Opinion
Review Granted May 27, 1992.
Previously published at 3 Cal.App.4th 519, 9 Cal.App.4th 780 Kinkle, Rodiger & Spriggs and James W. Parker, Santa Ana, for defendants and appellants.
Kegel, Tobin, Hamrick & Truce and Charles H. Carpenter, Los Angeles, for plaintiff and respondent.
OPINION
SONENSHINE, Associate Justice.
A junior high school music teacher sexually molested one of his students. The student and her parents sued the teacher. Horace Mann Insurance Company (hereinafter Mann) filed this lawsuit to determine whether it was obligated to defend the teacher in the student's lawsuit. The superior court said no, and the student and her parents now appeal.
Because our Supreme Court, in J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 278 Cal.Rptr. 64, 804 P.2d 689, effectively precluded insurance coverage for child molestation, the complaint alleged nonsexual misconduct on the teacher's part. Upon examination, we find that the so-called nonsexual conduct falls into one of two categories:
(1) It is really sexual misconduct, i.e., it is "parasexual" conduct--conduct so intimately connected with the sexual misconduct that it could not reasonably be construed as anything else; or
(2) It is so innocuous, taken by itself, that it could not possibly give rise to any damages as required by the insurance policy.
Accordingly, there being no possibility of any covered damages under the policy, we affirm.
BACKGROUND
From approximately September of 1986 through June of 1987, Gary Lawrence Lee, a teacher at Kraemer Junior High School, engaged in sexual acts with a 13-year-old student. In October of 1987, a seven-count felony complaint was filed against Lee. In January of 1988, Lee pleaded nolo contendere to count one (lewd and lascivious conduct with a minor under the age of 14 years). (Pen.Code, § 288, subd. (a).)
Lee's guilty plea states: "Between Sept. 1986 and March 30, 1987 in Orange County, I touched the vaginal area of [the student] (who was 13 yrs. old) with the intent of arousing my sexual desires."
The dissent asserts there are triable issues of fact as to whether the teacher's conduct here occurred in the course of his "educational employment activities." Not so. The dissent forgets that this case is about the interpretation of an insurance policy. Words in an insurance policy must be interpreted according to the plain meaning a layperson would attach to them. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807, 180 Cal.Rptr. 628, 640 P.2d 764.) No layperson would consider fondling, taunting, teasing and embarrassing a student to be within the meaning of "educational employment activities," particularly when these actions presage the sexual molestation of that student.
Outside the record we review is word of a settlement in the underlying action. I ignore that for present purposes and examine the matter as it appeared when summary judgment was granted.
The student and her parents sued, naming various defendants, including Lee and Placentia Unified School District. In October
The complaint alleged causes of action for personal injury, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and assault and battery.
The J.C. Penney decision makes it clear, insofar as Insurance Code section 533 is concerned, that there is no room for an attempt to establish that a teacher's sexual molestation was the result of negligence, as opposed to intentional conduct: "There is no such thing as negligent or even reckless sexual molestation. The very essence of child molestation is the gratification of sexual desire. The act is the harm. There cannot be one without the other. Thus, the intent to molest is, by itself, the same as the intent to harm." (Id. at p. 1021, 278 Cal.Rptr. 64, 804 P.2d 689.)
"1. Giving tardy notes to [the student] based upon solely [sic ] her request for a tardy note;
"2. Pulling her out of class for the entire class;
"3. Allowing [the student] to sit on his lap in front of other students;
"4. Kissing [the student] on the forehead in front of other students;
"5. Hugging [the student] in front of other students;
"6. Putting his arm around [the student] in front of other students;
"7. Allowing [the student] to be in the band room alone;
"8. Allowing [the student] to be in the band room alone with himself and [another person];
"9. Allowing [the student] to be in the band room alone with [another person] and himself;
"10. Regularly making sexual and sarcastic jokes in regard to [the student], or impliedly relating to [the student], in front of the band class, referencing the way a girl dressed, and in making jokes offensive to females. General discussions of sexual conduct in front of the class;
"11. Gary Lee's being alone in his windowed office with [the student];
"12. The allowing and perpetuating of common rumors among students of a relationship between Gary and [the student] as a joke. 'O, Mr. Lee took [the student] home last Friday.'
"13. [The student] was considered a teacher's pet of Gary Lee in seventh grade;
"14. Gary Lee had a flirtatious behavior towards [the student];
"15. The dollar dance, and insinuation that [the student] could be bought for a dollar;
"16. Joking about the girls coming back and seeing him when they are 18;
"17. Gary Lee's joking about his female students in front of his friends;
"18. Referring to [the student] as Pebbles;
"19. Gary Lee had a childish behavior;
"20. Gary Lee was perverted and immature;
"21. Gary Lee referred to [the student] as 'jail bait,' or 'San Quentin jail bait' in front of students, his friends, band parents and student teachers;
"22. Gary Lee had discussions with [the student's] teachers about [the student] being with him and to assume that she was with him at all times that she was late or absent from their classes;
"23. [The student] was teased by students in front of adults as being Gary Lee's girlfriend, which was also laughed at by the students, adults, and Gary Lee;
"24. Attempts on the part of Gary Lee to get [the student] alone;
"25. Threats by Gary Lee that he would harm himself."
THE POLICY
The insuring clause in the Educator's Employment Liability Policy, section III(A), reads: "EDUCATORS LIABILITY. The Company agrees to pay all damages which the insured shall become legally obligated to pay as a result of any claim arising out of an occurrence in the course of the insured's educational employment activities, and caused by any acts or omissions of the insured...."
Section II(H) of the policy defines an occurrence as "an event which results in damages to someone other than the insured." The policy excludes coverage of civil suits arising from criminal acts other than corporal punishment. Section VII(B) reads: "CIVIL SUITS ARISING FROM CRIMINAL ACTS. Section III(A) of this policy does not apply to any civil suit arising out of an act, other than corporal punishment, which has been held by a court to constitute a crime."
DISCUSSION
There is no serious contest about coverage for any damages arising out of Lee's actual sexual molestation of the student. The policy specially addresses this issue (§ VII(B)) and further provides that no coverage exists for claims which arise from an occurrence outside the course of the insured's educational activities (§ III(A)). Moreover, the Supreme Court in J.C. Penney Casualty Ins. Co. v. M.K., supra, 52 Cal.3d at p. 1019, 278 Cal.Rptr. 64, 804 P.2d 689, concluded "there is no coverage [for sexual molestation] as a matter of law."
As the Supreme Court explained in J.C. Penney, "Insurance Code section 533 provides that an insurer is not liable for a 'wilful act of the insured.' Section 533 is 'an implied exclusionary clause which by statute is to be read into all insurance policies.' " (Id. 52 Cal.3d at p. 1019, 278 Cal.Rptr. 64, 804 P.2d 689, fn. omitted.) "The very essence of child molestation is the gratification of sexual desire. The act is the harm. There cannot be one without the other. Thus, the intent to molest is, by itself, the same as the intent to harm." (Id. at p. 1021, 278 Cal.Rptr. 64, 804 P.2d 689.)
It is bizarre to test the propriety of the summary judgment by reference to an attorney's letter. How could it have evidentiary value? This is the playing field the majority chooses, however; and I am forced to join the game. The benign explanation that the letter was considered "in an abundance of caution" (maj. opn., p. 356, fn. 9) is laughable. It is the very material used to bar the courtroom door. The complaint says the insured negligently committed both sexual and nonsexual acts that caused harm. That is the allegation the insurer had to deal with on its motion for summary judgment; an unsworn letter from adverse counsel at an early stage in the litigation was useless to that end, in my view, even in the absence of a hearsay objection.
The so-called nonsexual conduct presents a closer question. However, as previously indicated, such conduct falls into two categories, each with its own separate reasons precluding coverage.
SEXUAL CONDUCT MISCATEGORIZED AS NONSEXUAL CONDUCT
Some of the other allegations, although labeled nonsexual, are: Having the student sit on his lap, kissing her on her forehead, hugging her, and putting his arm around her. These clearly comprise sexual conduct in the context of this case. We agree, of course, that such actions in other contexts may not necessarily be sexual. Here, however, given Lee's ongoing sexual relationship with the student, they are inextricably linked to that relationship.
An insurer must defend only when it "ascertains facts which give rise to the potential of liability under the policy." (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 276-277, 54 Cal.Rptr. 104, 419 P.2d 168.) If the total facts an insurer learns from all sources show there is no potential coverage, then an insurer need not defend even if the bare facts stated in the complaint allow for such a potential. (State Farm Mut. Auto. Ins. Co. v. Flynt (1971) 17 Cal.App.3d 538, 548, 95 Cal.Rptr. 296.)
In Flynt, the injured third party was a passenger in a stolen car driven by the insured's 16-year-old stepson. The policy did not afford coverage for accidents in stolen cars, i.e., cars which were not being used with the permission of the owner. (Id. at p. 543, 95 Cal.Rptr. 296.) The complaint did not, however, mention that the car in which the accident occurred had been stolen.
John R. v. Oakland Unified School Dist., supra, 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948 does not support the majority's merger theory. It appears only sex acts were pleaded against the schoolteacher in that case.
Here, there is no dispute Lee engaged in multiple sexual acts with the student. In such a context, the sitting on the lap, the
Lee's sexual conduct with the student, according to the brief filed by the student and her parents, included multiple acts of kissing, petting, fondling, skin-to-skin body contact, vaginal entry by Lee with his fingers, and masturbation.
My colleagues' contrary view, if allowed to stand, will make educator insurance policies virtually worthless; for the scope of liability coverage they envision approaches the vanishing point. Both misuse John R. v. Oakland Unified School Dist., supra, 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948 for the proposition that the nonsexual torts alleged did not arise in the course of education. There, the question was the liability of a school district for the criminal child molestation of a pupil by a teacher at his home. The Supreme Court thought it a close question (John R., supra, at p. 447, 256 Cal.Rptr. 766, 769 P.2d 948), but ultimately decided for the district. Our problem involves the duty of an insurance carrier to defend a teacher accused of various relatively minor torts committed against a pupil on campus and during class. The comparison is apples to erasers.
GENUINELY NONSEXUAL CONDUCT WHICH CANNOT POSSIBLY GIVE RISE TO ANY DAMAGES
Typically, liability insurance policies promise a defense even when the suit against the insured is "groundless, false or fraudulent." (See, e.g., Gray v. Zurich Insurance Co., supra, 65 Cal.2d at p. 273, 54 Cal.Rptr. 104, 419 P.2d 168.) As stated in Gray, "the carrier must defend a suit which potentially seeks damages within the coverage of the policy...." (Id. at p. 275, 54 Cal.Rptr. 104, 419 P.2d 168.) But that duty is not without its limits.
In Garriott Crop Dusting Co. v. Superior Court (1990) 221 Cal.App.3d 783, 796-797, 270 Cal.Rptr. 678, the underlying complaint stated potential recoveries which were time barred on their face. The defendant only needed to assert the statute of limitations by way of demurrer or summary judgment motion and the potential would be eliminated. Nevertheless, the insurer was still obligated to defend because the statute of limitations had not yet disposed of the underlying suit. (Id. at p. 797, 270 Cal.Rptr. 678.)
On the other hand, Garriott tacitly acknowledged that if the statute of limitations had already been applied conclusively to bar potentially covered recoveries, that would have relieved the insurer of the duty to defend. (Ibid.)
Gray provides additional insight. There, a doctor was driving when another vehicle narrowly missed colliding with him. Jones, the driver of the other car, got out, walked over to the doctor's car in a menacing manner, and jerked open the door. The doctor, fearing harm to himself, rose from his seat and struck first. Jones sued the doctor alleging only one cause of action for assault. The doctor requested his personal liability insurer to defend the suit; it refused, claiming the complaint alleged an intentional tort which fell outside the coverage of the policy. (Gray v. Zurich Insurance Co., supra, 65 Cal.2d at pp. 266-267, and p. 267, fn. 1, 54 Cal.Rptr. 104, 419 P.2d 168.)
After the doctor failed to prevail, he sued his insurance company for breaching its duty to defend. One of the insurer's arguments was that the complaint in the underlying case failed to state a cause of action for which it would be required to indemnify the insured. (Id. at p. 275, 54 Cal.Rptr. 104, 419 P.2d 168.) After all, it reasoned, the only stated cause of action was for an intentional tort.
The court rejected this contention, noting a third party's "pleadings are malleable, changeable and amendable." (Id. at p. 276, 54 Cal.Rptr. 104, 419 P.2d 168.) The court candidly pointed out that third parties often take facts which may only state a cause of action for nonintentional conduct, and draft the complaint to allege intentional conduct. (Id. at pp. 276-277, 54 Cal.Rptr. 104, 419 P.2d 168.) Given the "plasticity of modern pleading," the court was loath to Thus, Jones' complaint, while it only stated a cause of action for assault, still presented the "possibility that he might obtain damages that were covered by the indemnity provisions of the policy." (Id. at p. 277, 54 Cal.Rptr. 104, 419 P.2d 168.) A simple amendment might have alleged that the doctor negligently (rather than intentionally) exceeded the reasonable grounds of self-defense. (Ibid.) The insurer should therefore have defended the case because there were "facts which [gave] rise to the potential of liability." (Id. at pp. 276-277, 54 Cal.Rptr. 104, 419 P.2d 168.)
The key insight of the Gray analysis is the plasticity of the third party's pleadings in terms of formal causes of action. The same facts give rise to the possibility of liability for both intentional and nonintentional torts. Just because the third party plaintiff only stated a cause of action for an intentional tort does not mean the same facts could not also support a cause of action for a nonintentional tort.
And there is another side to this coin. If facts stated in the complaint or otherwise brought to the attention of the insurer will not support any damages within the scope of the policy, there is no potential for coverage and therefore no duty to defend. Otherwise, contrary to the basic reasoning of Gray, the duty to defend would be entirely in the hands of the third party.
Of course, a third party claimant can still create coverage by inventing facts which would give rise to damages which would be covered by the policy, though any such temptation is checked by the prospect of future suits for malicious prosecution and abuse of process.
The rule to be distilled here is that the duty to defend depends not on the viability of a cause of action per se, but rather on whether there are facts which could possibly give rise to covered damages. Absent such facts, there is no duty to defend.
The dissent accuses us of not looking to the complaint but to the letter from minor's lawyer. We look to the letter in an abundance of caution because there are no facts in the complaint suggesting damages from nonsexual conduct, just conclusory allegations. To be specific, the complaint alleges that Lee both "negligently ... and wantonly engaged in sexual and nonsexual acts with the minor plaintiff...." Does not every teacher engage in nonsexual acts with his or her students? And what are the damages? The dissent acknowledges there is no duty to defend for any damages arising out of the sex act itself, but asserts there is a potential for covered damages for the foreplay and the set up of the seduction. This reasoning misses the point. There is no duty to defend for these acts because they either fit within the sexual mosaic or do not constitute educational activities. Moreover, to the extent that some of the acts complained of may not be sexual, they are meaningless.
The dissent errs when it suggests that there can be a duty to defend without at least some possibility of covered damages. (See, e.g., United Pacific Ins. Co. v. Hall (1988) 199 Cal.App.3d 551, 556, 245 Cal.Rptr. 99 ["The obligation to defend, which is co-extensive with coverage under the policy, is plainly limited to actions seeking damages."]; Insurance Co. of the West v. Haralambos Beverage Co. (1987) 195 Cal.App.3d 1308, 1322, 241 Cal.Rptr. 427 ["As there is no potential liability under the insurance policy, we find ICW owes no obligation to defend...."]; Jaffe v. Cranford Ins. Co. (1985) 168 Cal.App.3d 930, 934, 214 Cal.Rptr. 567 ["where there is no potential for coverage, there is no duty to defend"].)
Here, none of the genuinely nonsexual acts committed by Lee could possibly give rise to any damages. These acts represent a virtual litany of innocuousness. A music teacher gives a student tardy notes. He sees a student alone in his office. He sees a student alone or with another person in the band room. He is childish. He is immature. He tells other teachers to assume that when the student is absent, she is with him.
To the degree such acts are nonsexual, they are so harmless that as a matter of law they could not possibly give rise to any damages for which the insured would need to be indemnified. Indeed, taken alone, these acts are legally meaningless. And, to the degree they take on meaning as being part of a sinister pattern of pedophilia, they constitute sexual conduct.
The judgment is affirmed. Respondent to receive costs on appeal. SILLS, P.J., concurs.
CROSBY, J., dissents.
SILLS, Presiding Justice, concurring.
I heartily concur with my colleague Sonenshine that a teacher should not be rewarded with insurance coverage for a wholly unprofessional course of conduct arising out of his sexual molestation of a student. As Justice Benke pointed out in Horace Mann Ins. Co. v. Analisa N. (1989) 214 Cal.App.3d 850, 856, 263 Cal.Rptr. 61, making an educational insurer (and ultimately the school district) pay for a teacher's pedophilia would only increase the cost and decrease the availability of insurance for those teachers who engage in legitimate extracurricular activities.
I cannot agree with my colleague Crosby that fondling, taunting, teasing and embarrassing a student with sexual references even might be part of a teacher's legitimate educational activities. To my mind, such acts never have a place in the classroom, and particularly in this case, where those acts are inextricably intertwined with a teacher's deviate sexual behavior. 1 This case can be compared to that of an arsonist who seeks liability insurance coverage after being sued for deliberately burning down someone else's house. The dissent would concede there is no coverage for actually setting the fire, but thinks there is a duty to defend based on the various acts preparatory and incidental to the arson, such as breaking in and pouring gasoline on the floor. The dissent appears to believe that, isolated and taken out of context, such acts are not necessarily intentional.
But acts should not be parsed out so finely that it is impossible to see them for what they really are. Taken in context, most of the acts in this case are ancillary to the actual sexual misconduct. Just as the act of pouring gasoline is part of an arson, so are the hugging, kissing, flirting, joking and special favors here part of the molestation.
The balance of the acts are of negligible legal significance, on the order of the "dirty look" tort. Apart from the molestation they have no meaning. Even in today's hyperlitigious society students still do not sue their teachers for being "childish," "immature" or being alone with them. To paraphrase Gertrude Stein, when we examine the legal consequences of these acts apart from the molestation, we find there is no there there.
I write separately to emphasize that even if one does not accept our conclusion that acts ancillary to child molestation are sufficiently "sexual" or "parasexual" to come within J.C. Penney, such acts nevertheless do not give rise to even the possibility of insurance coverage because they are not "educational employment activities" within the meaning of the policy. This point is made in footnote 7 of the majority opinion, but bears further amplification.
The only case directly in point is Horace Mann Ins. Co. v. Analisa N., supra, 214 Cal.App.3d 850, 263 Cal.Rptr. 61. In Analisa N. the court held that sex acts performed at school and shortly after school hours were not educational employment activities and therefore there was no duty to defend. Analisa N. did not directly discuss the nonsexual acts which no doubt led up to the abuse, though it did note that prior to the molestations the victim student had confided to the insured about family problems. (Id. at p. 852, 263 Cal.Rptr. 61.) The reasonable implication, however, is that those associated nonsexual activities were links in the chain of intimacy that culminated in the sexual molestation.
Analisa N. relied on John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, As part of this seduction, the teacher threatened to give the student failing grades if he would not go along with the teacher's desires, and also threatened to tell people the student had solicited sex from him. (Ibid.) When the incident was discovered, the student's parents brought suit against the school district, alleging it was vicariously liable for the teacher's acts. (Id. at pp. 442-443, 256 Cal.Rptr. 766, 769 P.2d 948.) This issue eventually reached our Supreme Court, which held the school district was not vicariously liable for the teacher's sexual assault. (Id. at p. 447, 256 Cal.Rptr. 766, 769 P.2d 948.)
The reasonable inference from John R. is that the teacher's acts were not "educational" even though they took place under an officially sanctioned school program. On this point there is no meaningful difference with this case. Teacher-student sex is not a legitimate educational activity, nor is a teacher's sexual harassment of a student, even if that harassment takes place at school.
CROSBY, Associate Justice, dissenting.
The summary judgment my colleagues affirm today decrees that Horace Mann Insurance Company is not obliged to defend or indemnify its insured, Gary Lawrence Lee, in the underlying tort action of minor Barbara B. and her parents. The majority errs on both points. There is, without doubt, a triable issue of fact as to whether the insurer has a duty to defend Lee. And, with the tort litigation unfocused and unresolved, it was far too early to preclude indemnification as a matter of law. 1
I
Based on Barbara's allegations and her former teacher's admissions, a tort action for sexual battery would probably be successful--and garner a sizable judgment as well. But prevailing on that theory alone would limit the source of recovery to defendant's personal assets: A liability insurer is not responsible for payment of a judgment based on a teacher's sexual molestation of a student. (J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 278 Cal.Rptr. 64, 804 P.2d 689.) 2
For this reason plaintiffs also sued for other, relatively benign, tortious acts. They might not be worth much in monetary terms, but they are clearly outside the very narrow holding in J.C. Penney. 3 Consequently, When summary judgment was granted, the tort action had not yet been resolved; consequently, no one was in a position to say what facts would be established and what theories of liability, if any, might carry the day for plaintiffs. The significance of this point cannot be overstated. The opinions my colleagues rely upon (J.C. Penney Casualty Ins. Co. v. M.K., supra, 52 Cal.3d 1009, 278 Cal.Rptr. 64, 804 P.2d 689; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948; Horace Mann Ins. Co. v. Analisa N. (1989) 214 Cal.App.3d 850, 263 Cal.Rptr. 61) all concluded there was no duty of indemnification after judgments had been rendered in the underlying tort actions.
And in those cases, the only conduct alleged and proved was indisputably sexual. Not so here. What we do know of the lawsuit is detailed in the majority opinion (see pp. 352-353). Although the complaint contains only general allegations of wrongdoing, Barbara's attorney provided adverse counsel with a letter identifying no fewer than 25 instances of misconduct that he intended to prove to establish liability. 4 A perusal of them reveals the second significant fact that distinguishes this case from J.C. Penney, John R., 5 and Analisa N.: Lee's actions, to the extent they were "parasexual" (to use the majority's jargon), occurred at school, during classes or supervised on-campus activities, and in front of students and teachers. In short, there are triable issues of fact as to whether his conduct occurred (to use Horace Mann's jargon) "in the course of the insured's educational employment activities." 6
This is not a description of a frivolous lawsuit. Lee allegedly fondled, taunted, In short, the allegations are not just of child molestation and cannot be dismissed as trivial. Whether they will justify an award of damages is not for us to say; that is the role of the trier of fact in the tort case. Yet it is a task the majority has usurped in reviewing the propriety of a summary judgment in an insurance company's declaratory relief action. My colleagues' speculation as to the merits of the underlying tort action is bad enough; but they have done more, going so far as to determine as a matter of law that the insurer will not be required to indemnify Lee no matter what the evidence might ultimately reveal. 7
II
Next, although my colleagues pay lip service to the broad duty to defend, as mandated by Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168, they dismiss any such obligation in this case. Their rationale, brief as it is, is staggering: Absent any "facts which could possibly give rise to covered damages ... there is no duty to defend." (Maj. opn. at p. 356.) The only authority cited for this notion is Garriott Crop Dusting Co. v. Superior Court (1990) 221 Cal.App.3d 783, 270 Cal.Rptr. 678, and it says no such thing.
The issue in Garriott was whether an insurer had a duty to defend an action where the statute of limitations was asserted as an affirmative defense. The court concluded it did and observed, "Only after the trial court ... resolves [the statute of limitations] defense[ ] in the [insured's] favor can [the insurer] step away from its contractually imposed obligation 'to defend any suit against the [i]nsured seeking damages on account of such ... property damage, even if any of the allegations of the suit are groundless....' " (Id. at p. 796, 270 Cal.Rptr. 678.) I agree wholeheartedly with this statement, but fail to see how it supports my colleagues' position. The underlying action has not been dismissed on any basis yet; so even if the allegations against Lee are groundless (a doubtful proposition to be sure in light of the criminal disposition), Horace Mann still has a duty to provide him with a defense. By the majority's logic, an automobile insurer can refuse to defend on the ground that the suing plaintiff's injuries are illusory; but that equation will not compute.
In my view, the correct rule was reiterated in Republic Indemnity Co. v. Superior Court (1990) 224 Cal.App.3d 492, 273 Cal.Rptr. 331: "[Insurance Code] section 533 precludes only indemnification of wilful conduct and not the defense of an action in which such conduct is alleged. (Gray v. Zurich Insurance Co. [supra] 65 Cal.2d 263, 277 [54 Cal.Rptr. 104, 419 P.2d 168] [Section 533 'forbid[s] only contracts which indemnify for "loss" ... resulting from wilful wrongdoing. Here we deal with a contract which provides for legal defense against an action charging such conduct....' (Italics in original.) ]; Ohio How can it be said that there is no triable issue of fact as to Horace Mann's duty to defend? One of my colleagues says the nonsexual conduct described in the attorney's letter merges with sexual conduct occurring on other occasions or is not tortious as a matter of law, and the other apparently believes the nonsexual conduct not subsumed in the sexual conduct is so outrageous it could not relate to education at all. Though it would earn an "F" in a logic course, the lesson the majority teaches will be well received in the counting houses of insurance carriers. Unfortunately, at least one injured child may go uncompensated unless our Supreme Court changes the lesson plan. I would reverse.
Even though the key fact precluding coverage did not appear in the complaint, the status of the automobile was admitted by all parties; the insurance company was allowed to base its decision on whether to defend on the "total facts it learns from all sources." (Id. at p. 548, 95 Cal.Rptr. 296.) The appellate court therefore affirmed the judgment, declaring the insurer had no duty to defend. (Id. at pp. 548-549, 95 Cal.Rptr. 296.)
The so-called nonsexual acts here have the same character as the acts in John R. Acts such as being alone with the student, giving her special tardy notes and pulling her out of class only take on meaning as part of a general plan of seduction rather than educational activity. As Justice Arguelles perceptively observed about the teacher's efforts to seduce the student in John R., "[a] more personal escapade less related to an employer's interests is difficult to imagine." (48 Cal.3d at p. 447, 256 Cal.Rptr. 766, 769 P.2d 948.)
Notwithstanding the court's warning, the majority applies J.C. Penney's restricted holding to alleged incidents unquestionably involving only "other types of wrongdoing." My colleagues blithely label these allegations "sexual molestation" because the teacher did molest student Barbara B. on other occasions.
This conclusion is grounded on the majority's unsupported assumption that all the nonsexual torts preceded the molestations. And it is perversely illogical even if they did. The nonsexual conduct pleaded here is not foreplay; that would be one thing, e.g., Justice Sills' arson example. But, as I understand them, the nonsexual torts alleged are only related to the molestations in that the same people are involved. It is elementary that, even where there is an identity of parties, events occurring at different times and places are different events. For example, while all rapes are also batteries, the reverse is not true. A woman slapped every day from Monday through Saturday does not lose her six battery cases of action simply because the same assailant raped her on Sunday, nor does her case magically transform into one of seven counts of rape.
Why insurance companies, who are the major victims of the declaratory relief summary judgment mill, have not wised up is a mystery to me. Surely aberrational victories like today's affirmance are too rare to justify the cost, and the same erroneous result would presumably have occurred at trial anyway and been much easier for the carrier to defend on appeal.