Unpublished Disposition, 931 F.2d 897 (9th Cir. 1986)

MEMORANDUM^** 

Wendy Snell and Stephen Snell appeal the summary judgment entered in favor of St. Paul Fire and Marine Insurance Co. in St. Paul's action seeking a declaratory judgment that it has no duty to defend or indemnify Thomas Scarinci or Cheryl Scarinci in the Snells' underlying action against the Scarincis and the Spiritual Outreach Ministries. We affirm.

Thomas Scarinci is president and pastor of Spiritual Outreach Ministries, a not-for-profit California corporation that sponsors bible study and family counseling. On December 1, 1986, the Snells brought a complaint against Scarinci and the Ministries, alleging repeated sexual misconduct. The complaint sought damages for Scarinci's alleged negligence in providing marital counseling, intentional and negligent infliction of emotional distress, battery and fraud. The Snells argue that the damages they incurred as a result of the sexual misconduct are covered under two office liability insurance policies issued by St. Paul to the Ministries.

The liability policies covered damages caused by an "event", and defined an event as "an accidental event that results in bodily injury or property damage the protected person didn't expect or intend to happen." The Snells argue that Scarinci's sexual conduct resulted from transference, a psychological phenomenon that can occur in the psychotherapist-patient relationship, and that the conduct therefore was accidental. We reject the argument. The record reflects that the conduct was intentional. See Merced Mut. Ins. Co. v. Mendez, 213 Cal. App. 3d 41, 50, 261 Cal. Rptr. 273, 280 (Cal.App.1989) (no accident where acts, manner in which they were done, and objective accomplished occurred exactly as defendant intended, and therefore no occurrence within meaning of policy). We recognize that the California Court of Appeals has held that the unintentional transmission of herpes virus to a sexual partner may be an unexpected, unforeseen act independent of intentional conduct. State Farm Fire & Casualty Co. v. Eddy, 218 Cal. App. 3d 958, 971-72, 267 Cal. Rptr. 379, 386 (1990). That holding does not apply to the activity and alleged injury in this case. Here, the injury arose from the intentional sexual activity, not a cause extrinsic to that activity. See Merced, 213 Cal. App. 3d at 50, 261 Cal. Rptr. at 279 (no accident when insured performs deliberate act unless additional independent happening occurs that produces the damage). Moreover, in Eddy, the evidence supported a finding that the defendant did not know he had herpes. Eddy, 218 Cal. App. 3d at 971, 267 Cal. Rptr. at 386. In this case, by contrast, the record shows only that Scarinci told Wendy Snell he was sterile. It does not demonstrate that Scarinci himself believed he was sterile and thus incapable of impregnating Ms. Snell.

The Snells argue that because their claim against Scarinci and the Ministries is based on Cal.Civ.Code Sec. 43.93, the St. Paul policies cover the loss. Section 43.93 provides that a patient may recover damages from a psychotherapist who engages in sexual contact during therapy sessions. We reject the argument. Section 43.93 provides a remedy for intentional conduct. The St. Paul liability policies cover damages caused by accidental events. The district court properly found that St. Paul had no duty to defend or indemnify Scarinci.

Since the conduct in question was outside the scope of coverage under the liability policies, we do not reach the Snells' arguments that Scarinci's activity was within the course and scope of his employment with the Ministries, and that the professional services exclusion did not apply to the loss.

AFFIRMED.