California Court Finds Duty to Defend is Broad Enough to Cover Rape Allegations

J.P. Gonzalez-Sirgo
Founder of J.P. Gonzalez-Sirgo, P.A.

The scope of the duty of an insurance company to defend against personal injury lawsuits is extremely broad.  The obligation of an insurer to provide a defense applies even in cases of intentional criminal acts, which might not require indemnification by the insurer.  A recent California appellate court decision ruled that this broad duty to defend extends to personal injury lawsuits alleging sexual misconduct and rape depending on policy language and the facts of the case.

In the case of Gonzalez v. Fire Insurance Exchange, Ms. Gonzalez attended a party in the insured’s home during which she alleged that she was the victim of sexual assault and rape by the insured and nine of his teammates.  The sexual assault victim claims she was given a high number of shots of hard alcohol during a fairly short period of time.  During her time at the party, Ms. Gonzalez was allegedly raped by several unidentified members of the team while she was unconscious.  She also alleged that the insured and several other participants in the rape prevented three attempts by others to remove her from the room where the rapes were occurring.  According to the rape victim, the insured failed to rescue her, and others took photos and cheered.

A lawsuit was filed by Ms. Gonzalez against the insured and several other assailants alleging rape, invasion of privacy, slander per se, unlawful intercourse (Gonzalez was 17 at the time of the attack), false imprisonment, sexual battery, negligence and other causes of action.  The lawsuit alleged that the insured “negligently” invited her to the party, failed to rescue her and served her alcohol.  The insurance company argued that the allegations of negligent conduct actually referred to “deliberate, intentional acts.”  The negligence claims were brought against the insured pursuant to a homeowner’s policy purchased by his father and an umbrella policy.

When the insured tendered the claims to the two insurers, both insurance companies refused to defend against the claims because the lawsuit did not allege an “accidental” loss caused by the insured.    The insurers claimed that both the homeowner’s policy and the umbrella policy provided a defense to lawsuits arising from a negligent act.  The policy did not cover the alleged conduct because it was excluded under the willful misconduct and sexual molestation exclusions.  The insured settled his civil lawsuit involving the sexual assault with the assault victim.  Under the terms of the settlement, the insured assigned all of his rights against the insurers’ under the policies.

Ms. Gonzalez sued the insurance companies for breach of the duty to defend and insurance bad faith.  The insurance companies prevailed in the trial court based on the rationale that the policy did not give rise to a duty to defend against intentional criminal acts.  The appellate court reversed summary judgment under the umbrella policy because it had broader language that extended to both accidental and intentional acts.  The broad language of the umbrella policy applied to “personal injuries” arising out of an “occurrence.”  Liability coverage under the umbrella policy extended to “damages” from an “occurrence” resulting in “personal injury.”

The appellate court also ruled the insurer had a duty to defend under the “well-established rule” that an insurer’s duty to defend is exceptionally broad and applies unless the insurer can prove there is no “potential” that the claim will fall within the policies indemnity coverage.

The court also relied on the shifting burden of establishing the applicability of an exclusion.  According to the court, the insured bears the initial burden of establishing a claim is covered, the duty to prove the relevance of an exclusion then falls on the insurer.  The insurer must prove “conclusively” that an exclusion bars recovery.  While the insurer can accomplish this by referring to extrinsic evidence, the undisputed facts must unequivocally refute any potential claim of liability.  Because the insurer failed to meet this high burden for denying the duty to defend, Ms. Gonzalez prevailed.

If you are struggling to get your homeowner’s insurance company to defend you against a personal injury claim or to provide indemnification against a potential judgment, you should seek legal advice.  The law may favor you as an insured in this situation, so there is no reason to give up your claim without a fight.

If you suffer a loss and need to pursue a Florida insurance claim, you might find it beneficial to speak with an experienced Miami insurance claims lawyer.  My law firm represents policyholders in claims disputes in Miami and throughout Florida. The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations. No Recovery, No Lawyer Fees. Call 305-461-1095or Toll Free 1-866-71-CLAIM. 

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