Thomas Francis v. Allstate Insurance Company , 709 F.3d 362 ( 2013 )


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  •                        PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    THOMAS MICHAEL FRANCIS;               
    DANIELLE FRANCIS,
    Plaintiffs-Appellants,
    v.                         No. 12-1563
    ALLSTATE INSURANCE COMPANY,
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the District of Maryland, at Baltimore.
    William D. Quarles, Jr., District Judge.
    (1:11-cv-01030-WDQ)
    Argued: January 30, 2013
    Decided: March 7, 2013
    Before DAVIS, DIAZ, and THACKER, Circuit Judges.
    Affirmed by published opinion. Judge Davis wrote the opin-
    ion, in which Judge Diaz and Judge Thacker joined.
    COUNSEL
    ARGUED: Edward J. Brown, LAW OFFICE OF EDWARD
    J. BROWN, LLC, Ellicott City, Maryland, for Appellants.
    Ronald Weldon Cox, Jr., MCCARTHY WILSON, LLP,
    Rockville, Maryland, for Appellee. ON BRIEF: Thomas Pat-
    2           FRANCIS v. ALLSTATE INSURANCE COMPANY
    rick Ryan, MCCARTHY WILSON, LLP, Rockville, Mary-
    land, for Appellee.
    OPINION
    DAVIS, Circuit Judge:
    Appellants Thomas and Danielle Francis ("the Francises"
    or "Appellants") appeal an order of the district court granting
    summary judgment to Appellee Allstate Insurance Company
    ("Allstate"). In March 2011, Appellants brought this action in
    Maryland state court seeking a declaration as to Allstate’s
    duty under a renters insurance policy to defend and indemnify
    the Francises in a tort suit brought against them, and others,
    in the Circuit Court for Frederick County, Maryland. Mean-
    while, in the tort suit, the state court entered a final judgment
    in favor of all defendants (including the Francises) on April
    6, 2011. Thereafter, Allstate filed a Notice of Removal, and
    this action was removed to the United States District Court for
    the District of Maryland on the basis of diversity jurisdiction.
    After the district court denied Appellants’ first motion to
    remand, Allstate filed a motion for summary judgment, con-
    tending that the Francises’ renters insurance policy, issued in
    California, did not provide coverage for the claims asserted in
    the underlying tort action. In response, Appellants moved a
    second time to remand, now on the ground that (as they
    sought only the costs of their defense of the tort suit, rather
    than any potential indemnity) the amount in controversy did
    not exceed the $75,000 jurisdictional threshold, and thus the
    district court lacked subject matter jurisdiction. Appellants
    also opposed Allstate’s motion for summary judgment on the
    merits.
    On April 18, 2012, the district court denied the second
    motion to remand and granted Allstate’s motion for summary
    FRANCIS v. ALLSTATE INSURANCE COMPANY                 3
    judgment, concluding that Allstate did not have a duty to
    defend. Francis v. Allstate Ins. Co., 
    869 F. Supp. 2d 663
     (D.
    Md. 2012). Appellants filed a timely notice of appeal. For the
    reasons that follow, we affirm.
    I.
    A.
    In March 2008, Danielle Francis, a California resident, and
    her minor son Thomas were sued by Troy Towers in the Cir-
    cuit Court for Frederick County, Maryland ("the Underlying
    Action"). Towers worked as a Resident Aide at the Maryland
    School for the Deaf ("MSD"), which Thomas Francis attended.1
    The complaint in the Underlying Action asserted claims of
    defamation, invasion of privacy-false light, malicious prose-
    cution, civil conspiracy and intentional infliction of emotional
    distress. The complaint alleged that Thomas Francis, with the
    assistance of his parents, "made false statements about [Tow-
    ers], claiming he had sexually abused . . . and assaulted [ ]
    Thomas Francis and other students at MSD." J.A. 38. It fur-
    ther averred that the Francises knowingly made the false and
    defamatory statements about Towers, or in the alternative,
    that they negligently made them. Criminal charges had been
    filed against Towers based in part on the alleged statements
    but were later dismissed; Towers alleged that the statements
    injured his reputation in the community and at MSD, that as
    a result of the statements he suffered mental anguish and
    humiliation, and that he had been temporarily suspended
    without pay from his employment.
    Appellants did not and do not deny making the alleged
    statements, but contend that Ms. Francis made them for the
    sole purpose of protecting her son and "without intent to slan-
    1
    We were advised at oral argument that at the time the Underlying
    Action was filed, Thomas Francis was a minor; he has now attained his
    majority.
    4           FRANCIS v. ALLSTATE INSURANCE COMPANY
    der Mr. Towers [ ]or invade his privacy." Appellants’ Br. 3.
    Additionally, they argue that Thomas Francis made the state-
    ments to school officials, and later to police, "solely for [his
    own] protection and not to defame or otherwise harm Mr.
    Towers." Id. at 4.
    At the time of the allegedly defamatory statements, the
    Francises were insured under a California Renters Policy
    ("the Policy") issued by Allstate. The Policy covered Danielle
    Francis’s residence in Santa Clara, California, and was mailed
    to her at that residence. The Policy provided, in relevant part:
    Subject to the terms, conditions and limitations of
    this policy, Allstate will pay damages which an
    insured person becomes legally obligated to pay
    because of bodily injury or property damage arising
    from an occurrence to which this policy applies, and
    is covered by this part of the policy.
    [Allstate] may investigate or settle any claim or suit
    for covered damages against an insured person. If an
    insured person is sued for these damages, [Allstate]
    will provide a defense with counsel of [its] choice,
    even if the allegations are groundless, false or fraud-
    ulent. [Allstate] [is] not obligated to pay any claim
    or judgment after [it] [has] exhausted [its] limit of
    liability.
    J.A. 77, Policy at p. 14.
    The Policy defines "occurrence" as:
    [A]n accident, including continuous or repeated
    exposure to substantially the same general harmful
    conditions, during the policy period, resulting in
    bodily injury or property damage.
    J.A. 66, Policy at p. 3.
    FRANCIS v. ALLSTATE INSURANCE COMPANY              5
    "Bodily Injury" is defined as "physical harm to the body,
    including sickness or disease, and resulting death . . . ." J.A.
    65, Policy at p. 2. "Property Damage" is defined as "physical
    injury to or destruction of tangible property, including loss of
    its use resulting from such physical injury or destruction."
    J.A. 66, Policy at p. 3.
    The Policy also contains a choice-of-law provision which
    states:
    This policy is issued in accordance with the laws of
    California and covers property or risks principally
    located in California. Subject to the following para-
    graph, the laws of California shall govern any and all
    claims or disputes in any way related to this policy.
    If a covered loss to property, or any other occurrence
    for which coverage applies under this policy happens
    outside California, claims or disputes regarding that
    covered loss to property, or any other covered occur-
    rence may be governed by the laws of the jurisdic-
    tion in which that covered loss to property, or other
    covered occurrence happened, only if the laws of
    that jurisdiction would apply in the absence of a con-
    tractual choice of law provision such as this.
    J.A. 89, Policy Endorsement, California Renters Amendatory
    Endorsement.
    The Francises initiated this action in the Circuit Court for
    Frederick County, Maryland, contending that Allstate had a
    duty to defend them, under the Policy, against Towers’s suit.
    The Complaint for Declaratory Judgment asserted that, in
    addition to Towers’s false-light contentions, Towers "sus-
    tained bodily injury as a result of the [Francises’] alleged acts
    —e.g. impotency." J.A. 9. At the time the declaratory judg-
    ment action was filed, the Francises (by their privately
    retained counsel) had already filed a motion for summary
    6            FRANCIS v. ALLSTATE INSURANCE COMPANY
    judgment in the Underlying Action. That motion was granted
    on March 16, 2011, and final judgment in favor of all defen-
    dants was entered April 6, 2011. At the conclusion of the
    Underlying Action, the Francises had expended $66,347 in
    attorney’s fees and costs for their defense.
    On April 20, 2011, Allstate timely removed the declaratory
    judgment action to the United States District Court for the
    District of Maryland on the basis of diversity jurisdiction. The
    Francises filed a timely motion to remand the case to state
    court on May 19, 2011, contending that the removal was
    untimely because the thirty-day time limit for removal had
    expired. The district court found the removal timely and
    denied the motion to remand.
    Allstate filed a motion for summary judgment in the declar-
    atory judgment action on October 28, 2011, asserting that it
    had no duty to defend the Francises because, under California
    law, the statements made about Towers did not constitute an
    "accident," and therefore claims arising from them were not
    covered by the Policy.2 The Francises filed a second motion
    to remand the case, which challenged the district court’s sub-
    ject matter jurisdiction on the basis that the $75,000 amount-
    in-controversy threshold had not been met, and they also sub-
    stantively challenged Allstate’s denial of coverage of the
    Underlying Action.
    On April 17, 2012, the district court denied the Francises’
    second motion for remand and granted Allstate’s motion for
    summary judgment. This timely appeal followed.
    2
    As previously mentioned, at the time of removal and thereafter, the
    Underlying Action had been resolved in favor of the Francises. Thus, as
    the parties agree, Allstate’s duty to indemnify the Francises was not at
    issue.
    FRANCIS v. ALLSTATE INSURANCE COMPANY              7
    II.
    This Court reviews the denial of a motion to remand to
    state court de novo. Lontz v. Tharp, 
    413 F.3d 435
    , 439 (4th
    Cir. 2005). Likewise, we review a district court’s grant of
    summary judgment de novo, applying the same standard used
    by the district court. Reynolds v. Am. Nat’l Red Cross, 
    701 F.3d 143
    , 149 (4th Cir. 2012). The Court "view[s] all facts
    and reasonable inferences therefrom in the light most favor-
    able to the nonmoving party." T-Mobile Ne., LLC v. City
    Council of City of Newport News, Va., 
    674 F.3d 380
    , 385 (4th
    Cir. 2012) (internal quotations and citations omitted). Under
    Federal Rule of Civil Procedure 56(a), summary judgment
    should be granted "if the movant shows that there is no genu-
    ine dispute as to any material fact and the movant is entitled
    to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The
    moving party is ‘entitled to judgment as a matter of law’
    when the nonmoving party fails to make an adequate showing
    on an essential element for which it has the burden of proof
    at trial." Maracich v. Spears, 
    675 F.3d 281
    , 291 (4th Cir.
    2012), cert. granted, 
    133 S. Ct. 98
     (2012).
    III.
    Appellants first contend the district court erred in rejecting
    their jurisdictional challenge because the amount-in-
    controversy requirement was not met. The removal of a civil
    case from state to federal court is governed by 
    28 U.S.C. § 1446
    . That statute provides:
    (a) Generally. — A defendant or defendants desiring
    to remove any civil action from a State court shall
    file in the district court of the United States for the
    district and division within which such action is
    pending a notice of removal signed pursuant to Rule
    11 of the Federal Rules of Civil Procedure and con-
    taining a short and plain statement of the grounds for
    removal, together with a copy of all process, plead-
    8           FRANCIS v. ALLSTATE INSURANCE COMPANY
    ings, and orders served upon such defendant or
    defendants in such action.
    
    28 U.S.C. § 1446
    (a).
    The removability of a case "depends upon the state of the
    pleadings and the record at the time of the application for
    removal . . . ." Alabama Great S. Ry. Co. v. Thompson, 
    200 U.S. 206
    , 216 (1906); Pullman Co. v. Jenkins, 
    305 U.S. 534
    ,
    538 (1939). If diversity of citizenship, under 
    28 U.S.C. § 1332
    (a), provides the grounds for removal, then "the sum
    demanded in good faith in the initial pleading shall be deemed
    to be the amount in controversy . . . ." 
    28 U.S.C. § 1446
    (c)(2).
    If a complaint "does not allege a specific amount of damages,
    the removing defendant must prove by a preponderance of the
    evidence that the amount in controversy exceeds [$75,000]."
    De Aguilar v. Boeing Co., 
    11 F.3d 55
    , 58 (5th Cir. 1993). "In
    actions seeking declaratory or injunctive relief, it is well
    established that the amount in controversy is measured by the
    value of the object of the litigation." Hunt v. Washington State
    Apple Adver. Comm’n, 
    432 U.S. 333
    , 347 (1977); McNutt v.
    Gen. Motors Acceptance Corp. of Indiana, 
    298 U.S. 178
    , 181
    (1936) (noting the "principle that jurisdiction is to be tested
    by the value of the object or right to be protected against
    interference").
    Here, when Allstate filed its Notice of Removal, according
    to the state court complaint, the object of the litigation was the
    Francises’ request that Allstate defend and/or indemnify them
    in the Underlying Action for defamation and related torts.
    Despite the fact that by the time Allstate removed the case to
    federal court, indemnity was no longer at issue, the relief
    requested in the declaratory judgment complaint specifically
    included the costs and expenses to be incurred in the declara-
    tory judgment action as well as defense costs in the Underly-
    ing Action. Nevertheless, Appellants now contend that the
    only amount that ought to be considered in ascertaining
    whether the amount in controversy exceeds $75,000 is the
    FRANCIS v. ALLSTATE INSURANCE COMPANY                         9
    total of the attorney’s fees incurred in defending against the
    Underlying Action. They contend that the costs of pursuing
    this declaratory judgment action are "not a part of the amount
    of controversy calculation as they are not recoverable by stat-
    ute or contract provision," and "even if they were, a fact find-
    ing hearing would need to be conducted, to determine if the
    costs would exceed the $6,000 gap [between the defense costs
    for the Underlying Action and the $75,000 threshold]."
    Appellants’ Br. 25, n.3. In other words, Appellants argue
    (with insight flowing from 20-20 hindsight) that the sole
    object of this litigation was the $66,347 expended by the
    Francises to defend against the Underlying Action. Allstate
    asserts, to the contrary, that the value of the attorney’s fees
    likely to be incurred throughout the declaratory judgment
    action should also be included in the amount-in-controversy
    calculation.
    Generally, attorney’s fees are not included in the amount-
    in-controversy calculation, but courts have created two excep-
    tions to this rule: "(1) if the fees are provided for by contract;
    or (2) if a statute mandates or allows payment of attorney’s
    fees."    15-102       Moore’s      Federal     Practice,   Civil
    § 102.106(6)(a).
    Appellants brought their declaratory judgment action under
    the Maryland Uniform Declaratory Judgment Act.3 With
    regard to the availability of attorney’s fees in a declaratory
    judgment action, the Maryland Court of Appeals has held
    [A]n insurer is liable for the damages, including
    attorneys’ fees, incurred by an insured as a result of
    the insurer’s breach of its contractual obligation to
    3
    The Maryland Uniform Declaratory Judgment Act provides:
    Except for the District Court, a court of record within its jurisdic-
    tion may declare rights, status, and other legal relations whether
    or not further relief is or could be claimed . . . .
    
    Md. Code Ann., Cts. & Jud. Proc. §3-403
    .
    10          FRANCIS v. ALLSTATE INSURANCE COMPANY
    defend the insured against a claim potentially within
    the policy’s coverage, and this is so whether the
    attorneys’ fees are incurred in defending against the
    underlying damage claim or in a declaratory judg-
    ment action to determine coverage and a duty to
    defend.
    Bankers & Ship. Ins. v. Electro Enter., 
    415 A.2d 278
    , 282
    (Md. 1980). Additionally, under the Maryland Declaratory
    Judgment Act, "further relief based on a declaratory judgment
    or decree may be granted if necessary or proper." 
    Md. Code Ann., Cts. & Jud. Proc. §3-412
    .
    The district court reviewed the above authorities bearing on
    the Maryland courts’ position on attorney’s fees in declaratory
    judgment suits and concluded that "[w]hen Maryland law per-
    mits recovery of attorneys’ fees, ‘[p]otential attorneys’ fees
    should be considered in determining whether the amount in
    controversy in a diversity action exceeds the jurisdictional
    threshold.’" Francis, 869 F. Supp. 2d at 669 (citing Gilman
    v. Wheat, First Sec., Inc., 
    896 F. Supp. 507
    , 511 (D. Md.
    1995) (finding that a claim for relief under the Maryland
    Securities Act authorizes recovery of attorney’s fees in certain
    situations, and concluding that potential attorney’s fees should
    be considered in the amount-in-controversy determination)).
    After considering the $66,347 expended in the Underlying
    Action, the district court concluded that "[e]xperience and
    common sense suggest that the Plaintiffs’ attorneys’ fees in
    [the declaratory judgment] case will exceed $8,653 — the dif-
    ference between $75,000 and the $66,347 the Plaintiffs spent
    in Towers’s lawsuit." Francis, 869 F. Supp. 2d at 670. We
    agree.
    We also agree with the district court that, as Maryland case
    law allows for the recovery of attorney’s fees in declaratory
    judgment actions, the attorney’s fees in the Francises’ action
    are properly considered in the amount-in-controversy calcula-
    tion here. As the complaint in this action did not seek a spe-
    FRANCIS v. ALLSTATE INSURANCE COMPANY                          11
    cific amount in damages, Allstate need only "prove by a
    preponderance of the evidence that the amount in controversy
    exceeds the [jurisdictional minimum]." De Aguilar, 
    11 F.3d at 58
    .
    As the district court noted, "[t]his action involves federal
    jurisdiction, contract interpretation, and choice of law issues
    that were not addressed in the underlying tort action." Fran-
    cis, 869 F. Supp. 2d at 670. The complexity of the case is suf-
    ficient to establish that it is more likely than not that the
    attorney’s fees likely to be incurred by Appellants in this
    declaratory judgment action, when coupled with the amount
    they expended to defend the tort action, will exceed the juris-
    dictional threshold. Thus, the district court did not err in its
    rejection of the Appellants’ jurisdictional challenge.4
    IV.
    Appellants’ challenge to the merits of the district court’s
    coverage determination rests primarily on their contention
    that Maryland law, rather than California law, applies to the
    issue of contract interpretation.5 We reject that contention and
    affirm the district court’s application of California law for the
    reasons set forth within.
    A.
    A federal court sitting in diversity is required to apply the
    substantive law of the forum state, including its choice-of-law
    rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 
    313 U.S. 487
    ,
    496-97 (1941); Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
    , 79
    (1938). Maryland courts have "long recognized the ability of
    contracting parties to specify in their contract that the laws of
    4
    Tellingly, Appellants had not raised the amount-in-controversy issue in
    their initial motion to remand.
    5
    There is no dispute between the parties that, as to issues of tort liability
    possibly relevant to the Underlying Action, Maryland law would apply.
    12            FRANCIS v. ALLSTATE INSURANCE COMPANY
    a particular State will apply in any dispute over the validity,
    construction, or enforceability of the contract." Jackson v.
    Pasadena Receivables, Inc., 
    921 A.2d 799
    , 803 (Md. 2007).
    Such choice-of-law provisions "trump the conflict of law
    rules that otherwise would be applied by the court." 
    Id.
    The Policy’s choice-of-law provision called for the applica-
    tion of California law, unless a covered occurrence took place
    outside of California, in which case
    claims or disputes regarding that covered loss to
    property, or any other covered occurrence may be
    governed by the laws of the jurisdiction in which
    that covered loss to property, or other covered occur-
    rence happened, only if the laws of that jurisdiction
    would apply in the absence of a contractual choice
    of law provision such as this.
    J.A. 89, Policy Endorsement, California Renters Amendatory
    Endorsement. Thus, Maryland law applies to the issue of
    whether Allstate had a duty to defend the Francises if Mary-
    land law would apply without the choice-of-law provision in
    the Policy.
    B.
    Maryland courts follow the doctrine of lex loci contractus
    when interpreting insurance contracts and determining which
    state’s law governs.6 Allstate Ins. Co. v. Hart, 
    611 A.2d 100
    ,
    6
    Appellants contend that the district court erred in finding that the
    Maryland doctrine of lex loci contractus required the application of Cali-
    fornia law. They assert that the doctrine of renvoi should have been
    applied.
    The doctrine of renvoi provides that "when the forum court’s choice-of-
    law rules would apply the substantive law of a foreign jurisdiction to the
    case before the forum court, the forum court may apply the whole body
    of the foreign jurisdiction’s substantive law including the foreign jurisdic-
    FRANCIS v. ALLSTATE INSURANCE COMPANY                        13
    101 (Md. 1992). The doctrine requires courts to apply the law
    of the jurisdiction where the contract was made to determine
    questions of its validity and construction. 
    Id.
     Where the con-
    tion’s choice-of-law rules." Am. Motorists Ins. Co. v. ARTRA Group, Inc.,
    
    659 A.2d 1295
    , 1302 (Md. 1995).
    Under a "limited renvoi exception," Maryland courts "avoid the irony
    of applying the law of a foreign jurisdiction when that jurisdiction’s con-
    flict of law rules would apply Maryland law." Id. at 1304. In such a situa-
    tion, Maryland courts apply Maryland substantive law to agreements
    entered in foreign jurisdictions, notwithstanding the lex loci contractus
    doctrine, when
    (1) Maryland has the most significant relationship, or, at least, a
    substantial relationship with respect to the contract issue pre-
    sented; and
    (2) The state where the contract was entered into would not apply
    its own substantive law, but instead would apply Maryland sub-
    stantive law to the issue before the court.
    Id.
    Applying this two-part test to the facts here demonstrates the inappro-
    priateness of invoking renvoi. First, although the events that led to the fil-
    ing of the Underlying Action took place in Maryland, the contract issue
    presented is whether Allstate had a duty to defend the Francises based on
    the terms of a contract that was made in California. Not only does Mary-
    land not have the most significant relationship to the issue of whether All-
    state has a duty to defend under a California contract, it has virtually no
    relationship to it other than the fact that the event that triggered the
    attempt to enforce the duty happened to take place in Maryland. Accord-
    ingly, application of the first prong does not weigh in favor of renvoi.
    As for the second prong, Appellants provide no support for the proposi-
    tion that, in the face of a choice-of-law provision in the Policy that dic-
    tated California law to govern any disputes arising under the agreement,
    California would not apply its own substantive law but would instead
    apply Maryland substantive law.
    As neither of the two prongs of the test for application of the limited
    doctrine of renvoi is met here, the controlling doctrine is lex loci contrac-
    tus. Thus, the district court correctly determined that California law gov-
    erns the issue of contract interpretation in this case, i.e., whether Allstate
    owed the Francises a duty to defend under the Policy.
    14           FRANCIS v. ALLSTATE INSURANCE COMPANY
    tract is "made" is defined as "‘where the last act is performed
    which makes [the] agreement a binding contract.’" Sting Sec.
    Inc. v. First Mercury Syndicate, Inc., 
    791 F. Supp. 555
    , 558
    (D. Md. 1992) (quoting Travelers Indem. Co. v. Allied-Signal,
    Inc., 
    718 F. Supp. 1252
    , 1253 (D. Md. 1989)). When the con-
    tract is an insurance policy, this is usually "the state in which
    the policy is delivered and the premiums are paid." Aetna
    Cas. & Sur. Co. v. Souras, 
    552 A.2d 908
    , 911 (Md. Ct. Spec.
    App. 1989).
    Here, Danielle Francis resides in California, and the Policy
    was mailed to her California home.7 Danielle Francis also
    made premium payments while living in California. Thus,
    according to Maryland’s lex loci contractus rule for choice-
    of-law decisions, California law governs the analysis of
    whether Allstate had a duty to defend the Francises in the
    Underlying Action.
    C.
    Appellants argue that even if the district court did not err
    in holding that California law applies, Allstate nonetheless
    owed the Francises a duty to defend under the Policy. We dis-
    agree with Appellants’ argument.
    In California, "‘[t]he duty to defend [under a liability insur-
    ance contract] is determined by reference to the policy, the
    complaint, and all facts known to the insurer from any
    source.’" Montrose Chem. Corp. v. Superior Court, 
    861 P.2d 1153
    , 1161 (Cal. 1993) (emphasis in original). More particu-
    larly, as noted by the district court, under the terms of the Pol-
    icy, in order to establish Allstate’s duty to defend, the
    Francises were required to demonstrate that "the action arose
    from an ‘accident’ and sought damages for ‘bodily injury’ or
    7
    It appears the parties have never suggested that Thomas Francis’s tem-
    porary residence in Maryland as a student at the MSD bears on either the
    jurisdictional or the substantive issues presented in this case.
    FRANCIS v. ALLSTATE INSURANCE COMPANY              15
    [‘]property damage.[’]" Francis, 869 F. Supp. 2d at 672 (cit-
    ing Allstate Ins. Co. v. LaPore, 
    762 F. Supp. 268
    , 270 (N.D.
    Cal. 1991)).
    On appeal, the Francises contend that the statements made
    about Towers, although made voluntarily, were not made with
    the intent to "deliberately hurt Mr. Towers," but rather with
    the intent to "trigger the school’s intervention." Appellants’
    Br. 19. They argue that the district court incorrectly focused
    on the fact that the statements were intentionally made when
    it held that no "accident" occurred.
    Allstate responds that, under California law, "an insured’s
    intentional acts do not become ‘accidental’ merely because he
    did not intend to cause harm"; rather, "California courts have
    held for nearly a half century that the term ‘accident’ applies
    to the insured’s act itself, not the consequences of that act."
    Appellee’s Br. 36. (Emphasis in original).
    The Supreme Court of California has defined "accident," as
    used in insurance policies, as "‘an unexpected, unforeseen, or
    undesigned happening or consequence from either a known or
    unknown cause.’" Hogan v. Midland Nat’l Ins. Co., 
    476 P.2d 825
    , 828 (Cal. 1970) (quoting Geddes & Smith, Inc. v. St.
    Paul-Mercury Indem. Co., 
    334 P.2d 881
    , 884 (Cal. 1959)).
    The California Court of Appeal has instructed that "‘[t]he def-
    inition of "accident" halts any argument that [the insured]
    intended his act but not the resulting harm.’" Commercial
    Union Ins. Co. v. Superior Court of Humboldt County, 
    242 Cal. Rptr. 454
    , 456 (Cal. Ct. App. 1987) (quoting Royal
    Globe Ins. Co. v. Whitaker, 
    226 Cal. Rptr. 435
    , 438 (Cal. Ct.
    App. 1986)).
    California courts construing policies with provisions simi-
    lar to those in the Allstate policy have repeatedly held that
    intentional acts are not "accidents," and have found insurers
    not liable for intentional conduct of their insureds. Illustrative
    is Merced Mut. Ins. Co. v. Mendez, in which the California
    16           FRANCIS v. ALLSTATE INSURANCE COMPANY
    Court of Appeal considered, in a declaratory judgment action,
    whether Merced Mutual had an obligation to defend or
    indemnify its insured in a suit brought against him for dam-
    ages resulting from having engaged in sexual activities with
    a coworker. 
    261 Cal. Rptr. 273
     (Cal. Ct. App. 1989). The
    plaintiff in the underlying tort suit alleged that the insured
    sexually assaulted her several times at their workplace. The
    insured contended that the sexual encounters were consensual.
    The policy covered suits against the insured for "damages
    because of bodily injury or property damage caused by an
    occurrence." 
    Id. at 275
    . "Occurrence" was defined as "an acci-
    dent, including exposure to conditions, which results, during
    the policy period, in: [ ] a bodily injury; or [ ] property dam-
    age." 
    Id.
    The Mendez court held the conduct was not covered
    because "[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." 
    Id. at 279
    . The court emphasized:
    where the insured intended all of the acts that
    resulted in the victim’s injury, the event may not be
    deemed an ‘accident’ merely because the insured did
    not intend to cause injury.
    
    Id.
    As Mendez and numerous other cases demonstrate, under
    California law, "‘[w]hatever the motivation,’ because [the
    Francises’] conduct was ‘calculated and deliberate’ . . . it was
    not an ‘accident’ and thus not an ‘occurrence’ within the
    meaning of the policy provision." 
    Id. at 280
     (quoting Hogan,
    
    476 P.2d at 828-29
    ).
    Appellants rely heavily on an outlier from this line of deci-
    sions, namely, an opinion of a California federal district court.
    See Allstate Ins. Co. v. Vavasour, 
    797 F. Supp. 785
     (N.D. Cal.
    FRANCIS v. ALLSTATE INSURANCE COMPANY                     17
    1992). In Vavasour, in an action for a declaratory judgment,
    the district court considered whether Allstate had a duty to
    defend or indemnify its insureds in a suit for trespass that was
    pending in California state court. 
    Id.
     The court called the case
    a "close question," but concluded that because under Califor-
    nia law, a person can be liable for trespassing for conduct that
    is "either negligent, reckless or intentional, or the product of
    ultrahazardous activity . . . , [t]respass is not merely an inten-
    tional tort" and thus an alleged trespass may be an accident in
    the "absence of intent to trespass . . . ." 
    Id. at 788
    . The Vava-
    sour court denied Allstate’s claim that it had no duty to
    defend because the insureds’ conduct (driving in and out of a
    driveway they believed was their own) was intentional. In so
    holding, the court distinguished cases cited by Allstate on the
    basis that the Vavasour’s conduct "may not have been inher-
    ently wrongful and, indeed, may have been devoid of intent
    or even knowledge . . . ." Vavasour, 
    797 F. Supp. at 788
    .
    Appellants’ focus on Vavasour is unpersuasive. The deci-
    sion in Vavasour has been described as "the only California
    case failing to recognize th[e] principle" that the fact that con-
    duct is intentional is dispositive of the question of whether an
    "accident" occurred. Collin v. Am. Empire Ins. Co., 
    26 Cal. Rptr. 2d 391
    , 404 (Cal. Ct. App. 1994).8
    Thus, Vavasour stands alone. The consistently followed
    rule under California law is that intentional conduct is not
    "accidental" even if the resulting injury is wholly unintended.
    The Francises clearly intended to make the statements at issue
    in the Underlying Action; indeed, they hoped, as they con-
    cede, that the statements would translate into action on the
    part of the school (as they did in fact). The actions were inten-
    tional, and under California law, non-accidental.
    8
    The judge who authored Vavasour "promptly issued a new ruling in
    Bailey v. State Farm, [
    810 F. Supp. 267
     (N.D. Cal. 1992)], which reaf-
    firms the principle adopted in every other California decision." Collin v.
    Am. Empire Ins. Co., 
    26 Cal. Rptr. 2d 391
    , 404 (Cal. Ct. App. 1994).
    18         FRANCIS v. ALLSTATE INSURANCE COMPANY
    V.
    For the foregoing reasons, we affirm the judgment of the
    district court.
    AFFIRMED
    

Document Info

Docket Number: 12-1563

Citation Numbers: 709 F.3d 362, 2013 U.S. App. LEXIS 4640, 2013 WL 829141

Judges: Davis, Diaz, Thacker

Filed Date: 3/7/2013

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (21)

Travelers Indemnity Co. v. Allied-Signal, Inc. , 718 F. Supp. 1252 ( 1989 )

Commercial Union Insurance v. Superior Court , 242 Cal. Rptr. 454 ( 1987 )

Aetna Casualty & Surety Co. v. Souras , 78 Md. App. 71 ( 1989 )

Hogan v. Midland National Insurance , 3 Cal. 3d 553 ( 1970 )

Klaxon Co. v. Stentor Electric Manufacturing Co. , 61 S. Ct. 1020 ( 1941 )

Erie Railroad v. Tompkins , 58 S. Ct. 817 ( 1938 )

De Aguilar v. Boeing Co. , 11 F.3d 55 ( 1993 )

Alabama Great Southern Railway Co. v. Thompson , 26 S. Ct. 161 ( 1906 )

Grace Lontz Beverly Pettit v. Joyce Tharp Elizabeth Doak ... , 413 F.3d 435 ( 2005 )

Collin v. American Empire Insurance , 26 Cal. Rptr. 2d 391 ( 1994 )

McNutt v. General Motors Acceptance Corp. , 56 S. Ct. 780 ( 1936 )

Hunt v. Washington State Apple Advertising Commission , 97 S. Ct. 2434 ( 1977 )

Sting Security, Inc. v. First Mercury Syndicate, Inc. , 791 F. Supp. 555 ( 1992 )

Allstate Insurance v. Vavasour , 797 F. Supp. 785 ( 1992 )

Royal Globe Insurance v. Whitaker , 226 Cal. Rptr. 435 ( 1986 )

Maracich v. Spears , 675 F.3d 281 ( 2012 )

Merced Mutual Insurance v. Mendez , 261 Cal. Rptr. 273 ( 1989 )

Gilman v. Wheat, First Securities, Inc. , 896 F. Supp. 507 ( 1995 )

Allstate Insurance v. LaPore , 762 F. Supp. 268 ( 1991 )

Bailey v. State Farm Insurance , 810 F. Supp. 267 ( 1992 )

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