Metropolitan News-Enterprise


Wednesday, October 16, 2019


Page 1


Ninth Circuit:

Insured’s Voluntary Intoxication Did Not Render Battery Non-Willful, Covered by Policy


By a MetNews Staff Writer


Voluntary intoxication does not convert a battery into a negligent act, covered by a homeowner’s insurance policy, the Ninth U.S. Circuit Court of Appeals declared yesterday.

A memorandum opinion affirms a summary judgment granted by District Court Judge James Donato of the Northern District of California in favor of defendant State Farm General Insurance Company based on California Insurance Code §533 which provides:

“An insurer is not liable for a loss caused by the wilful act of the insured….”

Additionally, the policy excluded coverage “when the insured acts with specific intent to cause any harm.”

Dragged by Hair

The plaintiff, Carly Kogler, sued the insurer based on its refusal to pay a default judgment she obtained against its insured, Daniel Frank, who injured her by grabbing her hair and dragging her. Kogler sued as assignee of Frank and his parents of their cause of action under their policy.

She contended he was too drunk and high on LSD to have acted willfully.

Yesterday’s opinion notes that the California Supreme Court has not yet ruled on whether intoxication negates willfulness of an act, but says the Third District Court of Appeal’s 1995 decision in Jacobs v. Fire Insurance Exchange “is strongly persuasive.” In that case, an insurer denied a claim by the estate of an man who was fatally shot by the insured.

It was held there that “volitional incapacity, or an ‘irresistible impulse’ does not negate a ‘willful act’ under section 533 where the insured retains cognitive capacity.”

Necessary Implication

The Ninth Circuit opinion says that the court in Jacobs did not reach the issue of a specific intent to cause harm, but observed that the decision “necessarily implied that volitional capacity is not required for an act to be ‘willful’ under section 533, even where an insurer must prove specific intent to cause harm.” It adds:

“Because section 533 informs the meaning of the policy exclusion, volitional incapacity caused by voluntary intoxication does not negate an insured’s specific intent under California law.”

The case is Kogler v. State Farm General Insurance, 18-15298.


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