Can an intentional act still be an “accident?”  That is the question the California Supreme Court struggled with on Wednesday (May 27th) during oral argument in Delgado v. Interinsurance Exchange.  The specific issue was whether a claim that the defendant negligently exceeded the bounds of self-defense raises a defense duty under a homeowner’s policy.  The Court answered this question in its seminal Gray v. Zurich decision in 1966.  Unlike Gray, however, Delgado did not involve the public policy limitation contained in Insurance Code Section 533.  At issue, rather, was the definition of the policy term “accident” and whether it could potentially encompass negligent acts of self defense that otherwise would be excluded as purposeful or intentional battery.

The insurer made much of this difference, emphasizing that any analysis must begin with the objective character of the act.  In response to a question from Justice Werdegar, the insurer sought support in Geddes for the definition that “accident” does not include the insured’s motive but simply, in the insurer’s words, the “intent to commit the act.”  Both amici curiae for the insured sought to steer the Court away from this definition—although greater emphasis could have been placed on Geddes itself, which defined “accident” quite broadly as “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”  This definition, of course, includes unintended consequences of intentional acts, as well as “unexpected happenings” such as unexpectedly finding yourself in a circumstance which requires a quick decision as to the need for self-defense.

Neither the Court nor the parties were interested in overruling Gray; and insurer’s counsel framed the issue narrowly by repeatedly distinguishing the policy at issue here, which contained the term  “accident,” from that in Gray, where the issue was the application of Insurance Code 533. The Justices continued to press both parties on how the Court should define “accident” in keeping with precedent.  Perhaps most interesting was the exchange between Justice Corrigan and amicus for the insured.  Justice Corrigan professed not to understand how an insured could strike and kick another person, whether in self-defense or not, without “intending” the act and indeed committing the act with the purpose of inflicting injury.  Relying implicitly on the concept of a fortuity rather than narrowly on intent, amicus suggested that case law distinguishes between an act and the circumstances giving rise to that act:  A party that runs into a parked car in order to avoid hitting a pedestrian cannot be said to be acting “intentionally” for purpose of an insurance exclusion when the insured had no role in creating the circumstances that compelled her to act in that way.

The analogy may or may not have carried the day.  Justice Corrigan possibly represented some other Justices at least by expressing discomfort with providing coverage for an insured’s battery even when the charge against him was for negligent self-defense.  The insured pointed out, of course, that the issue was merely the potential for coverage, not an indemnity obligation.  In the last minutes before the insurer’s rebuttal, amicus for the insured argued that the measure of whether there is an “accident” should be made by examining the act in combination with the insured’s intent regarding the resulting injury as well as in the context of the circumstances in which the act occurred.  With that, the Court took the matter under submission, and we will wait and see whether the court affirms its precedent or whether discomfort gives birth to new law on the meaning of “accident.”