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July 2014

No Duty to Defend Insureds Against Claims for Conspiracy to Abduct Child Since Conduct Not Accidental

On June 26, California’s Fourth Appellate District published an opinion finding that an insurer had no duty to defend insureds against claims they conspired to abduct a child because such claims did not constitute accidental conduct. In the underlying action, State Farm’s insureds were sued for conspiring to aid a mother in abducting her son from his father. The father’s lawsuit alleged violations of Civil Code §49(a), negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress.

State Farm denied the insureds’ tender on the ground the abduction claims did not arise out of accidental conduct and therefore did not constitute an occurrence. After obtaining a favorable judgment in the underlying action, the insureds sued State Farm alleging that, since the father had failed to prove they had committed any acts related to the abduction of the child, State Farm should have defended them. However, the trial court granted summary judgment in State Farm’s favor.

In affirming the judgment in Upasani, et al. v. State Farm General Insurance Co., the appellate court found that the complaint’s allegations, supplemented by discovery responses, established that the only claims against the insureds were for conspiracy to abduct the plaintiff’s son, and were thus intentional, purposeful, and non-accidental. The court found that conspiracy is non-accidental or intentional because “[t]he sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective.” Likewise, the insureds’ alleged violation of Civil Code §49(a), which prohibits “[t]he abduction or enticement of a child from a parent,” required the defendants to have “acted with improper motives.”

The court further rejected the argument that a potential for liability for aiding and abetting triggered coverage because “California courts have long held that liability for aiding and abetting depends on proof the defendants had actual knowledge of the specific primary wrong the defendants substantially assisted.” Similarly, the court held that the claims for emotional distress were uncovered because it is well established California law that “bodily injury does not include emotional distress damages.”

Finally, the court dismissed the argument that the 18 years the mother hid the child was potentially unforeseeable and thus constituted an accident, affirming that “the term ‘accident’ in the policy’s coverage clause refers to the injury-producing acts of the insured” and that the underlying special verdict in favor of the insureds made no express finding that could be implied as finding the insureds’ conduct was accidental.

Despite the presence of causes of action for negligence and negligent infliction of emotional distress, the court found that all of the facts alleged and developed through discovery did not arise from bodily injury caused by an accident and therefore did not trigger a duty to defend under the State Farm policy.

To read the opinion, click here.

The opinion in Upasani, et al. v. State Farm General Insurance Co. (June 26, 2014) ___ Cal.App.4th ____; 14 C.D.O.S. 7230; 2014 Cal.App.LEXIS 569 is not final.  It may be withdrawn from publication, modified on rehearing, or review may be granted by the California Supreme Court.  These events would render the opinion unavailable for use as legal authority.