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Court of Appeal of California, Fifth Appellate District
August 11, 1989
[*44] [**275] This is an appeal from the entry of summary judgment in favor of respondent Merced Mutual Insurance Company. The trial court determined respondent had no duty to defend or indemnify Mendez for damages caused by engaging in acts of oral copulation and attempted oral copulation allegedly against Ms. Peery's will. We shall affirm.
On October 16, 1985, Helen and Claude Peery filed a complaint against Bobby Mendez and the County of Merced, claiming Mendez had sexually assaulted Ms. Peery several times at their mutual place of employment. The complaint alleged causes of action for both intentional and negligent assault and battery. The complaint further alleged causes of action for both intentional and negligent infliction of emotional distress [***2] stemming from the incidents.
Depositions of both Mendez and Peery, submitted with the motion for summary judgment, reveal radically divergent versions of the events. Mendez's version portrays a consensual sexual encounter between the parties. Peery's recital of events reveals a brutal physical attack culminating in forced oral copulation and three attempts by Mendez to repeat the act.
At the time the acts occurred and at the time the Peery complaint was filed, Mendez was covered under a homeowners policy issued by respondent. With respect to personal liability, the policy provides in relevant part: "If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will: [para.] 1. pay up to our limit of liability for the damages for which the insured is legally liable; and [para.] 2. provide a defense at our expense by counsel of our choice, even if the allegations are groundless, false or fraudulent." The policy defines "occurrence" as "an accident, including exposure to conditions, which results, during the policy period, in: [para.] a. bodily injury; or [para. [***3] ] b. property damage." The policy then excludes coverage for: "bodily injury or property damage: [para.] a. which is expected or intended by the insured."
Mendez tendered his defense to respondent. Respondent filed an action for a declaratory judgment that it had no obligation [**276] to indemnify or defend Mendez in the action brought by the Peerys. Respondent argued Mendez's acts were intentional and thus not within the general coverage provisions of the homeowners policy. Alternatively, respondent argued the conduct complained [*45] of was excluded under policy provisions and Insurance Code section 533. 1
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213 Cal. App. 3d 41 *; 261 Cal. Rptr. 273 **; 1989 Cal. App. LEXIS 832 ***
MERCED MUTUAL INSURANCE COMPANY, Plaintiff and Respondent, v. BOBBY MENDEZ et al., Defendants and Appellants
Prior History: [***1] Superior Court of Merced County, No. 84444, George C. Barrett, Judge.
Disposition: The judgment is affirmed. Costs to respondent.
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Insurance Law, Commercial General Liability Insurance, Exclusions, Intentional Acts, Civil Procedure, Appeals, Standards of Review, De Novo Review, Remedies, Declaratory Judgments, General Overview, Summary Judgment, Entitlement as Matter of Law, Claim, Contract & Practice Issues, Policy Interpretation, State Declaratory Judgments, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Business Insurance, Evidence, Inferences & Presumptions, Contracts Law, Defenses, Ambiguities & Mistakes, Reasonable Expectations, Ambiguous Terms, Construction Against Insurers, Plain Language, Coverage, Accidental Injuries, Fortuity Doctrine, Occurrences, Ordinary & Usual Meanings, Unambiguous Terms