Thomas Francis v. Allstate Insurance Company

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

THOMAS MICHAEL FRANCIS; 
DANIELLE FRANCIS,
Plaintiffs-Appellants,
v.  No. 12-1563

ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:11-cv-01030-WDQ)

Argued: January 30, 2013

Decided: March 7, 2013

Before DAVIS, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Judge Diaz and Judge Thacker joined.

COUNSEL

ARGUED: Edward J. Brown, LAW OFFICE OF EDWARD
J. BROWN, LLC, Ellicott City, Maryland, for Appellants.
Ronald Weldon Cox, Jr., MCCARTHY WILSON, LLP,
Rockville, Maryland, for Appellee. ON BRIEF: Thomas Pat-
2 FRANCIS v. ALLSTATE INSURANCE COMPANY
rick Ryan, MCCARTHY WILSON, LLP, Rockville, Mary-
land, for Appellee.

OPINION

DAVIS, Circuit Judge:

Appellants Thomas and Danielle Francis ("the Francises"
or "Appellants") appeal an order of the district court granting
summary judgment to Appellee Allstate Insurance Company
("Allstate"). In March 2011, Appellants brought this action in
Maryland state court seeking a declaration as to Allstate’s
duty under a renters insurance policy to defend and indemnify
the Francises in a tort suit brought against them, and others,
in the Circuit Court for Frederick County, Maryland. Mean-
while, in the tort suit, the state court entered a final judgment
in favor of all defendants (including the Francises) on April
6, 2011. Thereafter, Allstate filed a Notice of Removal, and
this action was removed to the United States District Court for
the District of Maryland on the basis of diversity jurisdiction.

After the district court denied Appellants’ first motion to
remand, Allstate filed a motion for summary judgment, con-
tending that the Francises’ renters insurance policy, issued in
California, did not provide coverage for the claims asserted in
the underlying tort action. In response, Appellants moved a
second time to remand, now on the ground that (as they
sought only the costs of their defense of the tort suit, rather
than any potential indemnity) the amount in controversy did
not exceed the $75,000 jurisdictional threshold, and thus the
district court lacked subject matter jurisdiction. Appellants
also opposed Allstate’s motion for summary judgment on the
merits.

On April 18, 2012, the district court denied the second
motion to remand and granted Allstate’s motion for summary
 FRANCIS v. ALLSTATE INSURANCE COMPANY 3
judgment, concluding that Allstate did not have a duty to
defend. Francis v. Allstate Ins. Co., 869 F. Supp. 2d 663 (D.
Md. 2012). Appellants filed a timely notice of appeal. For the
reasons that follow, we affirm.

I.

A.

In March 2008, Danielle Francis, a California resident, and
her minor son Thomas were sued by Troy Towers in the Cir-
cuit Court for Frederick County, Maryland ("the Underlying
Action"). Towers worked as a Resident Aide at the Maryland
School for the Deaf ("MSD"), which Thomas Francis attended.1
The complaint in the Underlying Action asserted claims of
defamation, invasion of privacy-false light, malicious prose-
cution, civil conspiracy and intentional infliction of emotional
distress. The complaint alleged that Thomas Francis, with the
assistance of his parents, "made false statements about [Tow-
ers], claiming he had sexually abused . . . and assaulted [ ]
Thomas Francis and other students at MSD." J.A. 38. It fur-
ther averred that the Francises knowingly made the false and
defamatory statements about Towers, or in the alternative,
that they negligently made them. Criminal charges had been
filed against Towers based in part on the alleged statements
but were later dismissed; Towers alleged that the statements
injured his reputation in the community and at MSD, that as
a result of the statements he suffered mental anguish and
humiliation, and that he had been temporarily suspended
without pay from his employment.

Appellants did not and do not deny making the alleged
statements, but contend that Ms. Francis made them for the
sole purpose of protecting her son and "without intent to slan-
1
We were advised at oral argument that at the time the Underlying
Action was filed, Thomas Francis was a minor; he has now attained his
majority.
4 FRANCIS v. ALLSTATE INSURANCE COMPANY
der Mr. Towers [ ]or invade his privacy." Appellants’ Br. 3.
Additionally, they argue that Thomas Francis made the state-
ments to school officials, and later to police, "solely for [his
own] protection and not to defame or otherwise harm Mr.
Towers." Id. at 4.

At the time of the allegedly defamatory statements, the
Francises were insured under a California Renters Policy
("the Policy") issued by Allstate. The Policy covered Danielle
Francis’s residence in Santa Clara, California, and was mailed
to her at that residence. The Policy provided, in relevant part:

Subject to the terms, conditions and limitations of
this policy, Allstate will pay damages which an
insured person becomes legally obligated to pay
because of bodily injury or property damage arising
from an occurrence to which this policy applies, and
is covered by this part of the policy.

[Allstate] may investigate or settle any claim or suit
for covered damages against an insured person. If an
insured person is sued for these damages, [Allstate]
will provide a defense with counsel of [its] choice,
even if the allegations are groundless, false or fraud-
ulent. [Allstate] [is] not obligated to pay any claim
or judgment after [it] [has] exhausted [its] limit of
liability.

J.A. 77, Policy at p. 14.

The Policy defines "occurrence" as:

[A]n accident, including continuous or repeated
exposure to substantially the same general harmful
conditions, during the policy period, resulting in
bodily injury or property damage.

J.A. 66, Policy at p. 3.
 FRANCIS v. ALLSTATE INSURANCE COMPANY 5
"Bodily Injury" is defined as "physical harm to the body,
including sickness or disease, and resulting death . . . ." J.A.
65, Policy at p. 2. "Property Damage" is defined as "physical
injury to or destruction of tangible property, including loss of
its use resulting from such physical injury or destruction."
J.A. 66, Policy at p. 3.

The Policy also contains a choice-of-law provision which
states:

This policy is issued in accordance with the laws of
California and covers property or risks principally
located in California. Subject to the following para-
graph, the laws of California shall govern any and all
claims or disputes in any way related to this policy.

If a covered loss to property, or any other occurrence
for which coverage applies under this policy happens
outside California, claims or disputes regarding that
covered loss to property, or any other covered occur-
rence may be governed by the laws of the jurisdic-
tion in which that covered loss to property, or other
covered occurrence happened, only if the laws of
that jurisdiction would apply in the absence of a con-
tractual choice of law provision such as this.

J.A. 89, Policy Endorsement, California Renters Amendatory
Endorsement.

The Francises initiated this action in the Circuit Court for
Frederick County, Maryland, contending that Allstate had a
duty to defend them, under the Policy, against Towers’s suit.
The Complaint for Declaratory Judgment asserted that, in
addition to Towers’s false-light contentions, Towers "sus-
tained bodily injury as a result of the [Francises’] alleged acts
—e.g. impotency." J.A. 9. At the time the declaratory judg-
ment action was filed, the Francises (by their privately
retained counsel) had already filed a motion for summary
6 FRANCIS v. ALLSTATE INSURANCE COMPANY
judgment in the Underlying Action. That motion was granted
on March 16, 2011, and final judgment in favor of all defen-
dants was entered April 6, 2011. At the conclusion of the
Underlying Action, the Francises had expended $66,347 in
attorney’s fees and costs for their defense.

On April 20, 2011, Allstate timely removed the declaratory
judgment action to the United States District Court for the
District of Maryland on the basis of diversity jurisdiction. The
Francises filed a timely motion to remand the case to state
court on May 19, 2011, contending that the removal was
untimely because the thirty-day time limit for removal had
expired. The district court found the removal timely and
denied the motion to remand.

Allstate filed a motion for summary judgment in the declar-
atory judgment action on October 28, 2011, asserting that it
had no duty to defend the Francises because, under California
law, the statements made about Towers did not constitute an
"accident," and therefore claims arising from them were not
covered by the Policy.2 The Francises filed a second motion
to remand the case, which challenged the district court’s sub-
ject matter jurisdiction on the basis that the $75,000 amount-
in-controversy threshold had not been met, and they also sub-
stantively challenged Allstate’s denial of coverage of the
Underlying Action.

On April 17, 2012, the district court denied the Francises’
second motion for remand and granted Allstate’s motion for
summary judgment. This timely appeal followed.
2
As previously mentioned, at the time of removal and thereafter, the
Underlying Action had been resolved in favor of the Francises. Thus, as
the parties agree, Allstate’s duty to indemnify the Francises was not at
issue.
 FRANCIS v. ALLSTATE INSURANCE COMPANY 7
II.

This Court reviews the denial of a motion to remand to
state court de novo. Lontz v. Tharp, 413 F.3d 435, 439 (4th
Cir. 2005). Likewise, we review a district court’s grant of
summary judgment de novo, applying the same standard used
by the district court. Reynolds v. Am. Nat’l Red Cross, 701
F.3d 143, 149 (4th Cir. 2012). The Court "view[s] all facts
and reasonable inferences therefrom in the light most favor-
able to the nonmoving party." T-Mobile Ne., LLC v. City
Council of City of Newport News, Va., 674 F.3d 380, 385 (4th
Cir. 2012) (internal quotations and citations omitted). Under
Federal Rule of Civil Procedure 56(a), summary judgment
should be granted "if the movant shows that there is no genu-
ine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The
moving party is ‘entitled to judgment as a matter of law’
when the nonmoving party fails to make an adequate showing
on an essential element for which it has the burden of proof
at trial." Maracich v. Spears, 675 F.3d 281, 291 (4th Cir.
2012), cert. granted, 133 S. Ct. 98 (2012).

III.

Appellants first contend the district court erred in rejecting
their jurisdictional challenge because the amount-in-
controversy requirement was not met. The removal of a civil
case from state to federal court is governed by 28 U.S.C.
§ 1446. That statute provides:

(a) Generally. — A defendant or defendants desiring
to remove any civil action from a State court shall
file in the district court of the United States for the
district and division within which such action is
pending a notice of removal signed pursuant to Rule
11 of the Federal Rules of Civil Procedure and con-
taining a short and plain statement of the grounds for
removal, together with a copy of all process, plead-
8 FRANCIS v. ALLSTATE INSURANCE COMPANY
ings, and orders served upon such defendant or
defendants in such action.

28 U.S.C. § 1446(a).

The removability of a case "depends upon the state of the
pleadings and the record at the time of the application for
removal . . . ." Alabama Great S. Ry. Co. v. Thompson, 200
U.S. 206, 216 (1906); Pullman Co. v. Jenkins, 305 U.S. 534,
538 (1939). If diversity of citizenship, under 28 U.S.C.
§ 1332(a), provides the grounds for removal, then "the sum
demanded in good faith in the initial pleading shall be deemed
to be the amount in controversy . . . ." 28 U.S.C. § 1446(c)(2).
If a complaint "does not allege a specific amount of damages,
the removing defendant must prove by a preponderance of the
evidence that the amount in controversy exceeds [$75,000]."
De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). "In
actions seeking declaratory or injunctive relief, it is well
established that the amount in controversy is measured by the
value of the object of the litigation." Hunt v. Washington State
Apple Adver. Comm’n, 432 U.S. 333, 347 (1977); McNutt v.
Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 181
(1936) (noting the "principle that jurisdiction is to be tested
by the value of the object or right to be protected against
interference").

Here, when Allstate filed its Notice of Removal, according
to the state court complaint, the object of the litigation was the
Francises’ request that Allstate defend and/or indemnify them
in the Underlying Action for defamation and related torts.
Despite the fact that by the time Allstate removed the case to
federal court, indemnity was no longer at issue, the relief
requested in the declaratory judgment complaint specifically
included the costs and expenses to be incurred in the declara-
tory judgment action as well as defense costs in the Underly-
ing Action. Nevertheless, Appellants now contend that the
only amount that ought to be considered in ascertaining
whether the amount in controversy exceeds $75,000 is the
 FRANCIS v. ALLSTATE INSURANCE COMPANY 9
total of the attorney’s fees incurred in defending against the
Underlying Action. They contend that the costs of pursuing
this declaratory judgment action are "not a part of the amount
of controversy calculation as they are not recoverable by stat-
ute or contract provision," and "even if they were, a fact find-
ing hearing would need to be conducted, to determine if the
costs would exceed the $6,000 gap [between the defense costs
for the Underlying Action and the $75,000 threshold]."
Appellants’ Br. 25, n.3. In other words, Appellants argue
(with insight flowing from 20-20 hindsight) that the sole
object of this litigation was the $66,347 expended by the
Francises to defend against the Underlying Action. Allstate
asserts, to the contrary, that the value of the attorney’s fees
likely to be incurred throughout the declaratory judgment
action should also be included in the amount-in-controversy
calculation.

Generally, attorney’s fees are not included in the amount-
in-controversy calculation, but courts have created two excep-
tions to this rule: "(1) if the fees are provided for by contract;
or (2) if a statute mandates or allows payment of attorney’s
fees." 15-102 Moore’s Federal Practice, Civil
§ 102.106(6)(a).

Appellants brought their declaratory judgment action under
the Maryland Uniform Declaratory Judgment Act.3 With
regard to the availability of attorney’s fees in a declaratory
judgment action, the Maryland Court of Appeals has held

[A]n insurer is liable for the damages, including
attorneys’ fees, incurred by an insured as a result of
the insurer’s breach of its contractual obligation to
3
The Maryland Uniform Declaratory Judgment Act provides:
Except for the District Court, a court of record within its jurisdic-
tion may declare rights, status, and other legal relations whether
or not further relief is or could be claimed . . . .
Md. Code Ann., Cts. & Jud. Proc. §3-403.
10 FRANCIS v. ALLSTATE INSURANCE COMPANY
defend the insured against a claim potentially within
the policy’s coverage, and this is so whether the
attorneys’ fees are incurred in defending against the
underlying damage claim or in a declaratory judg-
ment action to determine coverage and a duty to
defend.

Bankers & Ship. Ins. v. Electro Enter., 415 A.2d 278, 282
(Md. 1980). Additionally, under the Maryland Declaratory
Judgment Act, "further relief based on a declaratory judgment
or decree may be granted if necessary or proper." Md. Code
Ann., Cts. & Jud. Proc. §3-412.

The district court reviewed the above authorities bearing on
the Maryland courts’ position on attorney’s fees in declaratory
judgment suits and concluded that "[w]hen Maryland law per-
mits recovery of attorneys’ fees, ‘[p]otential attorneys’ fees
should be considered in determining whether the amount in
controversy in a diversity action exceeds the jurisdictional
threshold.’" Francis, 869 F. Supp. 2d at 669 (citing Gilman
v. Wheat, First Sec., Inc., 896 F. Supp. 507, 511 (D. Md.
1995) (finding that a claim for relief under the Maryland
Securities Act authorizes recovery of attorney’s fees in certain
situations, and concluding that potential attorney’s fees should
be considered in the amount-in-controversy determination)).
After considering the $66,347 expended in the Underlying
Action, the district court concluded that "[e]xperience and
common sense suggest that the Plaintiffs’ attorneys’ fees in
[the declaratory judgment] case will exceed $8,653 — the dif-
ference between $75,000 and the $66,347 the Plaintiffs spent
in Towers’s lawsuit." Francis, 869 F. Supp. 2d at 670. We
agree.

We also agree with the district court that, as Maryland case
law allows for the recovery of attorney’s fees in declaratory
judgment actions, the attorney’s fees in the Francises’ action
are properly considered in the amount-in-controversy calcula-
tion here. As the complaint in this action did not seek a spe-
 FRANCIS v. ALLSTATE INSURANCE COMPANY 11
cific amount in damages, Allstate need only "prove by a
preponderance of the evidence that the amount in controversy
exceeds the [jurisdictional minimum]." De Aguilar, 11 F.3d at
58.

As the district court noted, "[t]his action involves federal
jurisdiction, contract interpretation, and choice of law issues
that were not addressed in the underlying tort action." Fran-
cis, 869 F. Supp. 2d at 670. The complexity of the case is suf-
ficient to establish that it is more likely than not that the
attorney’s fees likely to be incurred by Appellants in this
declaratory judgment action, when coupled with the amount
they expended to defend the tort action, will exceed the juris-
dictional threshold. Thus, the district court did not err in its
rejection of the Appellants’ jurisdictional challenge.4

IV.

Appellants’ challenge to the merits of the district court’s
coverage determination rests primarily on their contention
that Maryland law, rather than California law, applies to the
issue of contract interpretation.5 We reject that contention and
affirm the district court’s application of California law for the
reasons set forth within.

A.

A federal court sitting in diversity is required to apply the
substantive law of the forum state, including its choice-of-law
rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496-97 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79
(1938). Maryland courts have "long recognized the ability of
contracting parties to specify in their contract that the laws of
4
Tellingly, Appellants had not raised the amount-in-controversy issue in
their initial motion to remand.
5
There is no dispute between the parties that, as to issues of tort liability
possibly relevant to the Underlying Action, Maryland law would apply.
12 FRANCIS v. ALLSTATE INSURANCE COMPANY
a particular State will apply in any dispute over the validity,
construction, or enforceability of the contract." Jackson v.
Pasadena Receivables, Inc., 921 A.2d 799, 803 (Md. 2007).
Such choice-of-law provisions "trump the conflict of law
rules that otherwise would be applied by the court." Id.

The Policy’s choice-of-law provision called for the applica-
tion of California law, unless a covered occurrence took place
outside of California, in which case

claims or disputes regarding that covered loss to
property, or any other covered occurrence may be
governed by the laws of the jurisdiction in which
that covered loss to property, or other covered occur-
rence happened, only if the laws of that jurisdiction
would apply in the absence of a contractual choice
of law provision such as this.

J.A. 89, Policy Endorsement, California Renters Amendatory
Endorsement. Thus, Maryland law applies to the issue of
whether Allstate had a duty to defend the Francises if Mary-
land law would apply without the choice-of-law provision in
the Policy.

B.

Maryland courts follow the doctrine of lex loci contractus
when interpreting insurance contracts and determining which
state’s law governs.6 Allstate Ins. Co. v. Hart, 611 A.2d 100,
6
Appellants contend that the district court erred in finding that the
Maryland doctrine of lex loci contractus required the application of Cali-
fornia law. They assert that the doctrine of renvoi should have been
applied.
The doctrine of renvoi provides that "when the forum court’s choice-of-
law rules would apply the substantive law of a foreign jurisdiction to the
case before the forum court, the forum court may apply the whole body
of the foreign jurisdiction’s substantive law including the foreign jurisdic-
 FRANCIS v. ALLSTATE INSURANCE COMPANY 13
101 (Md. 1992). The doctrine requires courts to apply the law
of the jurisdiction where the contract was made to determine
questions of its validity and construction. Id. Where the con-

tion’s choice-of-law rules." Am. Motorists Ins. Co. v. ARTRA Group, Inc.,
659 A.2d 1295, 1302 (Md. 1995).
Under a "limited renvoi exception," Maryland courts "avoid the irony
of applying the law of a foreign jurisdiction when that jurisdiction’s con-
flict of law rules would apply Maryland law." Id. at 1304. In such a situa-
tion, Maryland courts apply Maryland substantive law to agreements
entered in foreign jurisdictions, notwithstanding the lex loci contractus
doctrine, when
(1) Maryland has the most significant relationship, or, at least, a
substantial relationship with respect to the contract issue pre-
sented; and
(2) The state where the contract was entered into would not apply
its own substantive law, but instead would apply Maryland sub-
stantive law to the issue before the court.
Id.
Applying this two-part test to the facts here demonstrates the inappro-
priateness of invoking renvoi. First, although the events that led to the fil-
ing of the Underlying Action took place in Maryland, the contract issue
presented is whether Allstate had a duty to defend the Francises based on
the terms of a contract that was made in California. Not only does Mary-
land not have the most significant relationship to the issue of whether All-
state has a duty to defend under a California contract, it has virtually no
relationship to it other than the fact that the event that triggered the
attempt to enforce the duty happened to take place in Maryland. Accord-
ingly, application of the first prong does not weigh in favor of renvoi.
As for the second prong, Appellants provide no support for the proposi-
tion that, in the face of a choice-of-law provision in the Policy that dic-
tated California law to govern any disputes arising under the agreement,
California would not apply its own substantive law but would instead
apply Maryland substantive law.
As neither of the two prongs of the test for application of the limited
doctrine of renvoi is met here, the controlling doctrine is lex loci contrac-
tus. Thus, the district court correctly determined that California law gov-
erns the issue of contract interpretation in this case, i.e., whether Allstate
owed the Francises a duty to defend under the Policy.
14 FRANCIS v. ALLSTATE INSURANCE COMPANY
tract is "made" is defined as "‘where the last act is performed
which makes [the] agreement a binding contract.’" Sting Sec.
Inc. v. First Mercury Syndicate, Inc., 791 F. Supp. 555, 558
(D. Md. 1992) (quoting Travelers Indem. Co. v. Allied-Signal,
Inc., 718 F. Supp. 1252, 1253 (D. Md. 1989)). When the con-
tract is an insurance policy, this is usually "the state in which
the policy is delivered and the premiums are paid." Aetna
Cas. & Sur. Co. v. Souras, 552 A.2d 908, 911 (Md. Ct. Spec.
App. 1989).

Here, Danielle Francis resides in California, and the Policy
was mailed to her California home.7 Danielle Francis also
made premium payments while living in California. Thus,
according to Maryland’s lex loci contractus rule for choice-
of-law decisions, California law governs the analysis of
whether Allstate had a duty to defend the Francises in the
Underlying Action.

C.

Appellants argue that even if the district court did not err
in holding that California law applies, Allstate nonetheless
owed the Francises a duty to defend under the Policy. We dis-
agree with Appellants’ argument.

In California, "‘[t]he duty to defend [under a liability insur-
ance contract] is determined by reference to the policy, the
complaint, and all facts known to the insurer from any
source.’" Montrose Chem. Corp. v. Superior Court, 861 P.2d
1153, 1161 (Cal. 1993) (emphasis in original). More particu-
larly, as noted by the district court, under the terms of the Pol-
icy, in order to establish Allstate’s duty to defend, the
Francises were required to demonstrate that "the action arose
from an ‘accident’ and sought damages for ‘bodily injury’ or
7
It appears the parties have never suggested that Thomas Francis’s tem-
porary residence in Maryland as a student at the MSD bears on either the
jurisdictional or the substantive issues presented in this case.
 FRANCIS v. ALLSTATE INSURANCE COMPANY 15
[‘]property damage.[’]" Francis, 869 F. Supp. 2d at 672 (cit-
ing Allstate Ins. Co. v. LaPore, 762 F. Supp. 268, 270 (N.D.
Cal. 1991)).

On appeal, the Francises contend that the statements made
about Towers, although made voluntarily, were not made with
the intent to "deliberately hurt Mr. Towers," but rather with
the intent to "trigger the school’s intervention." Appellants’
Br. 19. They argue that the district court incorrectly focused
on the fact that the statements were intentionally made when
it held that no "accident" occurred.

Allstate responds that, under California law, "an insured’s
intentional acts do not become ‘accidental’ merely because he
did not intend to cause harm"; rather, "California courts have
held for nearly a half century that the term ‘accident’ applies
to the insured’s act itself, not the consequences of that act."
Appellee’s Br. 36. (Emphasis in original).

The Supreme Court of California has defined "accident," as
used in insurance policies, as "‘an unexpected, unforeseen, or
undesigned happening or consequence from either a known or
unknown cause.’" Hogan v. Midland Nat’l Ins. Co., 476 P.2d
825, 828 (Cal. 1970) (quoting Geddes & Smith, Inc. v. St.
Paul-Mercury Indem. Co., 334 P.2d 881, 884 (Cal. 1959)).
The California Court of Appeal has instructed that "‘[t]he def-
inition of "accident" halts any argument that [the insured]
intended his act but not the resulting harm.’" Commercial
Union Ins. Co. v. Superior Court of Humboldt County, 242
Cal. Rptr. 454, 456 (Cal. Ct. App. 1987) (quoting Royal
Globe Ins. Co. v. Whitaker, 226 Cal. Rptr. 435, 438 (Cal. Ct.
App. 1986)).

California courts construing policies with provisions simi-
lar to those in the Allstate policy have repeatedly held that
intentional acts are not "accidents," and have found insurers
not liable for intentional conduct of their insureds. Illustrative
is Merced Mut. Ins. Co. v. Mendez, in which the California
16 FRANCIS v. ALLSTATE INSURANCE COMPANY
Court of Appeal considered, in a declaratory judgment action,
whether Merced Mutual had an obligation to defend or
indemnify its insured in a suit brought against him for dam-
ages resulting from having engaged in sexual activities with
a coworker. 261 Cal. Rptr. 273 (Cal. Ct. App. 1989). The
plaintiff in the underlying tort suit alleged that the insured
sexually assaulted her several times at their workplace. The
insured contended that the sexual encounters were consensual.
The policy covered suits against the insured for "damages
because of bodily injury or property damage caused by an
occurrence." Id. at 275. "Occurrence" was defined as "an acci-
dent, including exposure to conditions, which results, during
the policy period, in: [ ] a bodily injury; or [ ] property dam-
age." Id.

The Mendez court held the conduct was not covered
because "[a]n accident [ ] is never present when the insured
performs a deliberate act unless some additional, unexpected,
independent, and unforeseen happening occurs that produces
the damage." Id. at 279. The court emphasized:

where the insured intended all of the acts that
resulted in the victim’s injury, the event may not be
deemed an ‘accident’ merely because the insured did
not intend to cause injury.

Id.

As Mendez and numerous other cases demonstrate, under
California law, "‘[w]hatever the motivation,’ because [the
Francises’] conduct was ‘calculated and deliberate’ . . . it was
not an ‘accident’ and thus not an ‘occurrence’ within the
meaning of the policy provision." Id. at 280 (quoting Hogan,
476 P.2d at 828-29).

Appellants rely heavily on an outlier from this line of deci-
sions, namely, an opinion of a California federal district court.
See Allstate Ins. Co. v. Vavasour, 797 F. Supp. 785 (N.D. Cal.
 FRANCIS v. ALLSTATE INSURANCE COMPANY 17
1992). In Vavasour, in an action for a declaratory judgment,
the district court considered whether Allstate had a duty to
defend or indemnify its insureds in a suit for trespass that was
pending in California state court. Id. The court called the case
a "close question," but concluded that because under Califor-
nia law, a person can be liable for trespassing for conduct that
is "either negligent, reckless or intentional, or the product of
ultrahazardous activity . . . , [t]respass is not merely an inten-
tional tort" and thus an alleged trespass may be an accident in
the "absence of intent to trespass . . . ." Id. at 788. The Vava-
sour court denied Allstate’s claim that it had no duty to
defend because the insureds’ conduct (driving in and out of a
driveway they believed was their own) was intentional. In so
holding, the court distinguished cases cited by Allstate on the
basis that the Vavasour’s conduct "may not have been inher-
ently wrongful and, indeed, may have been devoid of intent
or even knowledge . . . ." Vavasour, 797 F. Supp. at 788.

Appellants’ focus on Vavasour is unpersuasive. The deci-
sion in Vavasour has been described as "the only California
case failing to recognize th[e] principle" that the fact that con-
duct is intentional is dispositive of the question of whether an
"accident" occurred. Collin v. Am. Empire Ins. Co., 26 Cal.
Rptr. 2d 391, 404 (Cal. Ct. App. 1994).8

Thus, Vavasour stands alone. The consistently followed
rule under California law is that intentional conduct is not
"accidental" even if the resulting injury is wholly unintended.
The Francises clearly intended to make the statements at issue
in the Underlying Action; indeed, they hoped, as they con-
cede, that the statements would translate into action on the
part of the school (as they did in fact). The actions were inten-
tional, and under California law, non-accidental.
8
The judge who authored Vavasour "promptly issued a new ruling in
Bailey v. State Farm, [810 F. Supp. 267 (N.D. Cal. 1992)], which reaf-
firms the principle adopted in every other California decision." Collin v.
Am. Empire Ins. Co., 26 Cal. Rptr. 2d 391, 404 (Cal. Ct. App. 1994).
18 FRANCIS v. ALLSTATE INSURANCE COMPANY
V.

For the foregoing reasons, we affirm the judgment of the
district court.

AFFIRMED