Worried About Ad Injury Claims? Don't Believe The Hype

QUESTION COVERAGE IF INSURED’S SELF-DEFENSE ISN’T AN ACCIDENT

Ever since the California Supreme Court decided Gray v. Zurich Ins. Co. 65 Cal.2d 263 (1966), liability insurers have traditionally provided a defense to their insureds in cases involving physical altercations where the insured claims that he acted in self-defense. The reasoning employed by the courts to impose a duty to defend in such cases is that an injury inflicted in self-defense may both rise to the level of "willful" and "intentional" injury, which is excluded from coverage under Section 533 of the Insurance Code. Curiously, however, no California case has considered whether an injury inflicted in self-defense is an "accident" within the meaning of the insuring agreement in a typical liability policy.

Battery is generally considered to be both a tort and a crime. Penal Code Section 242 provides that a battery is "any willful and unlawful use of force or violence upon the person of another." A harmful contact, intentionally done, is the essence of a battery. Ashcraft v. King 228 Cal.App.3d 604 (1991). Battery is a general intent crime, requiring only intent to do the assaultive act. People v. Thurston 71 Cal.App.4th1050 (1999).

A person charged with committing a battery may argue that he was acting in self-defense. Two types of self-defense are recognized in criminal law: 1) perfect or traditional self-defense, and 2) imperfect self-defense.

Perfect or traditional self-defense exists when the defendant has both a subjectively honest and an objectively reasonable belief in the need for self-defense. (Penal Code Section 197). A finding of perfect self-defense is a complete defense that exculpates the defendant from any liability.

Imperfect self-defense, on the other hand, exists where the defendant has a subjectively honest but an objectively unreasonable belief in the need for self-defense. People v Flannel 25 Cal.3d 668 (1979). It is important to note that imperfect self-defense is only applicable in a case where the defendant is charged with a crime or other offense involving malice as a required element. Imperfect self-defense therefore is not a valid defense in a criminal prosecution or a civil lawsuit for battery. Imperfect self-defense in a criminal prosecution for murder or in a civil lawsuit seeking punitive damages based on malice.

Insurance Code Section 533 generally provides that a liability insurer "is not liable for a loss caused by the willful act of the insured." Liability policies also typically contain exclusion for injury that is expected or intended by the insured, or which results from willful and malicious acts of the insured. A review of the California cases that discuss the issue of self-defense in the context of liability insurance demonstrates that they all analyze the issue of the insurer’s duty to defend from the standpoint of Insurance Code Section 533 or the so-called "intentional act" exclusion.

For example, in Gray v. Zurich, supra, there was a near collision between vehicles driven by John R. Jones and Vernon D. Gray. Jones got out of his vehicle and jerked open the door of Gray’s vehicle. Gray rose from his seat and struck Jones. Jones sued Gray for willful, malicious and intentional assault. Gray tendered his defense to Zurich, which refused to defend on the grounds that the complaint alleged an intentional tort outside the scope of the policy’s coverage. Gray argued self-defense at trial, but judgment was entered against him for $6,000.

Gray then sued Zurich for breach of the duty to defend. The trial court ruled for Zurich, but the Court of Appeal reversed. The court reasoned that Jones’ complaint presented the possibility that he might obtain covered damages. Gray might have been able to show that in physically defending himself, even if he exceeded the reasonable bounds of self-defense, he did not commit willful and intended injury, but engaged only in non-intentional, tortuous conduct.

The court in Gray did not consider the question of whether an injury inflicted in self-defense is an occurrence or an accident within the meaning of the insuring agreement in a typical liability insurance policy. In fact, the policy considered by the court in Gray did not even contain an accident limitation in the insuring agreement.

Most modern liability policies provide coverage for bodily injury and property damage caused by an occurrence, which in turn is defined to mean an accident. The requirement of an accident in the insuring agreement of a liability policy is a standard throughout the insurance industry. Dyer v Northbrook Property & Cas. Ins. Co. 210 Cal.App.3d 1540 (1989). The controlling issue in any casualty claim is whether the claimant was injured as the result of an accident. Commercial Union Ins. Co. v Superior Court 196 Cal.App.3d 1205 (1987).

The California Supreme Court has defined the word accident as "an unexpected, unforeseen, or undersigned happening or consequence from either a known or unknown cause." Hogan v Midland Nat’l, Ins. Co. Cal.3d.553 (1970). An accident is "something out of the usual course of events and which happens suddenly and unexpectedly and without design." State Farm Fire & Casualty Co. v Drasin 152 Cal.App.3d 864 (1984). An accident is never present when the insured performs a deliberate act, unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. Merced Mutual Insurance Co. v Mendez 213 Cal.App.3d 41 (1989).

The requirement of an occurrence or accident, moreover, is contained within the basic insuring agreement of a liability policy. The insured, or any other party seeking coverage, therefore has the burden of establishing that the action potentially seeks the recovery of covered damages arising out of an occurrence or accident. Whittaker Corp. v Allianz Underwriters, Inc. 11 Cal.App.4th 1236 (1992).

As a practical matter, an injury inflicted in self-defense is rarely, if ever, an accident within the meaning of a liability insurance policy. The defendant in essence intends to inflict the amount of harm that he believes is required to fend off the perpetrator. Although the act is purposeful, it is lawful and not wrongful, at least in the case of perfect self-defense. If a defendant commits perfect self-defense, he obtains a defense verdict because his conduct was legally justified and not actionable.

One argument frequently advanced by insureds seeking a defense in lawsuits involving physical altercations is that they acted under a mistaken belief that they had the right to act in self-defense under particular set of circumstances. The argument being that their conduct was merely unreasonable or negligent, and therefore should be covered by insurance.

On closer examination, however, this scenario arguably does not create a potential for the recovery of damages for bodily injury caused by an accident. Obviously, the act itself is still purposeful. The insured is essentially arguing that he intended to injure the claimant, but he mistakenly believed that he was in danger and therefore that he had the right to do so. While this position could save the insured from liability for punitive damages, it is no defense to the battery claim itself. Self-defense is only available as a defense to a claim for civil battery if the perpetrator had an objectively reasonable belief in the need for self-defense. Lowry v Standard Oil Co. 54 Cal.App.2d 782 (1942). If an insured is unable to convince a jury that he had a reasonable belief in the need for self-defense, then the insured’s conduct was deliberate, unjustified, willful and actionable.

In Swain v California Case. Ins. Co. 99 Cal.App.4th 1 (2002), California Casualty’s insureds were sued by their tenants for housing discrimination. California Casualty briefly defended the action and then withdrew from the defense on the basis that the claims alleged in the lawsuit did not constitute an "occurrence." The insureds settled with their tenants and then sued California Casualty for reimbursement and damages. The Court of Appeal affirmed a summary judgment in favor of California Casualty.

The court noted that the insured’s conduct inflicted an obvious harm to their tenants. Even though the insured may have believed that they were legally entitled to inflict such harm, that was beside the point because the harm was obvious, substantially certain to occur, and intentional in the eyes of the law. The court concluded, "We know of no case from this or any other jurisdiction where a harm knowingly and purposely inflicted was held "accidental" merely because the person inflicting it erroneously believe himself entitled to do so."

Many of the self-defense cases contain language suggesting coverage at least potentially exists where an insured unreasonable responds to a perceived threat than what was reasonably necessary. What the cases seem to be saying is that if the insured acts unreasonable, i.e., negligently, there should be coverage for the resulting injury. The holdings of these cases, however, are called into question by the accident limitation. None of these scenarios involve an unexpected casualty that occurs between the time when the insured acts and when the plaintiff is injured.

Assume that an insured commits an act of perfect self-defense. The insured is sitting a bar minding his own business. Another patron gets into an argument with him. The insured says he does not want to fight, but the other patron is upset and physically attacks the insured. To protect himself from the attack, the insured hits the other patron in the face, injuring him.

In this scenario, these is no doubt that the insured intended to hit the other patron, although his motive (self-defense) was good. The insured purposefully hit the other patron in order to protect himself. This is not an accident because the insured performed a deliberate act, and there was no additional, unexpected, independent or unforeseen happening that produced the damage. The insured’s deliberate act itself caused the damage.

Now assume that after arguing with the insured, the other patron is reaching into his pocket to pay his tab. The insured believes that the other patron is reaching for a knife. The insured deliberately hits the other patron based on a mistaken belief that he is entitled to defend himself. The coverage analysis is the same as the analysis for perfect self-defense. There would be no accident under these circumstances. As discussed in Swain, a harm knowingly and purposefully inflicted is not accidental merely because the insured erroneously believed he was entitled to inflict that harm.

Liability insurers should closely examine the facts of each physical altercation case where the insured is alleging self-defense to determine whether there is a potential for the recovery of damages caused by an accident. If not, there would be grounds for declining a defense, or at least for not contributing to a settlement.

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Curtis L. Metzgar is an insurance defense attorney with the law firm of Crandall, Wade & Lowe, based in Rancho Cucamonga, Calif.