Liberty Surplus Insurance Corporation v. Ledesma & Meyer Construction Company, Inc.

Appellants Ledesma & Meyer Construction Company, Inc. and its

principals, Joseph Ledesma and Kris Meyer (collectively, L&M) contracted with

the San Bernardino Unified School District to manage a construction project at a

middle school. In 2003, L&M hired Darold Hecht as an assistant superintendent

and assigned him to the project. In 2010, Jane Doe, a 13-year-old student at the

school, sued in state court alleging that Hecht had sexually abused her. Doe’s

claims include a cause of action against L&M for negligently hiring, retaining, and

supervising Hecht.

L&M tendered the defense to its insurers, Liberty Surplus Insurance

Corporation and Liberty Insurance Underwriters, Inc. (collectively, Liberty).

Liberty defended L&M under a reservation of rights. It also sought declaratory

relief in federal court, contending it had no obligation to defend or indemnify

L&M. The commercial general liability policy at issue provided coverage for

“ ‘bodily injury’ ” “caused by an ‘occurrence.’ ” “Occurrence” was defined as “an

accident.”2 The district court granted summary judgment to Liberty on the cause

of action for negligent hiring, retention, and supervision.



2 In a section titled “Insuring Agreement,” the policy stated:

“a. We will pay those sums that the insured becomes legally obligated to pay as

damages because of ‘bodily injury’ . . . to which this insurance applies. We will

have the right and duty to defend the insured against any ‘suit’ seeking those

damages. However, we will have no duty to defend the insured against any ‘suit’

seeking damages for ‘bodily injury’ . . . to which this insurance does not apply. . . .

“b. This insurance applies to ‘bodily injury’ and ‘property damages’ only if:

“(1) The ‘bodily injury’ . . . is caused by an ‘occurrence’ that takes place in

the ‘coverage territory’ . . . .”

In the “Definitions” section, the policy stated: “ ‘Occurrence’ means an

accident, including continuous or repeated exposure to substantially the same

general harmful conditions.”

3

The court reasoned that Doe’s injury was not caused by an “occurrence”

because the “alleged negligent hiring, retention and supervision were acts

antecedent to the sexual molestation . . . . While they set in motion and created the

potential for injury, they were too attenuated from the injury-causing conduct

committed by Hecht.” The court was not persuaded by the argument that L&M’s

supervision and retention of Hecht continued until the time of the molestation.

“First, the supervision and retention are still not the injury-causing acts. Second,

courts have rejected the argument that the insured’s intentional acts of hiring,

supervising, and retaining are accidents, simply because the insured did not intend

for the injury to occur.”

On appeal, L&M argued that the district court misapplied California law.

The Court of Appeals sought our opinion. As we explain, L&M’s position is

correct.

II. DISCUSSION

As a general matter, the meaning of the term “accident” in a liability

insurance policy is settled in California. “[A]n accident is ‘ “an unexpected,

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

unknown cause.” ’ [Citations.] ‘This common law construction of the term

“accident” becomes part of the policy and precludes any assertion that the term is

ambiguous.’ ” (Delgado v. Interinsurance Exchange of Automobile Club of

Southern California (2009) 47 Cal.4th 302, 308 (Delgado).) “Under California

law, the 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. at p.

311, italics added.) “[T]he term ‘accident’ is more comprehensive than the term

‘negligence’ and thus includes negligence (Black’s Law Dict. [(5th ed. 1979)] at p.

4

14, col. 2) . . . .”3 (Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 765

(Safeco).) Accordingly, a policy providing a defense and indemnification for

bodily injury caused by “ ‘an accident’ ” “promise[s] coverage for liability

resulting from the insured’s negligent acts.” (Ibid, italics added.)4

Here, the question is whether Liberty had a duty to defend L&M against

Doe’s lawsuit. “To prevail in an action seeking declaratory relief on the question

of the duty to defend, ‘the insured must prove the existence of a potential for

coverage, while the insurer must establish the absence of any such potential. In

other words, the insured need only show that the underlying claim may fall within

policy coverage; the insurer must prove it cannot.’ [Citation.] The duty to defend

exists if the insurer ‘becomes aware of, or if the third party lawsuit pleads, facts

giving rise to the potential for coverage under the insuring agreement.’ ”

(Delgado, supra, 47 Cal.4th at p. 308, quoting Waller v. Truck Ins. Exchange, Inc.

(1995) 11 Cal.4th 1, 19.)

It is important to keep in mind that a cause of action for negligent hiring,

retention, or supervision seeks to impose liability on the employer, not the

employee. The district court appeared to recognize that in analyzing the potential

for coverage, the focus is properly on the alleged negligence of L&M as the

insured employer. It is undisputed that Hecht’s sexual misconduct was a “wilful

act” beyond the scope of insurance coverage under Insurance Code section 533.

(J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1025.) However,



3 As explained in the dictionary cited by the Safeco court, any kind of

fortuitous event may be considered an “accident.” The legal elements of the tort

of negligence delineate a narrower set of circumstances.

4 The homeowners policy at issue in Safeco, like the homeowners policy in

Delgado and the commercial general liability policy in this case, contemplated a

defense and indemnification for bodily injury caused by “ ‘an occurrence,’ ”

defined in the policy as “ ‘an accident.’ ” (Delgado, supra, 47 Cal.4th at p. 308;

Safeco, supra, 26 Cal.4th at pp. 764-765.)

5

Hecht’s intentional conduct does not preclude potential coverage for L&M. We

noted the distinction between an intentional act of molestation and merely

negligent supervision in Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th

315 (Minkler). There the plaintiff sued his Little League coach for sexual

molestation. He also sued the coach’s mother, whom he accused of negligent

supervision for failing to prevent molestations that occurred in her home. The

coach was listed as an additional insured on his mother’s homeowners insurance

policy. We held that an exclusion for injuries arising from an insured’s intentional

acts did not apply to the mother’s liability for negligence. “[T]his is not a situation

where the only tort was the intentional act of one insured, and where the liability

of a second insured, who claims coverage, is merely vicarious or derivative. On

the contrary, [the plaintiff’s] claim against [the mother] clearly depends upon

allegations that she herself committed an independent tort in failing to prevent acts

of molestation she had reason to believe were taking place in her home. Under

such circumstances, she had objective grounds to assume she would be covered, so

long as she herself had not acted in a manner for which the intentional acts

exclusion barred coverage.” (Id. at p. 325.)

In Minkler we did not consider whether the claims involved were

“accidents” under the applicable insurance policies, because the issue was not

raised. (Minkler, supra, 49 Cal.4th at p. 322, fn. 3.) But our reasoning there

establishes that L&M may be covered even though Hecht’s intentional acts were

beyond the scope of its policy. L&M’s allegedly negligent hiring, retention, and

supervision were independently tortious acts, which form the basis of its claim

against Liberty for defense and indemnity. The district court’s ruling was

consistent with Minkler. It did not rely on the fact that Hecht’s conduct was

intentional, but on two other grounds: a causation analysis, and the court’s

reading of case law. Both lines of reasoning were faulty.

6

As to liability insurance coverage, tort principles govern the question of

causation. “In analyzing coverage under a liability policy, a ‘tort approach’

[citation] to causation of damages is precisely what is called for . . . . When the

insurer has promised to indemnify the insured for all ‘sums which the Insured

shall become obligated to pay . . . for damages . . . because of’ nonexcluded

property damage, or similar language, coverage necessarily turns on whether the

damages for which the insured became liable resulted — under tort law — from

covered causes.” (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008,

1035 (Allstate).) This rule applies with equal force to a policy covering liability

for personal injury. (See Delgado, supra, 47 Cal.4th at p. 315.)

Causation is established for purposes of California tort law if the

defendant’s conduct is a “substantial factor” in bringing about the plaintiff’s

injury. (Allstate, supra, 45 Cal.4th at p. 1036; Rutherford v. Owens-Illinois, Inc.

(1997) 16 Cal.4th 953, 968-969; see Judicial Council of Cal., Civ. Jury Instns.

(2018) CACI Nos. 400, 430.) The district court ruled that L&M’s alleged

negligence was, as a matter of law, “too attenuated” from Hecht’s acts of

molestation. It reasoned that L&M’s actions set the chain of events in motion but

did not legally cause Doe’s injuries. That reasoning runs counter to California

cases expressly recognizing that negligent hiring, retention, or supervision may be

a substantial factor in a sexual molestation perpetrated by an employee, depending

on the facts presented. (C.A. v. William S. Hart Union High School Dist. (2012)

53 Cal.4th 861, 876; Evan F. v. Hughson United Methodist Church (1992) 8

Cal.App.4th 828, 835; cf. Rest.3d of Agency, § 7.05; Rest.2d of Agency, § 213.)5



5 We note that the jury instructions issued by our Judicial Council include

“substantial factor” causation as an element of the tort of negligent hiring,

retention, or supervision. The fifth element listed in CACI No. 426 is “[t]hat

[name of employer defendant]’s negligence in [hiring/ supervising/ [or] retaining]

7

Indeed, molestation was the alleged cause of injury in a significant number of

cases based on negligent hiring, retention, or supervision.6

The district court further relied on case law to reject the idea that L&M’s

“intentional acts of hiring, supervising, and retaining [Hecht] are accidents, simply

because the insured did not intend for the injury to occur.” The court cited a

number of authorities, including Delgado, supra, 47 Cal.4th 302. There, the

insured was sued for assault and battery. As part of a settlement, he assigned his

claim against his homeowners insurer to the injured party, Delgado. Delgado

urged that the attack was an “accident” from his point of view because he did not

expect or intend to be assaulted. We rejected the premise of this argument.

“Under California law, the 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 on the insured.” (Delgado, at p. 311, italics added.) Because liability

insurance is a contract between insurer and insured, and the policy is read in light

of the parties’ expectations, the relevant viewpoint is that of the insured rather than

the injured party. (Ibid.)



[name of employee] was a substantial factor in causing [name of plaintiff]’s

harm.” (Italics omitted and added.)

CACI No. 426 is consistent with California case law on the causation

element of Doe’s claim against L&M. (See People v. Morales (2001) 25 Cal.4th

34, 48, fn. 7 [jury instructions are not themselves legal authority, but may

accurately reflect the state of the law].)

6 In addition to the C.A. and Evan F. cases cited above, see John R. v.

Oakland Unified School Dist. (1989) 48 Cal.3d 438, 453; Lopez v. Watchtower

Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591; Z.V. v.

County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe v. Capital Cities

(1996) 50 Cal.App.4th 1038, 1054; Roman Catholic Bishop v. Superior Court

(1996) 42 Cal.App.4th 1556, 1564-1565; Virginia G. v. ABC Unified School Dist.

(1993) 15 Cal.App.4th 1848, 1855.

8

The district court referred to pages 315 and 316 of the opinion in Delgado,

supra, 47 Cal.4th. There we addressed Delgado’s further contention that the

attack was accidental because the insured unreasonably believed he was required

to act in self-defense. We disagreed, holding that such a belief could not convert

the assault, an act that was purposeful and intended to inflict injury, into an

accidental occurrence. We emphasized that the acts of the insured “must be

considered the starting point of the causal series of events, not the injured party’s

acts . . . . The term ‘accident’ in the policy’s coverage clause refers to the injuryproducing

acts of the insured, not those of the injured party. [Citations.] In

determining whether the injury is a result of an accident, taking into consideration

acts or events before the insured’s acts would be illogical and contrary to

California case law. [¶] ‘Any given event, including an injury, is always the

result of many causes.’ (1 Dobbs, The Law of Torts (2001) § 171, p. 414.) For

that reason, the law looks for purposes of causation analysis ‘to those causes

which are so closely connected with the result and of such significance that the

law is justified in imposing liability.’ (Prosser & Keeton on Torts (5th ed. 1984) §

41, p. 264.) In a case of assault and battery, it is the use of force on another that is

closely connected to the resulting injury. To look to acts within the causal chain

that are antecedent to and more remote from the assaultive conduct would render

legal responsibilities too uncertain.” (Delgado, supra, 47 Cal.4th at pp. 315-316.)

In Delgado, the insured’s intentional tortious conduct was the immediate

cause of injury. Here, Hecht’s molestation was the act directly responsible for the

injury, while L&M’s negligence in hiring, retaining, and supervising him was an

indirect cause. Nevertheless, Delgado’s analysis is applicable to our scenario, and

supports L&M’s position. We noted in Delgado that an injury may be the result of

more than one cause. (Delgado, supra, 47 Cal.4th at p. 315.) As discussed above,

a finder of fact could conclude that the causal connection between L&M’s alleged

9

negligence and the injury inflicted by Hecht was close enough to justify the

imposition of liability on L&M. Under Delgado, L&M’s acts must be considered

the starting point of the series of events leading to Doe’s molestation. L&M does

not rely on any event preceding its own negligence to establish potential coverage.

As alleged by Doe, the “ ‘occurrence resulting in injury’ ” began with L&M’s

negligence and ended with Hecht’s act of molestation. (Id. at p. 316.)7

The district court also cited Merced Mutual Ins. Co. v. Mendez (1989) 213

Cal.App.3d 41 (Merced). The insured in Merced was sued for sexual assault. He

claimed his conduct could be considered an “accident” because he mistakenly

believed the victim had consented. He conceded that he intentionally engaged in

the sexual conduct, but urged that he intended no injury. (Merced, at pp. 48, 51.)

The court declined to recognize such a minimalist understanding of the term

“accident.” It explained that “[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 p. 50, italics

added.) In Merced, “[a]ll of the acts, the manner in which they were done, and the

objective accomplished occurred exactly as [the insured] intended. No additional,

unexpected, independent or unforeseen act occurred.” (Ibid.)

The district court’s reliance on Merced was misplaced because it is

distinguishable. First, Merced did not involve a claim of negligent hiring,

retaining, or supervising. Instead, the intentional acts of the insured himself

caused the alleged injury. Second, the argument in support of coverage here is

different from the one rejected in Merced. There, the insured acknowledged that

he intended the acts that caused the injury, but not the injury. Here, L&M argues



7 Any claim alleging negligent hiring by an employer will be based in part on

events predating the employee’s tortious conduct. Plainly, that sequence of events

does not itself preclude liability.

10

that Hecht’s acts were neither intended nor expected from its perspective. Thus,

Merced provides no support for the district court’s conclusion that L&M’s

negligent hiring, retention, and supervision of Hecht cannot be an accident. That

said, Merced’s definition of what constitutes an accident is consistent with

Delgado, and actually favors L&M.8 Even though the hiring, retention, and

supervision of Hecht may have been “deliberate act[s]” by L&M, the molestation

of Doe could be considered an “additional, unexpected, independent, and

unforeseen happening . . . that produce[d] the damage.” (Merced, supra, 213

Cal.App.3d at p. 50.)

The district court also relied on Foremost Insurance Co. v. Eanes (1982)

134 Cal.App.3d 566 (Foremost), but that case is inapposite. The Foremost court

considered the meaning of the term “accident” appearing in a territorial limitation

clause, not a coverage clause. The insureds had loaned a vehicle to friends in

Orange County, and the vehicle was involved in a collision in Mexico. The court

concluded as a matter of “common sense” that the “ ‘accident’ ” occurred in

Mexico for purposes of the territorial limitation. (Id. at p. 571.) Here, however,

we are not concerned with where the accident occurred but with whether there was

an “accident” within the scope of the policy language. For that purpose, “[t]he

term ‘accident’ in the policy’s coverage clause refers to the injury-producing acts

of the insured . . . .” (Delgado, supra, 47 Cal.4th at p. 315.)

Another case cited by the district court, American Empire Surplus Lines

Ins. Co. v. Bay Area Cab Lease (N.D.Cal. 1991) 756 F.Supp. 1287 (American

Empire), is also inapposite. There, the insured taxi cab company sought property



8 The concurring opinion agrees with Merced’s formulation of what

constitutes an accident, but concludes that Merced’s “application of the law [was]

mistaken.” (Conc. opn., post, at p. 6.) The question whether Merced was

correctly decided is, of course, not before us here.

11

insurance coverage for a child molestation committed by one of its drivers at a

school. (Id. at p. 1288.) The relevant policy language covered bodily injury

“caused by an occurrence and arising out of the ownership, maintenance or use of

the insured premises and all operations necessary or incidental thereto.” (Id. at p.

1289, boldface omitted.) The court observed, “[i]t seems clear that this language

was intended to address the typical ‘slip and fall’ case and was not intended to

protect against liability for any and all occurrences which could conceivably arise

out of an insured’s ‘use’ of its premises. Otherwise, this concededly narrower

form of insurance could be extended to cover all aspects of an insured’s business

operations. Nearly all acts could be said to ‘arise out of the use of the insured

premises’ in the sense that all business actions either directly originate from or are

ultimately attributable to the ‘head office.’ If Cab Co. had wanted to be insured

against liability for acts committed by its drivers while off company premises it

could have purchased a comprehensive general liability policy.” (Ibid.) Here,

L&M did purchase a comprehensive general liability policy. American Empire is

also distinguishable because the policy in that case expressly excluded damages

arising from assault. (Id. at p. 1290.)

A brief discussion in American Empire concludes, in dicta, that negligent

hiring cannot be an “accident.” (American Empire, supra, 756 F.Supp. at p.

1290.) The discussion is erroneous. The court relied on Foremost, supra, 134

Cal.App.3d 566, which is not on point for the reasons noted. It also cited two

cases addressing whether an injury that occurs after expiration of the policy period

may be considered the result of a covered “accident” because the insured’s

negligent acts took place during the policy period. In State Farm Mut. Auto. Ins.

Co. v. Longden (1987) 197 Cal.App.3d 226, 233 (Longden), the court held that

while a “potential” for liability arose as a result of the insured’s negligence, there

was no “accident” until the claimant was injured. Similarly, in Maples v. Aetna

12

Cas. & Surety Co. (1978) 83 Cal.App.3d 641, 647-648 (Maples), another triggerof-coverage

case, the court said that “the term ‘accident’ unambiguously refers to

the event causing damage, not the earlier event creating the potential for future

injury . . . .”

Longden and Maples are based on the unremarkable proposition that an

“accident” does not occur until there is an injury. Their reasoning as to negligence

creating a mere potential for damage is relevant in determining whether an

“accident” occurred during the period of an insurance policy’s coverage. But

when damage is inflicted during the policy period, those cases do not support a

finding against coverage for the insured’s earlier negligent conduct. Accordingly,

the American Empire court incorrectly applied Longden and Maples to conclude

that alleged negligent hiring “merely created the potential for injury . . . but was

not itself the cause of the injury.” (American Empire, supra, 756 F.Supp. at p.

1290.) The district court in this case similarly erred by relying on Longden and

Maples to find that “California courts have consistently drawn a distinction

between the immediate circumstances that inflict injury, and the preceding

negligence that sets in motion the chain of events leading to that injury.”9

A focus on the immediate cause of injury was appropriate for purposes of

the territorial limitation in Foremost and the trigger-of-coverage issue in Longden

and Maples. (Foremost, supra, 134 Cal.App.3d at p. 571; Longden, supra, 197

Cal.App.3d at p. 233; Maples, supra, 83 Cal.App.3d at pp. 647-648.) However,

we have long recognized that “[n]o all-inclusive definition of the word ‘accident’



9 The reasoning in Farmer v. Allstate Ins. Co. (C.D.Cal. 2004) 311

F.Supp.2d 884, 892-893, is also faulty. There, the court concluded that a daycare

operator was not entitled to liability coverage for negligent supervision of her

husband, who molested a child in the operator’s care. The Farmer court, like the

American Empire court and the district court here, mistakenly relied on Longden

and Maples.

13

can be given.” (Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co. (1959)

51 Cal.2d 558, 563 (Geddes); see Delgado, supra, 47 Cal.4th at p. 309; Hogan v.

Midland National Ins. Co. (1970) 3 Cal.3d 553, 559 (Hogan).) Context matters in

this area of the law. (See Delgado, at pp. 309, 313, 315.) Factors relevant to the

application of a territorial limitation clause or the resolution of a dispute over

whether an accident occurred during the policy period are not necessarily pertinent

to all coverage questions.

Liberty marshals additional authority in an attempt to rule out coverage for

L&M, but the attempt fails. Geddes was the case from which the Delgado court

drew its definition of “accident” as “ ‘ “an unexpected, unforeseen, or undesigned

happening or consequence from either a known or an unknown cause.” ’ ”

(Delgado, supra, 47 Cal.4th at p. 308, quoting Geddes, supra, 51 Cal.2d at pp.

563-564.) Geddes held that a supplier of aluminum doors was entitled to

insurance coverage for liability stemming from doors that failed unexpectedly

after installation. Liberty contends the Geddes court’s emphasis on the

suddenness of the door failures establishes that damage is only covered if it is

accidental at the time it occurs. (See Geddes, at p. 564.) To the extent Geddes can

be read to support such a rule, it does not help Liberty. At the time Doe was

molested, from L&M’s point of view the event could have been “ ‘an unexpected,

unforeseen, or undesigned happening or consequence’ ” of its hiring, retention, or

supervision of Hecht. (Geddes, at p. 563; see Delgado, at p. 309.)10

Liberty also relies on Hogan, supra, 3 Cal.3d 553. There, a manufacturer

sold a saw that did not cut lumber to the proper dimensions. When a customer



10 As Liberty acknowledges, language in Geddes considering whether an

event is “accidental” from the standpoint of the person injured was discredited by

Delgado, which made it clear that the relevant perspective is that of the insured.

(Delgado, supra, 47 Cal.4th at p. 309; Geddes, supra, 51 Cal.2d at p. 563.)

14

sued, the manufacturer sought coverage from its insurance carrier. The Hogan

court recognized that the policy covered lumber the saw cut too narrowly.

However, it held that coverage did not extend to lumber the customer deliberately

cut wide to compensate for the saw’s imprecision. (Id. at pp. 559-560.)

According to Liberty, Hogan establishes that there is no coverage for an

“accident” if the injury-producing conduct is deliberate. Hogan, however, did not

involve an insured’s independent tort liability for damage deliberately caused by

another tortfeasor, like Hecht in this case. (Cf. Minkler, supra, 49 Cal.4th at p.

325.) The deliberate acts in Hogan were committed by the injured third party:

the customer who elected to cut lumber wider than was required. Here, Doe is the

injured third party, and her conduct is not at issue. Under the principles discussed

in Minkler and Delgado, Hecht’s molestation of Doe may be deemed an

unexpected consequence of L&M’s independently tortious acts of negligence.

Hogan’s holding does not apply.11

We recognize society’s interest in providing an incentive for employers to

take precautions against sexual abuse by their employees. However, the threat of

liability for negligent hiring, retention, and supervision is a significant deterrent

even when insurance coverage is available. We also acknowledge that insurance

does not generally cover intentionally inflicted injuries. But as noted in Minkler,

“the public policy against insurance for one’s own intentional sexual misconduct



11 We acknowledge that Hogan stands in some tension with Delgado’s

declaration that the term “accident” in an insurance policy “refers to the injuryproducing

acts of the insured, not those of the injured party.” (Delgado, supra, 47

Cal.4th at p. 315.) Arguably, the Hogan customer’s intentional act of cutting

lumber wider than required would have been an unexpected consequence from the

perspective of the insured saw manufacturer. (See id. at p. 309.) However,

deliberate acts by an injured claimant present a number of considerations that do

not pertain to deliberate injurious acts by an employee. Given the factual

dissimilarities between this case and Hogan, we have no occasion to revisit its

holding here.

15

does not bar liability coverage for others whose mere negligence contributed in

some way to the acts of abuse. In such cases . . . there is no overriding policy

reason why a person injured by sexual abuse should be denied compensation for

the harm from insurance coverage purchased by the negligent facilitator.”

(Minkler, supra, 49 Cal.4th at p. 327, fn. 4.)

Liberty’s arguments, if accepted, would leave employers without coverage

for claims of negligent hiring, retention, or supervision whenever the employee’s

conduct is deliberate. Such a result would be inconsistent with California law,

which recognizes the cause of action even when the employee acted

intentionally.12 The requirements for liability of this kind are not easily met, but

they are well established.13 Absent an applicable exclusion, employers may

legitimately expect coverage for such claims under comprehensive general

liability insurance policies, just as they do for other claims of negligence.



12 See the molestation cases cited on pages 6 and 7, ante, and also Phillips v.

TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139 (murder), Delfino v.

Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 (cyber harassment),

and Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340

(wrongful death).

The evidence was found insufficient in Z.V. v. County of Riverside, supra,

238 Cal.App.4th at pages 903-904; Delfino v. Agilent Technologies, Inc., supra,

145 Cal.App.4th at page 815; Doe v. Capital Cities, supra, 50 Cal.App.4th at

pages 1054-1055; and Roman Catholic Bishop v. Superior Court, supra, 42

Cal.App.4th at pages 1565-1568. In Phillips v. TLC Plumbing, Inc., supra, 172

Cal.App.4th at pages 1141-1145, the court held that liability did not extend to

injuries inflicted by a former employee. In Mendoza v. City of Los Angeles, supra,

66 Cal.App.4th at page 1341, there was no liability for injury inflicted by an offduty employee in his home. And in Evan F. v. Hughson United Methodist

Church, supra, 8 Cal.App.4th at pages 837-838, the employer was not responsible

for a molestation committed by a third party who had been molested by an

employee.