Conspiracy to Abduct Not Covered

Custody battles oftentimes give rise to insurance coverage questions. A common scenario that arises in domestic dispute situations involves one spouse abducting their child or children from the other spouse who has custody. When there is ensuing civil litigation the question becomes whether the abducting spouse was engaged in accidental conduct that would trigger a covered “occurrence” under a homeowner’s policy. The play out of that type of coverage issue is seen in the recent California Appellate Court decision of Upasani v. State Farm General Ins. Co., 227 Cal.App.4th 509 (Cal. App. 2014).

In Upasani, an underlying lawsuit was brought against the insureds alleging that they conspired with a mother to abduct her child from the father’s custody. The underlying complaint contained allegations of negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. It was alleged that the insureds, the Upasanis, conspired with the mother to abduct the mother’s infant son and to take that infant son to India. During the pendency of the underlying case, the insureds tendered the defense to State Farm. State Farm denied coverage asserting that none of the allegations against the Upasanis arose out of accidental conduct; therefore, there was no occurrence and no duty to defend or indemnify. The involved policies used a standard definition of occurrence which was “an accident” that resulted in bodily injury or property damage during the policy period. The insureds acknowledged that in the underlying lawsuit all of the allegations involved intentional, purposeful and non-accidental conduct on the insureds’ part. Specifically, the plaintiff husband alleged that his wife had abducted their infant son and had hid him from the father for almost 18 years with the knowledge and help of the Upasanis, among others.

Analyzing the “occurrence” issue, the Court found that the underlying action alleged in the complaint or claimed in discovery non-accidental, intentional, and purposeful actions. Specifically, the father had alleged that the Upasanis and the other defendants were co-conspirators in the abduction of the father’s son. In analyzing the conspiracy claim, the Court noted that a fundamental predicate for any conspiratorial agreement was the knowledge on the part of the alleged conspirators of the unlawful objective and their intent to aid in achieving that objective. Turning to the negligence claims (negligence per se and negligent infliction of emotional distress), the Court noted that while the allegations did sound in negligence, the actual factual allegations regarding those causes of action, and the evidence supporting them, showed that the conduct the Upasanis were alleged to have committed was intentional conduct.

Although the jury in the underlying lawsuit returned a special verdict in favor of the Upasanis, the Appellate Court found that the special verdict did not make an express finding, nor result in an implied finding, that there was an accidental occurrence that would trigger coverage. The jury concluded that the Upasanis were not aware that the mother had planned to abduct her infant son. Based on that finding, the conspiracy could not be proven and therefore the jury returned its verdict in favor of the Upasanis. The Court found, however, that the special verdict did not create an implied finding that the Upasanis’ conduct was accidental and, therefore, would have constituted an occurrence under the State Farm policies. Given the allegations in the father’s complaint, the discovery materials provided to State Farm and, ultimately, the testimony at trial, there were two different options as to the Upasanis’ conduct—either they conspired to abduct the infant son, or they did not; accidental or negligent participation in the abduction of the child was not a possible conclusion.

The California Appellate Court’s conclusion that when all of the factual allegations supporting various legal theories are admittedly intentional and non-accidental, the causes of actions asserted (theory of recovery) become less important in determining the duty to defend and indemnify. Mere allegations of negligence which are only supported by factual allegations of intentional misconduct may not be covered notwithstanding the negligence allegations. In this case, the California Court looked at all of the facts and found that they were consistent in establishing non-accidental conduct. Therefore, it did not matter what the allegations were, the duty to defend would be decided by the facts and if those facts did not support the charging allegations the Court would not require the insurer to defend. A correct result but one that is rarely seen in the case law because courts often defer to the theory of the pleadings as opposed to the facts.