LOWELL v. MARYLAND CASUALTY COMPANY

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District Court of Appeal, Second District, Division 3, California.

George LOWELL, Plaintiff and Appellant, v. MARYLAND CASUALTY COMPANY, Defendant and Respondent.

Civ. 28522

Decided: June 10, 1966

Munger, Tolles, Hills & Olson, by Lester E. Olson, Los Angeles, for appellant. Chase, Rotchford, Downen & Drukker, by Ronald A. Dwyer, Los Angeles, for respondent.

Plaintiff is the insured a comprehensive liability policy issued by the defendant Maryland Casualty Company (hereinafter Maryland).

The contract of insurance contains the following language pertinent to the issues presented on this appeal:

‘INSURING AGREEMENTS

‘I. Coverage A—Bodily Injury Liability

‘To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident. * * *

‘II. Defense, Settlement, Supplementary Payments

‘With respect to such insurance as is afforded by this policy, the company shall:

‘(a) Defend any suit against the insured alleging such injury, sickness, disease or destruction, and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * *

‘CONDITIONS

‘3. Definitions.

‘(h) Assault and Battery.—Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.’

While the above contract of insurance was in full force and effect and on September 25, 1959, an action was filed in the Superior Court of Los Angeles County No. 731219, by one Ronot Gonzales, plaintiff therein against George Lowell, the insured and plaintiff here, wherein it was charged in paragraph II of the complaint, ‘That on or about the 7th day of September, 1959, at or about the hour of 2:55 P.M., defendant, George Lowell, also known as George Levey, at the premises located at the McCarty Apartments, 148–154 South McCarty Drive, Beverly Hills, California, did unlawfully and maliciously assault, beat, strike and batter plaintiff, Ronot Gonzales about the back, arms, head and body with great force and violence and without cause or provocation.’

The prayer of the complaint in this action sought general damages in the sum of $50,000, exemplary and punitive damages in the sum of $50,000 and special damages.

Service of the summons and complaint in the Gonzales action was made on Lowell on September 29, 1959, whereupon Lowell made written demand upon Maryland to defend said action in his behalf, claiming that the alleged assault and battery had never taken place and that the suit was groundless. Upon receiving the written demand, Maryland refused to defend Lowell, giving as its reason therefor that the allegations contained in the complaint filed by Gonzales did not set forth facts which were within the coverage of the policy and therefore, under paragraph II of the Insuring Agreements, Maryland had no duty to defend.

On March 6, 1962, after a trial, judgment was entered in the Gonzales action in favor of Lowell and against Gonzales. Thereupon Lowell made demand upon Maryland to pay the reasonable value of the attorneys fees incurred by him as well as the costs incurred in the defense of said action, which demand was rejected by Maryland.

The present action was brought to enforce Lowell's claim against Maryland for reimbursement for the above expenditures in the sum of $7,000.19, for attorneys fees and costs of suit to be determined upon the trial of the action and for exemplary damages in the sum of $25,000.

After trial, the court rendered its judgment in favor of Maryland and against Lowell. The appeal is from this judgment.

The trial court found, amongst other things, that:

‘VII. Under the terms of said policy No. 31108558, Maryland expressly excluded coverage under Paragraph 3, subparagraph (h) of CONDITIONS, for bodily injury, or damage arising out of an assault and battery committed by Lowell or at his direction.

‘VIII. Under the terms of said policy No. 31108558, Maryland expressly agreed under Paragraph II of INSURING AGREEMENTS to defend any suit against assured alleging such injury, sickness, disease or destruction and seeking damages on account thereof with respect to such insurance as is afforded by this policy even if such suit is groundless, false or fraudulent.

‘IX. That none of the allegations contained in the complaint filed by Gonzales against Lowell alleged facts within the coverage of the policy.’

The complaint in the Gonzales action charges Lowell with battery as that term is defined in section 242 of the Penal Code.1 Battery contemplates both the wilful and unlawful use of force or violence upon the person of another. It is clear, under the contract of insurance before us, that coverage of Lowell for injury or damages arising out of an assault and battery committed by him, was excluded. Such specific exclusion is in accordance with the policy to the law of this State as expressed in section 533 of the Insurance Code.2 and section 1668 of the Civil Code.3 Abbott v. Western Nat. Indem. Co., 165 Cal.App.2d 302, 305, 331 P.2d 997.

‘The general rule is that the obligation to defend is measured by comparing the terms of the insurance policy with the pleadings of the claimants who sue the insured. [Citations.] The obligation to defend is measured by the terms of the policy applied to the allegations of the complaint, whether they be true or false. [Citations.]’ Maxon v. security Ins. Co., 214 Cal.App.2d 603, 616–617, 29 Cal.Rptr. 586, 593.

Where the defense clause of an insurance policy required the insurer to defend the insured in any action alleging an injury under the policy even if such action is groundless, false or fraudulent, it has been said:

‘Under such a clause it is the duty of the insurer to defend the insured when sued in any action where the facts alleged in the complaint support a recovery for an ‘occurrence’ covered by the policy, regardless of the fact that the insurer has knowledge that the injury is not in fact covered. [Citations.] But it is equally true that the insurer is not required to defend an action against the insured when the complaint in that action shows on its face that the injury complained of is not only not covered by, but is excluded from, the policy.' Remmer v. Glens Falls Indem. Co., 140 Cal.App.2d 84, 90, 295 P.2d 19, 22, 57 A.L.R.2d 1379.

In the case at bench it is clear from the face of the complaint in the Gonzales action that Lowell was charged with having committed an intentional tort upon and against Gonzales. This is the kind of conduct against which one cannot insure (Ins.Code § 533) for to do so would be contrary to public policy. (Civ.Code § 1668.) Liability for damages caused by Lowell's conduct, as charged in the Gonzales action, was not only expressly deleted from coverage under the provisions of the contract of insurance but such liability is uninsurable under the provisions of the law.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  ‘A battery is any willful and unlawful use of force or violence upon the person of another.’

2.  ‘An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured's agents or others.’

3.  ‘All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.’

FRAMPTON, Justice pro tem.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

SHINN, P. J., and FORD, J., concur.