Abraham v. State Farm General Insurance Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 5, 2024
• Docket: 23-2776
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LIOR ABRAHAM, No. 23-2776 D.C. No. Plaintiff - Appellant, 4:22-cv-01600-JST v. MEMORANDUM* STATE FARM GENERAL INSURANCE COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Submitted October 21, 2024** San Francisco, California

Before: GILMAN***, WARDLAW, and COLLINS, Circuit Judges.

Lior Abraham (“Abraham”) appeals the district court’s grant of summary

judgment in favor of State Farm Insurance Company (“State Farm”) on his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. California state-law claims for breach of contract, breach of the implied covenant

of good faith and fair dealing, and declaratory judgment arising from State Farm’s

denial of coverage for the defense of a lawsuit alleging sexual assault by him (the

“Doe Action”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court correctly granted summary judgment in favor of State

Farm. Abraham contends that the district court erred in concluding that there was

no possibility of coverage under both policies State Farm issued to him, the

Renters Policy and Personal Liability Umbrella Policy (the “Umbrella Policy”).

He asserts that there are genuine disputes of material fact on the issues of whether

he intended to hurt Doe and whether Doe consented to his sexual advances, and he

mistakenly argues that those issues are relevant to the question of coverage.

California law defines an “occurrence” or “accident” as “an unexpected,

unforeseen, or undesigned happening or consequence from either a known or an

unknown cause.” Liberty Surplus Ins. Corp. v. Ledesma & Meyer Constr. Co., 5

Cal. 5th 216, 221 (2018), as modified (July 25, 2018). “[T]he word ‘accident’ in

the coverage clause of a liability policy refers to the conduct of the insured for

which liability is sought to be imposed . . . .” Id. (citation omitted). “When an

insured intends the acts resulting in the injury or damage, it is not an accident

‘merely because the insured did not intend to cause injury. The insured’s

subjective intent is irrelevant.’” Albert v. Mid-Century Ins. Co., 236 Cal. App. 4th

2 23-2776 1281, 1291 (2015) (citation omitted). Likewise, an insured’s mistaken belief as to

consent does not convert a volitional act into an accident. See, e.g., Merced Mut.

Ins. Co. v. Mendez, 213 Cal. App. 3d 41, 50 (Ct. App. 1989). Thus, “[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.” Ledesma, 5 Cal. 5th at 225.

Here, the district court correctly held that the relevant California authorities

foreclose Abraham’s position. Furthermore, the district court correctly found that

the undisputed facts show that Abraham engaged in deliberate and intentional

conduct and that there was no “unexpected, independent, and unforeseen

happening” that allegedly harmed Doe. Id.; see also Merced, 213 Cal. App. 3d at

50 (finding no “accident” where the insured admitted to intentionally engaging in

sexual activity with the victim).

Abraham’s arguments to the contrary are misplaced. Abraham cites no

authority to support his argument that a reasonable mistake as to the victim’s

consent could convert his intentional actions into an “accident.” Indeed, California

courts have held the opposite. See Quan v. Truck Ins. Exch., 67 Cal. App. 4th 583,

599 (1998) (“[E]ven if a jury was to find that the insured was mistaken in his belief

as to whether the claimant ‘consented’ to the touching, embracing, kissing or

sexual intercourse, there was still no additional happening constituting an

3 23-2776 “accident” which caused the injuries.”); Lyons v. Fire Ins. Exch., 161 Cal. App. 4th

880, 889 (2008) (“Regardless of his misperception of consent, Lyons intended his

sexual advance and the accompanying unwanted detention that was the subject of

Roy’s claim.”). Furthermore, Abraham’s reliance on Justice Liu’s concurrence in

Ledesma is misplaced. A single concurrence “has no precedential value.” People

v. Byrd, 89 Cal. App. 4th 1373, 1383 (2001). Nor has Abraham presented any

convincing evidence that the California Supreme Court will overrule or modify

these holdings of the California Courts of Appeal. See In re Watts, 298 F.3d 1077,

1083 (9th Cir. 2002). To the contrary, the California Supreme Court has cited to

these cases approvingly in Delgado v. Interinsurance Exchange of Automobile.

Club of Southern California, 47 Cal. 4th 302, 316 (2009). Accordingly, the district

court correctly granted summary judgment in favor of State Farm.1

AFFIRMED.

1 Abraham also contends that the district court erred in granting summary judgment because the Umbrella Policy’s intentional torts provision might apply to the events in the underlying Doe Action. We decline to address the merits of this argument. Nowhere in Abraham’s original complaint, amended complaint, or summary judgment briefing did Abraham raise this theory of liability, let alone argue it. Accordingly, Abraham has waived this argument. See Walsh v. Nevada Dep’t of Hum. Res., 471 F.3d 1033, 1037 (9th Cir. 2006); see also Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 848 n.4 (9th Cir. 2004) (“[P]arties cannot raise new issues on appeal to secure a reversal of the lower court’s summary judgment determination.”). We need not address the parties’ remaining arguments because they are unnecessary to the resolution of this appeal.

4 23-2776