Thursday, March 5, 2015
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Sixth District Revives Sex Assault Victim’s Claim Against Insurer
Panel Says Umbrella Policy’s Language May Provide Coverage, in Politically Charged Case
By KENNETH OFGANG, Staff Writer
A woman who was sexually assaulted at a party attended by a number of college athletes may have a viable claim against an insurance carrier that declined to defend or provide coverage to one of a baseball player who was allegedly involved, the Sixth District Court of Appeal has ruled.
The court yesterday certified for publication its Feb. 5 opinion reinstating Jessica Gonzalez’s suit against Truck Insurance Exchange, which provided an umbrella policy to the family of Stephen Rebagliati, one of eight De Anza College players who were accused in the 2007 incident. The panel did, however, affirm summary judgment in favor of Fire Insurance Exchange, saying a homeowner’s policy issued by the company was more narrowly worded than the Truck policy and provided no possibility of coverage.
Political Cause Celebre
The decision is the latest of many turns in a case that became a political cause celebre. The decision of then-Santa Clara County District Attorney Dolores Carr not to file criminal charges in the case became an issue in the 2010 election that she lost to one of her deputies, Jeff Rosen, by less than one percent of the vote.
The plaintiff, Jessica Gonzalez, was 17 years old when she attended the party outside San Jose. Drunk after consuming several shots of liquor, she was attacked by an unknown number of assailants.
She was eventually taken to the hospital by three members of the college’s women’s soccer team, who claimed that the men in the small bedroom where the attack occurred blocked them from coming in earlier. Gonzalez claimed in her complaint that Rebagliati was among those in the room.
She sued Rebagliati; his grandfather, who owned the house; and seven other baseball players. One of them was Scott Righetti, a pitcher who was reported to be related to longtime San Francisco Giants pitching coach Dave Righetti.
According to news accounts of the case, insurers for Scott Righetti and for Rebagliati’s grandfather paid settlements totaling upwards of $500,000. Rebagliati and another player stipulated to judgments for more than $2 million each, with the plaintiff agreeing not to execute in exchange for an assignment of the defendants’ claims against their insurers.
Three defendants were dismissed from the case, and two were found not liable by a jury.
Gonzalez then sued Fire and Truck for bad faith based on their denial of coverage in Rebagliati’s case. The insurers had repeatedly cited policy exclusions as relieving them of any duty to defend or provide coverage.
Summary Judgment
Santa Clara Superior Court Judge Mark Pierce granted summary judgment to both defendants, based on their policy language.
The Fire policy said there was no coverage for injury “caused intentionally by or at the discretion of an insured” or resulting “from any occurrence caused by an intentional act of any insured where the results are reasonably foreseeable.”
The Truck policy, which listed the Fire policy in its schedule of underlying policies, said it would damages resulting from “an occurrence” as defined in the policy, including “an accident,” or “offenses” causing personal injury. The policy also contained exclusions for damages “intended from the standpoint of an insured” and for “molestation of abuse of any person by” any covered individual.
Justice Eugene Premo, writing yesterday for the Court of Appeal, agreed that there was no possibility of coverage under the Fire policy.
He cited Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, in which the court found no possibility of coverage for a sexual assault claim under a policy, worded identically to the Fire policy as to which Gonzalez was saying, issued to former Major League Baseball player and broadcaster Steve Lyons.
Lyons’ mistaken belief that the woman who sued him would welcome his sexual advances did not render his alleged sexual assault and false imprisonment of her an “accident” requiring his insurer to provide a defense to her claims, the court held.
As in Lyons, Premo wrote, the acts which form the basis of Gonzalez’s claim were intentional, not accidental.
Truck Policy
As to the Truck policy, however, the justice noted that there was no requirement that an incident resulting in personal injury be “accidental” to be covered. The insurer, he added, failed to carry its burden on summary judgment of showing that an exclusion certainly applied.
It was possible, for example, under the facts alleged, that Rebagliati did not engage in sexual assault, but engaged in other conduct that would have subjected him to liability, such as false imprisonment, or defamation following the assault, the justice said. If that were the case, the “sexual molestation” exclusion would not apply, Premo said.
Similarly, he wrote, because Rebagliati denied any wrongdoing, and because Truck’s papers in support of summary judgment contained no evidence to the contrary, it was arguable that neither the exclusion for “expected or intended” damages, nor the exclusion for “criminal acts,” applied.
The case is Gonzalez v. Fire Insurance Exchange, H038368.
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