Unpublished Disposition, 845 F.2d 329 (9th Cir. 1988)

No. 87-6148.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and REINHARDT, Circuit Judges, and M.D. CROCKER,^**  District Judge.

MEMORANDUM^* 

Julian Sena, Jr., makes a vigorous but futile argument that Allstate Insurance is obligated to defend him. The complaint against Sena alleges four different causes of action based on numerous acts of child molestation: assault and battery, violation of Section 288 of the California Penal Code, intentional infliction of emotional distress on the two children involved, and negligent infliction of emotional distress upon the children's parents. California Insurance Code Section 533 states: "An insurer is not liable for a loss by a willful act of the insured ..." The fact that the complaint contains a theory of liability that rests on conduct that is less than intentional is irrelevant. The intent of the California Legislature is clear: "that some acts are so extreme that public policy does not permit them to be insured." State Farm Fire & Cas. Co. v. Huie, 666 F. Supp. 1402 (N.D. Cal. 1987). "The focus should be on the act--which is what the legislature is trying to prevent--rather than on the theories of civil or criminal liability that might arise from the act. Id. Allstate is not obligated to defend Sena because the allegations of child molestation within the complaint are willful acts within the meaning of Section 533. See American State Ins. Co. v. Borbor by Borbor, 826 F.2d 888, 891 (9th Cir. 1987); Allstate Ins. Co. v. Kim W., 160 Cal. App. 3d 326, 206 Cal. Rptr. 609, 613 (1984).

Furthermore, both the first and second insurance policies exclude coverage for intentional acts. The first policy states: "We do not cover bodily injury or property damage intentionally caused by an insured person." The second policy states: "We do not cover bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person." Kim W., 206 Cal. Rptr. at 611, involved an exclusionary clause identical to the clause in Sena's first policy. The California Court of Appeal stated:

"In construing exclusionary clauses similar to that in this case, some courts have held that under certain circumstances the nature of the intentional act of the insured is such that intent to cause at least some harm can be inferred as a matter of law, and that as long as some harm is intended, it is immaterial that harm of a different magnitude resulted.... We conclude that an act which constitutes a violation of Penal Code Section 288 [prohibiting the sexual molestation of a child] is such an act."

Id. at 613 (citations omitted). We conclude that the allegations against Sena, however construed in terms of civil liability, involve an intent to inflict injury or cause harm. The allegations of child molestation, if true, were not accidents, but intentional acts. As such, they are not covered under either insurance policy, and Allstate is under no duty to defend. See also Huie, 666 F. Supp. at 1404-05 (actions of defendant in abduction of victim, driving her to remote location, presence during rape of victim by codefendant, and use of defendant's gun, involved intent to cause harm regardless of how actions were construed in terms of civil liability).

We find no merit in Sena's argument that specific intent to injure must be proved before Allstate's obligation to defend is extinguished. "An insurer's duty to defend must be analyzed and determined on the basis of any potential liability arising from facts available to the insurer from the complaint or other sources available to it at the time of the tender of defense.... Unlike the duty to indemnify, which is only determined after liability is finally established, the duty to defend must be assessed at the outset of the case." CNA Cas. of California v. Seabord Sur. Co., 176 Cal. App. 3d 598, 222 Cal. Rptr. 276, 278-79 (Cal.App. 1 Dist.1986). Based on the allegations of child molestation in the complaint and other available facts, Allstate is under no obligation to defend Sena.

Allstate Ins. Co. v. Overton, 160 Cal. App. 3d 843, 206 Cal. Rptr. 823 (1984), upon which Sena relies, is not to the contrary. In Overton, the defendant was sued for assault and battery. The court held that although there may have been a general intent to commit the act, where the defendant testified that he had no intent to cause harm, and where there was no evidence to the contrary, the duty to defend was not extinguished. Id. at 828-29. In an assault and battery case, it is quite possible that evidence at trial may demonstrate self defense or simple negligence as opposed to an intentional act. No such possibilities exist where child molestation is alleged. Here, the intent to cause harm is supplied by the law, see Borbor, 826 F.2d at 891; Kim W., 206 Cal. Rptr. at 613, as well as by the inherent nature of the acts.

AFFIRMED.