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April 29.2009

Oral Argument Date Set in: Delgado v. Interinsurance Exchange, Addressing the Question of Coverage for Negligently Exceeding the Bounds of Self-Defense

by Brett Wheeler

 The California Supreme Court has set oral argument in the  Delgado v Interinsurance Exchange case for May 27, 2009, at 1:30 p.m., in San Francisco.  The question presented is whether a claim that the defendant negligently exceeded the bounds of self defense raises a potential for coverage under a homeowner’s policy.  This, of course, was exactly the question presented in the seminal  1966 California Supreme Court decision Gray v. Zurich Insurance Co.  In Gray, the insured was accused of intentional assault, but the court found that he might have been able to show that the assault was motivated by self defense, rather than willful misconduct, and therefore potentially covered.  This potential for coverage, however slight, triggered the duty to defend.  The Court of Appeal decision in Delgado followed Gray in finding coverage.  Gray involved the issue of whether Insurance Code Section 533 barred coverage.  The oral argument is likely to focus on the term “accident” contained within the “occurrence” definition and whether that term (not at issue in Gray) restricts coverage further when an insured uses excessive force or is unreasonable in acting in self-defense.  We will be attending oral argument and reporting further then.

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