts review de novo under well-settled rules of contract interpretation. (E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 470 (E.M.M.I.).) Our most basic goal when interpreting an insurance policy is to effectuate the mutual intention of the parties. If possible, the parties’ intent must be gleaned solely from the written provisions of the contract. (Civ. Code, § 1639.) The clear and explicit meaning of these provisions, interpreted in their “ordinary and popular sense” controls unless they are used by the parties in a technical sense or a special meaning is given to them by usage. (E.M.M.I., supra, 32 Cal.4th at p. 470.) Moreover, “[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, § 1641.)
“A policy provision is ambiguous when it is susceptible to two or more reasonable constructions. [Citation.] Language in an insurance policy is ‘interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract.’ [Citation.] ‘The proper question is whether the [provision or] word is ambiguous in the context of this policy and the circumstances of this case. [Citation.] “The provision will shift between clarity and ambiguity with changes in the event at hand.” [Citation.]’ [Citation.] Ambiguity ‘“‘is resolved by interpreting the ambiguous provisions in the sense the [insurer] believed the [insured] understood them at the time of formation. [Citation.] If application of this rule does not eliminate the ambiguity, ambiguous language is construed against the party who caused the uncertainty to exist. [Citation.]’ ‘This rule, as applied to a promise of coverage in an insurance policy, protects not the subjective beliefs of the insurer but, rather, “the objectively reasonable expectations of the insured.”’” [Citation.] “Any ambiguous terms are resolved in the insureds’ favor, consistent with the insureds’ reasonable expectations.”’ [Citation.]” (E.M.M.I., supra, 32 Cal.4th at pp. 470–471.)
b. The policy must be read as consistent with Quan.
“Accident” is not defined by the policy, so we must employ the ordinary and popular sense of the word, if possible. The difficulty with this task, we have discovered, is that sometimes the word “accident” refers to the cause, sometimes the injury, and sometimes both, as explained in Hyer almost 80 years ago. The dictionary definition of “accident” does not help: the word is alternatively defined as “an unexpected happening causing loss or injury” (which focuses on the cause), “an unfortunate event resulting [especially] from carelessness or ignorance” (which focuses on the injury), and “an unforeseen or unplanned event or circumstance” (which seems to conflate both the cause and injury). (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 7.) Given these materially different definitions, we would be hard pressed to glean the meaning of the word “accident” in a vacuum. But we are not presented with a vacuum. We have the rest of the policy to aid our interpretation. And, we must construe “accident” in the context of this policy and the circumstances of this case.
As in Commercial Union, we are dealing with an exclusion for bodily injury expected or intended from the standpoint of the insured. If we interpret “accident” in the manner argued by Angela, Susan and McConnell, it would render the exclusion redundant because both it and “accident” would refer to whether the harm was expected or intended. But following Civil Code section 1641, we must give the word “accident” and the exclusion different meanings. Following Quan rather than Flores allows us to do so. We conclude that the word “accident” focuses on the cause of an injury, whereas the exclusion focuses solely on the insured’s state of mind relative to the injury (i.e., the effect).
To defeat our interpretation, Susan and McConnell offer what they contend are practical perspectives on the policy.
Susan cites contract interpretation law and then argues that the policy provides that Chicago “will pay sums which the insured is obligated to pay as damages because of bodily injury caused by an occurrence which arises out of the supervision or instruction of students. . . . [¶] In this case, the allegations in the [first amended complaint] . . . indicate that the acts which gave rise to the [judgment against McConnell] arose out of the supervision or instruction of students.” In Susan’s view, “[t]he plain meaning of the coverage language . . . is that the actions giving rise to the [judgment against McConnell] would be covered since they occurred during his supervision or instruction of students. An insured such as McConnell would understand that the policy would provide coverage for his teaching and supervising actions, including negligent acts which might cause unexpected or unintended injury, and such an understanding would be objectively reasonable.”
McConnell attacks the trial court’s interpretation of the policy on the grounds that it renders the policy illusory. In his view, an accident can never occur during the supervision and instruction of students.
These arguments do not change our interpretation of “accident.” In the context of this policy and this case, “accident” is not an ambiguous term and we need not define it by determining McConnell’s objectively reasonable expectations. Also, we cannot write the word “accident” out of the policy, which, as a practical matter, is what McConnell invites us to do.
3. The pleadings are deficient because McConnell’s alleged conduct was not an accident for purposes of the policy.
In our view, Quan is controlling.
Each of McConnell’s acts was deliberate. The jury found that he sexually harassed Angela and Susan, and that (at least) he engaged in conduct of a sexual or hostile nature that was unwelcome by Angela and Susan. Whether McConnell intended to cause harm is irrelevant. He acted volitionally, and his intent could not change the nature of his conduct.
That McConnell’s conduct was volitional is dictated by the judgment. “The interpretation of a judgment, insofar as its meaning is concerned, is governed by the same rules which apply in ascertaining the meaning of any other writing. [Citations.] It is the general rule that the language of a writing governs its interpretation, if the language is clear and explicit, and does not involve an absurdity. [Citation.]” (Colvig v. RKO (1965) 232 Cal.App.2d 56, 65.) In the first phase of trial the jury found that McConnell at least engaged in sexual or hostile conduct. Sexual conduct is designed to achieve sexual gratification. The word hostile is defined as “marked by malevolence,” “openly opposed or resisting,” and “not hospitable.” The plain meaning of hostile conduct, then, is conduct marked by ill will or opposition. In a vacuum, the jury’s findings in the first phase of trial denote conduct which is marked by dissolute motivation and cannot, in any way, be called negligent. To the degree there is any uncertainty about this, the finding of sexual or hostile conduct must be viewed in conjunction with the second phase finding that McConnell subjected Angela and Susan to unwanted harassing conduct and that they were damaged by his sexual harassment. It has been aptly held that “[t]here simply is no such thing as . . . ‘negligent harassment.’” (Northland Ins. Co. v. Briones (2000) 81 Cal.App.4th 796, 809 (Briones).) In our view, the assessment in Briones is spot on, and, as such, our analysis is at its necessary depth.
Merriam-Webster’s Collegiate Dictionary (10th ed. 1999) page 561.
Angela, Susan and McConnell offer a series of arguments for why we should find coverage. We parse those arguments below.
a. The argument that Quan is distinguishable.
From Angela and Susan’s perspective, Quan is distinguishable because it involved allegations that the insured raped and ravished the underlying plaintiff. But this distinction is of no moment. Under Quan, we inquire only whether the act at issue was volitional, no matter where on the scale of egregious conduct it might fall. As we demonstrated in part 1 of this opinion, ante, it is not just sexual misconduct that falls outside the definition of accident. Intentional actions, such as the termination of employees and statements that misrepresent facts, are not accidents. Thus, Quan applied a rule that is much broader than the specific facts of that case. Pressing on, Angela and Susan seem to suggest that Insurance Code section 533, which bars insurance for willful acts, trumps all other rules. They argue that Insurance Code section 533 bars coverage for child molestation, as held by (J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1021 (J.C. Penney), but not for lesser conduct. The problem for Angela and Susan is that Insurance Code section 533 does not nullify the condition for insurance, i.e., there must be an accident.
b. The argument that injury was unforeseen.
Rebounding off of Merced, the question arises whether there was an unforeseen event that caused damages.
Taking Merced into account, Angela argues this: “If, in fact, [McConnell] had intended his acts of calling [Angela] by endearing terms or touching her hair as a deliberate act, it may very well have been that [Angela’s] surprise at this type of conduct was not expected or foreseen, particularly in light of the fact that McConnell, who had been teaching for more than 30 years, was skilled at using his best abilities to encourage students to better themselves and participate more vigorously in their studies and in band, for which he was the leader.”
Angela’s complaint does not allege that she was surprised by McConnell’s conduct, or that her surprise was an additional, unforeseen event and caused her injury. Even if it did, we would still conclude that the complaint is defective. We reject the contention that it was unforeseeable that a sixth grade girl would be surprised when her male teacher sexually harassed her and engaged in unwelcome hostile conduct that was pervasive or severe. To accept Angela’s argument would be to countermand our interpretation of the policy. And, as Quan explained, case law rejects the suggestion that chance or foreseeability should be considered in connection with the resulting injury rather than to the acts causing the injury. Angela’s surprise, if any, could not have caused her injury. The cause of her injury was McConnell’s words and his acts of touching her. If we held that Angela’s surprise was an additional, unforeseen event that caused her to suffer injury, it would be tantamount to saying that she was the cause of her own injuries. This, of course, is unreasonable.
Susan maintains that she “did not consider [McConnell’s] hugs and comments as encouraging, but harassing. This reaction was apparently unforeseen and unexpected by McConnell.” Susan’s contention adds nothing to the argument unsuccessfully advanced by Angela above.
c. The argument that Horace Mann supports a finding of coverage.
Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1084–1085 (Horace Mann).
Angela, Susan and McConnell contend that we should find coverage based on Horace Mann.
Horace Mann involved a teacher seeking a defense under an educator’s liability policy after being sued by a minor student claiming she was damaged by the teacher’s sexual and other misconduct. (Horace Mann, supra, 4 Cal.4th at p. 1078.) The insurer obtained summary judgment due to lack of a potential for coverage, and our Supreme Court reversed. The insurance policy covered “damages ‘which the insured shall become legally obligated to pay as a result of any claim arising out of an occurrence in the course of the insured’s educational employment activities, and caused by any acts or omissions of the insured.’” (Id. at pp. 1079–1080.) There was no requirement that a covered event be an accident; rather, there was an exclusion for “civil suits arising from criminal acts other than corporal punishment.” (Id. at p. 1080.) It was established that the teacher committed a crime because he pleaded nolo contendere to violating Penal Code section 288, subdivision (a) (commission of a lewd act upon a child under age 14). Nonetheless, the court concluded that while J.C. Penney and Insurance Code section 533 barred coverage for the teacher’s molestation of his student, there was a triable issue as to whether other misconduct—such as his public embarrassment of his student—was severable from the molestation and therefore gave rise to a duty to defend. (Horace Mann, supra, 4 Cal.4th at p. 1083.)
The issue was whether the teacher’s conduct fell within the exclusion for criminal acts, and whether coverage was barred by Insurance Code section 533. There was no discussion of whether his conduct was an accident. Consequently, Horace Mann does not provide any guidance for our analysis of the accident provision in Chicago’s policy. Briones bolsters our point. In that case, the insurer sought declaratory relief regarding its duty to defend an insured who was sued on allegations that he raped and stalked a 15-year-old resident at the California School for the Deaf in Riverside. (Briones, supra, 81 Cal.App.4th at pp. 800–801.) The court stated: “Under the policy in Horace Mann, there was a possibility of liability for other misconduct not amounting to sexual molestation. Under the policy here, there was no such possibility because the policy terms were significantly different: the policy here insured only against an ‘accident or occurrence’ and specifically excluded coverage for injuries arising from sexual molestation and harassment.” (Id. at p. 810.) In particular, the court concluded that the insured’s conduct was intentional, noted that “intentional actions are . . . not accidents,” and explained that “[a]n ‘occurrence’ is generally defined in the insurance industry as an accident resulting in bodily injury.” (Id. at p. 811.)
Another case Angela and Susan cite, State Farm Fire & Casualty Co. v. Century Indemnity Co. (1997) 59 Cal.App.4th 648 (State Farm), is similarly inapposite. In State Farm, the teacher accused of sexual misconduct was covered by insurance that applied to all damages he was legally obligated to pay due to personal injury occurring while he was acting within the scope of his duties. (Id. at p. 652.) But State Farm is a case that does not involve an accident requirement.
d. The argument that there is coverage for continuous or repeated exposure to McConnell’s inappropriate conduct.
Next, Angela and Susan posit that there was an occurrence because the policy defines an accident to include continuous or repeated exposure to substantially the same general conditions. Angela claims that “McConnell’s hugs and comments to [her] qualify as an ‘accident’ under the language of [Chicago’s] policy and as interpreted by relevant California law. The cases invite us to look not at the intent of the individual, but the resulting harm on the recipient. In this case, [Angela’s] continued and repeated exposure to McConnell’s acts in creating a hostile school environment for her qualifies her claims as ‘an occurrence.’”
The only citation we are provided with to support the point urged is Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715 (Shell Oil). That case explained that “‘including’ is a word of enlargement. [Here] it enlarges the meaning of ‘accident’ to add exposure to damaging conditions; gradual events can then be ‘accidents’ and ‘occurrences’ under the policies. This change broadened the scope of covered events because some courts required that ‘accidents’ be ‘sudden.’ [Citation.]” (Id. at p. 749.) Shell Oil does not aid Angela and Susan on appeal. It establishes that an accident can be gradual as well as sudden, but it does not change the nature of what is considered an accident in Chicago’s policy. While Shell Oil considered a pollution exclusion and held that whether damage was “expected or intended” by the insured was a subjective inquiry, it noted that occurrence definitions require that “such events be accidents.” (Ibid.) This definition refers to the cause, or event, and not the harm resulting from the accident. In other words, the definition of accident referenced in Shell Oil is compatible with the definition in Quan.
It is possible for an accident to be expected in the pollution context. For example, if a company knows its gasoline pipes have deteriorated but does not fix them, leakage into the soil should be expected.
Moving on, Susan cites Meyer v. Pacific Employers Ins. Co. (1965) 233 Cal.App.2d 321 (Meyer) to support her contention that McConnell’s conduct resulted in an occurrence. Meyer states: “The fact that an act which causes an injury is intentional does not take the consequence of that act outside the coverage of a policy which excludes damage unless caused by accident for if the consequence that is the damage or injury is not intentional and is unexpected it is accidental in character. [Citation.]” (Id. at p. 327.) She also cites Chu, supra, 224 Cal.App.3d at page 96, which held: “When the injury is an unexpected or unintended consequence of the insured’s conduct, it may be characterized as an accident for which coverage exists, but when the injury suffered is expected or intended, coverage is denied because there is no ‘accident.’” But Meyer and Chu did not resolve the redundancy created if “accident” and injury “expected or intended” by the insured are read to mean the same thing. Also, they did not construe this policy in the context of this case. We decline to follow Meyer and Chu and remain committed to applying Quan.
e. The argument that the definition of occurrence should not be enforced.
It is Susan’s position that the definition of occurrence in the policy should not be enforced because it is hidden at the back of the policy with no reference to it in the coverage section and is not conspicuous, plain and clear. She bases this argument on the following quote from our Supreme Court: “In the insurance context, ‘we begin with the fundamental principle that an insurer cannot escape its basic duty to insure by means of an exclusionary clause that is unclear. As we have declared time and again “any exception to the performance of the basic underlying obligation must be so stated as clearly to apprise the insured of its effect.”’ [Citation.] Coverage may be limited by a valid endorsement and, if a conflict exists between the main body of the policy and an endorsement, the endorsement prevails. [Citation.] But to be enforceable, any provision that takes away or limits coverage reasonably expected by an insured must be ‘conspicuous, plain and clear.’ [Citation.]” (Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, 1204 (Haynes).)
We cannot accede to Susan’s position.
The rule expressed in Haynes applies to limitations on underlying coverage or exclusions. The definition of occurrence in the policy is not an exclusion or limitation; rather, it defines the coverage. Moreover, the definition of occurrence is plainly and clearly set forth in the policy’s definitions.
Being that the issues heretofore discussed are determinative of whether the pleadings are factually sufficient, we need not reach the remaining coverage issues briefed by Angela, Susan and McConnell.
4. There is no reasonable possibility Angela and Susan can amend.
According to Angela, she should be “given the opportunity to plead the facts which would show that the lack of training regarding sexual harassment and lack of supervision would establish the negligent character of McConnell’s actions using inappropriate language and touching of [Angela].” This argument is not well taken. Angela proposes to amend with allegations that go to McConnell’s state of mind while engaging in deliberate acts. But it is the deliberate nature of the acts, not his state of mind, which is relevant to this colloquy. Angela failed to demonstrate that she can successfully amend.
As for Susan, she seeks an opportunity “to plead facts such as the lack of training regarding sexual harassment, and the lack of supervision, and the ratification or approval of [McConnell’s] actions by the [Los Angeles Unified School District]” and to amend “to establish the negligent character of McConnell’s actions in using inappropriate language and inappropriate touching and hugging.” Whether McConnell lacked training and supervision is beside the point. He acted volitionally, and nothing which occurred can be construed as accidental.
DISPOSITION
The judgment of dismissal is affirmed.
Chicago shall recover its costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.
McConnell alerts us to a Ninth Circuit case that resolved an appeal involving allegations that an insured touched a three-year-old girl in the anal or vaginal area while she was in a child care center. (State Farm Fire & Cas. Co. v. Nycum (9th Cir. 1991) 943 F.2d 1100, 1102 (Nycum).) The court held that the insurance company had to indemnify the insured because there was no evidence that the touching was intended. (Id. at p. 1107.) Nycum offers us no guidance—it does not grapple with the intent to act versus intent to harm debate.