PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS MICHAEL FRANCIS; 

DANIELLE FRANCIS,

Plaintiffs-Appellants,  No. 12-1563

v.

ALLSTATE INSURANCE COMPANY,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William D. Quarles, Jr., District Judge.

(1:11-cv-01030-WDQ)

Argued: January 30, 2013

Decided: March 7, 2013

Before DAVIS, DIAZ, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Davis wrote the opinion, in which Judge Diaz and Judge Thacker joined. 

COUNSEL

ARGUED: Edward J. Brown, LAW OFFICE OF EDWARD

J. BROWN, LLC, Ellicott City, Maryland, for Appellants.

Ronald Weldon Cox, Jr., MCCARTHY WILSON, LLP,

Rockville, Maryland, for Appellee. ON BRIEF: Thomas Pat-
rick Ryan, MCCARTHY WILSON, LLP, Rockville, Maryland, for Appellee. 

OPINION

DAVIS, Circuit Judge: 

Appellants Thomas and Danielle Francis ("the Francises"

or "Appellants") appeal an order of the district court granting

summary judgment to Appellee Allstate Insurance Company

("Allstate"). In March 2011, Appellants brought this action in

Maryland state court seeking a declaration as to Allstate’s

duty under a renters insurance policy to defend and indemnify

the Francises in a tort suit brought against them, and others,

in the Circuit Court for Frederick County, Maryland. Meanwhile, in the tort suit, the state court entered a final judgment

in favor of all defendants (including the Francises) on April

6, 2011. Thereafter, Allstate filed a Notice of Removal, and

this action was removed to the United States District Court for

the District of Maryland on the basis of diversity jurisdiction.

After the district court denied Appellants’ first motion to

remand, Allstate filed a motion for summary judgment, contending that the Francises’ renters insurance policy, issued in

California, did not provide coverage for the claims asserted in

the underlying tort action. In response, Appellants moved a

second time to remand, now on the ground that (as they

sought only the costs of their defense of the tort suit, rather

than any potential indemnity) the amount in controversy did

not exceed the $75,000 jurisdictional threshold, and thus the

district court lacked subject matter jurisdiction. Appellants

also opposed Allstate’s motion for summary judgment on the

merits. 

On April 18, 2012, the district court denied the second

motion to remand and granted Allstate’s motion for summary

2 FRANCIS v. ALLSTATE INSURANCE COMPANY
judgment, concluding that Allstate did not have a duty to

defend. Francis v. Allstate Ins. Co., 869 F. Supp. 2d 663 (D.

Md. 2012). Appellants filed a timely notice of appeal. For the

reasons that follow, we affirm.

I.

A.

In March 2008, Danielle Francis, a California resident, and

her minor son Thomas were sued by Troy Towers in the Circuit Court for Frederick County, Maryland ("the Underlying

Action"). Towers worked as a Resident Aide at the Maryland

School for the Deaf ("MSD"), which Thomas Francis attended.1

The complaint in the Underlying Action asserted claims of

defamation, invasion of privacy-false light, malicious prosecution, civil conspiracy and intentional infliction of emotional

distress. The complaint alleged that Thomas Francis, with the

assistance of his parents, "made false statements about [Towers], claiming he had sexually abused . . . and assaulted [ ]

Thomas Francis and other students at MSD." J.A. 38. It further averred that the Francises knowingly made the false and

defamatory statements about Towers, or in the alternative,

that they negligently made them. Criminal charges had been

filed against Towers based in part on the alleged statements

but were later dismissed; Towers alleged that the statements

injured his reputation in the community and at MSD, that as

a result of the statements he suffered mental anguish and

humiliation, and that he had been temporarily suspended

without pay from his employment. 

Appellants did not and do not deny making the alleged

statements, but contend that Ms. Francis made them for the

sole purpose of protecting her son and "without intent to slan1We were advised at oral argument that at the time the Underlying

Action was filed, Thomas Francis was a minor; he has now attained his

majority. 

FRANCIS v. ALLSTATE INSURANCE COMPANY 3
der Mr. Towers [ ]or invade his privacy." Appellants’ Br. 3.

Additionally, they argue that Thomas Francis made the statements to school officials, and later to police, "solely for [his

own] protection and not to defame or otherwise harm Mr.

Towers." Id. at 4. 

At the time of the allegedly defamatory statements, the

Francises were insured under a California Renters Policy

("the Policy") issued by Allstate. The Policy covered Danielle

Francis’s residence in Santa Clara, California, and was mailed

to her at that residence. The Policy provided, in relevant part:

Subject to the terms, conditions and limitations of

this policy, Allstate will pay damages which an

insured person becomes legally obligated to pay

because of bodily injury or property damage arising

from an occurrence to which this policy applies, and

is covered by this part of the policy. 

[Allstate] may investigate or settle any claim or suit

for covered damages against an insured person. If an

insured person is sued for these damages, [Allstate]

will provide a defense with counsel of [its] choice,

even if the allegations are groundless, false or fraudulent. [Allstate] [is] not obligated to pay any claim

or judgment after [it] [has] exhausted [its] limit of

liability. 

J.A. 77, Policy at p. 14. 

The Policy defines "occurrence" as:

[A]n accident, including continuous or repeated

exposure to substantially the same general harmful

conditions, during the policy period, resulting in

bodily injury or property damage. 

J.A. 66, Policy at p. 3.

4 FRANCIS v. ALLSTATE INSURANCE COMPANY
"Bodily Injury" is defined as "physical harm to the body,

including sickness or disease, and resulting death . . . ." J.A.

65, Policy at p. 2. "Property Damage" is defined as "physical

injury to or destruction of tangible property, including loss of

its use resulting from such physical injury or destruction."

J.A. 66, Policy at p. 3. 

The Policy also contains a choice-of-law provision which

states: 

This policy is issued in accordance with the laws of

California and covers property or risks principally

located in California. Subject to the following paragraph, the laws of California shall govern any and all

claims or disputes in any way related to this policy.

If a covered loss to property, or any other occurrence

for which coverage applies under this policy happens

outside California, claims or disputes regarding that

covered loss to property, or any other covered occurrence may be governed by the laws of the jurisdiction in which that covered loss to property, or other

covered occurrence happened, only if the laws of

that jurisdiction would apply in the absence of a contractual choice of law provision such as this.

J.A. 89, Policy Endorsement, California Renters Amendatory

Endorsement.

The Francises initiated this action in the Circuit Court for

Frederick County, Maryland, contending that Allstate had a

duty to defend them, under the Policy, against Towers’s suit.

The Complaint for Declaratory Judgment asserted that, in

addition to Towers’s false-light contentions, Towers "sustained bodily injury as a result of the [Francises’] alleged acts

—e.g. impotency." J.A. 9. At the time the declaratory judgment action was filed, the Francises (by their privately

retained counsel) had already filed a motion for summary

FRANCIS v. ALLSTATE INSURANCE COMPANY 5
judgment in the Underlying Action. That motion was granted

on March 16, 2011, and final judgment in favor of all defendants was entered April 6, 2011. At the conclusion of the

Underlying Action, the Francises had expended $66,347 in

attorney’s fees and costs for their defense. 

On April 20, 2011, Allstate timely removed the declaratory

judgment action to the United States District Court for the

District of Maryland on the basis of diversity jurisdiction. The

Francises filed a timely motion to remand the case to state

court on May 19, 2011, contending that the removal was

untimely because the thirty-day time limit for removal had

expired. The district court found the removal timely and

denied the motion to remand. 

Allstate filed a motion for summary judgment in the declaratory judgment action on October 28, 2011, asserting that it

had no duty to defend the Francises because, under California

law, the statements made about Towers did not constitute an

"accident," and therefore claims arising from them were not

covered by the Policy.2 The Francises filed a second motion

to remand the case, which challenged the district court’s subject matter jurisdiction on the basis that the $75,000 amountin-controversy threshold had not been met, and they also substantively challenged Allstate’s denial of coverage of the

Underlying Action.

On April 17, 2012, the district court denied the Francises’

second motion for remand and granted Allstate’s motion for

summary judgment. This timely appeal followed. 

2As previously mentioned, at the time of removal and thereafter, the

Underlying Action had been resolved in favor of the Francises. Thus, as

the parties agree, Allstate’s duty to indemnify the Francises was not at

issue. 

6 FRANCIS v. ALLSTATE INSURANCE COMPANY
II.

This Court reviews the denial of a motion to remand to

state court de novo. Lontz v. Tharp, 413 F.3d 435, 439 (4th

Cir. 2005). Likewise, we review a district court’s grant of

summary judgment de novo, applying the same standard used

by the district court. Reynolds v. Am. Nat’l Red Cross, 701

F.3d 143, 149 (4th Cir. 2012). The Court "view[s] all facts

and reasonable inferences therefrom in the light most favorable to the nonmoving party." T-Mobile Ne., LLC v. City

Council of City of Newport News, Va., 674 F.3d 380, 385 (4th

Cir. 2012) (internal quotations and citations omitted). Under

Federal Rule of Civil Procedure 56(a), summary judgment

should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The

moving party is ‘entitled to judgment as a matter of law’

when the nonmoving party fails to make an adequate showing

on an essential element for which it has the burden of proof

at trial." Maracich v. Spears, 675 F.3d 281, 291 (4th Cir.

2012), cert. granted, 133 S. Ct. 98 (2012).

III.

Appellants first contend the district court erred in rejecting

their jurisdictional challenge because the amount-incontroversy requirement was not met. The removal of a civil

case from state to federal court is governed by 28 U.S.C.

§ 1446. That statute provides: 

(a) Generally. — A defendant or defendants desiring

to remove any civil action from a State court shall

file in the district court of the United States for the

district and division within which such action is

pending a notice of removal signed pursuant to Rule

11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for

removal, together with a copy of all process, pleadFRANCIS v. ALLSTATE INSURANCE COMPANY 7
ings, and orders served upon such defendant or

defendants in such action. 

28 U.S.C. § 1446(a). 

The removability of a case "depends upon the state of the

pleadings and the record at the time of the application for

removal . . . ." Alabama Great S. Ry. Co. v. Thompson, 200

U.S. 206, 216 (1906); Pullman Co. v. Jenkins, 305 U.S. 534,

538 (1939). If diversity of citizenship, under 28 U.S.C.

§ 1332(a), provides the grounds for removal, then "the sum

demanded in good faith in the initial pleading shall be deemed

to be the amount in controversy . . . ." 28 U.S.C. § 1446(c)(2).

If a complaint "does not allege a specific amount of damages,

the removing defendant must prove by a preponderance of the

evidence that the amount in controversy exceeds [$75,000]."

De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). "In

actions seeking declaratory or injunctive relief, it is well

established that the amount in controversy is measured by the

value of the object of the litigation." Hunt v. Washington State

Apple Adver. Comm’n, 432 U.S. 333, 347 (1977); McNutt v.

Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 181

(1936) (noting the "principle that jurisdiction is to be tested

by the value of the object or right to be protected against

interference"). 

Here, when Allstate filed its Notice of Removal, according

to the state court complaint, the object of the litigation was the

Francises’ request that Allstate defend and/or indemnify them

in the Underlying Action for defamation and related torts.

Despite the fact that by the time Allstate removed the case to

federal court, indemnity was no longer at issue, the relief

requested in the declaratory judgment complaint specifically

included the costs and expenses to be incurred in the declaratory judgment action as well as defense costs in the Underlying Action. Nevertheless, Appellants now contend that the

only amount that ought to be considered in ascertaining

whether the amount in controversy exceeds $75,000 is the

8 FRANCIS v. ALLSTATE INSURANCE COMPANY
total of the attorney’s fees incurred in defending against the

Underlying Action. They contend that the costs of pursuing

this declaratory judgment action are "not a part of the amount

of controversy calculation as they are not recoverable by statute or contract provision," and "even if they were, a fact finding hearing would need to be conducted, to determine if the

costs would exceed the $6,000 gap [between the defense costs

for the Underlying Action and the $75,000 threshold]."

Appellants’ Br. 25, n.3. In other words, Appellants argue

(with insight flowing from 20-20 hindsight) that the sole

object of this litigation was the $66,347 expended by the

Francises to defend against the Underlying Action. Allstate

asserts, to the contrary, that the value of the attorney’s fees

likely to be incurred throughout the declaratory judgment

action should also be included in the amount-in-controversy

calculation. 

Generally, attorney’s fees are not included in the amountin-controversy calculation, but courts have created two exceptions to this rule: "(1) if the fees are provided for by contract;

or (2) if a statute mandates or allows payment of attorney’s

fees." 15-102 Moore’s Federal Practice, Civil

§ 102.106(6)(a). 

Appellants brought their declaratory judgment action under

the Maryland Uniform Declaratory Judgment Act.3 With

regard to the availability of attorney’s fees in a declaratory

judgment action, the Maryland Court of Appeals has held

[A]n insurer is liable for the damages, including

attorneys’ fees, incurred by an insured as a result of

the insurer’s breach of its contractual obligation to

3The Maryland Uniform Declaratory Judgment Act provides: 

Except for the District Court, a court of record within its jurisdiction may declare rights, status, and other legal relations whether

or not further relief is or could be claimed . . . . 

Md. Code Ann., Cts. & Jud. Proc. §3-403. 

FRANCIS v. ALLSTATE INSURANCE COMPANY 9
defend the insured against a claim potentially within

the policy’s coverage, and this is so whether the

attorneys’ fees are incurred in defending against the

underlying damage claim or in a declaratory judgment action to determine coverage and a duty to

defend.

Bankers & Ship. Ins. v. Electro Enter., 415 A.2d 278, 282

(Md. 1980). Additionally, under the Maryland Declaratory

Judgment Act, "further relief based on a declaratory judgment

or decree may be granted if necessary or proper." Md. Code

Ann., Cts. & Jud. Proc. §3-412. 

The district court reviewed the above authorities bearing on

the Maryland courts’ position on attorney’s fees in declaratory

judgment suits and concluded that "[w]hen Maryland law permits recovery of attorneys’ fees, ‘[p]otential attorneys’ fees

should be considered in determining whether the amount in

controversy in a diversity action exceeds the jurisdictional

threshold.’" Francis, 869 F. Supp. 2d at 669 (citing Gilman

v. Wheat, First Sec., Inc., 896 F. Supp. 507, 511 (D. Md.

1995) (finding that a claim for relief under the Maryland

Securities Act authorizes recovery of attorney’s fees in certain

situations, and concluding that potential attorney’s fees should

be considered in the amount-in-controversy determination)).

After considering the $66,347 expended in the Underlying

Action, the district court concluded that "[e]xperience and

common sense suggest that the Plaintiffs’ attorneys’ fees in

[the declaratory judgment] case will exceed $8,653 — the difference between $75,000 and the $66,347 the Plaintiffs spent

in Towers’s lawsuit." Francis, 869 F. Supp. 2d at 670. We

agree.

We also agree with the district court that, as Maryland case

law allows for the recovery of attorney’s fees in declaratory

judgment actions, the attorney’s fees in the Francises’ action

are properly considered in the amount-in-controversy calculation here. As the complaint in this action did not seek a spe10 FRANCIS v. ALLSTATE INSURANCE COMPANY
cific amount in damages, Allstate need only "prove by a

preponderance of the evidence that the amount in controversy

exceeds the [jurisdictional minimum]." De Aguilar, 11 F.3d at

58. 

As the district court noted, "[t]his action involves federal

jurisdiction, contract interpretation, and choice of law issues

that were not addressed in the underlying tort action." Francis, 869 F. Supp. 2d at 670. The complexity of the case is sufficient to establish that it is more likely than not that the

attorney’s fees likely to be incurred by Appellants in this

declaratory judgment action, when coupled with the amount

they expended to defend the tort action, will exceed the jurisdictional threshold. Thus, the district court did not err in its

rejection of the Appellants’ jurisdictional challenge.4

IV.

Appellants’ challenge to the merits of the district court’s

coverage determination rests primarily on their contention

that Maryland law, rather than California law, applies to the

issue of contract interpretation.5 We reject that contention and

affirm the district court’s application of California law for the

reasons set forth within.

A.

A federal court sitting in diversity is required to apply the

substantive law of the forum state, including its choice-of-law

rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,

496-97 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79

(1938). Maryland courts have "long recognized the ability of

contracting parties to specify in their contract that the laws of

4Tellingly, Appellants had not raised the amount-in-controversy issue in

their initial motion to remand. 

5There is no dispute between the parties that, as to issues of tort liability

possibly relevant to the Underlying Action, Maryland law would apply. 

FRANCIS v. ALLSTATE INSURANCE COMPANY 11
a particular State will apply in any dispute over the validity,

construction, or enforceability of the contract." Jackson v.

Pasadena Receivables, Inc., 921 A.2d 799, 803 (Md. 2007).

Such choice-of-law provisions "trump the conflict of law

rules that otherwise would be applied by the court." Id.

The Policy’s choice-of-law provision called for the application of California law, unless a covered occurrence took place

outside of California, in which case

claims or disputes regarding that covered loss to

property, or any other covered occurrence may be

governed by the laws of the jurisdiction in which

that covered loss to property, or other covered occurrence happened, only if the laws of that jurisdiction

would apply in the absence of a contractual choice

of law provision such as this. 

J.A. 89, Policy Endorsement, California Renters Amendatory

Endorsement. Thus, Maryland law applies to the issue of

whether Allstate had a duty to defend the Francises if Maryland law would apply without the choice-of-law provision in

the Policy. 

B.

Maryland courts follow the doctrine of lex loci contractus

when interpreting insurance contracts and determining which

state’s law governs.6 Allstate Ins. Co. v. Hart, 611 A.2d 100,

6Appellants contend that the district court erred in finding that the

Maryland doctrine of lex loci contractus required the application of California law. They assert that the doctrine of renvoi should have been

applied. 

The doctrine of renvoi provides that "when the forum court’s choice-oflaw rules would apply the substantive law of a foreign jurisdiction to the

case before the forum court, the forum court may apply the whole body

of the foreign jurisdiction’s substantive law including the foreign jurisdic12 FRANCIS v. ALLSTATE INSURANCE COMPANY
101 (Md. 1992). The doctrine requires courts to apply the law

of the jurisdiction where the contract was made to determine

questions of its validity and construction. Id. Where the contion’s choice-of-law rules." Am. Motorists Ins. Co. v. ARTRA Group, Inc.,

659 A.2d 1295, 1302 (Md. 1995). 

Under a "limited renvoi exception," Maryland courts "avoid the irony

of applying the law of a foreign jurisdiction when that jurisdiction’s conflict of law rules would apply Maryland law." Id. at 1304. In such a situation, Maryland courts apply Maryland substantive law to agreements

entered in foreign jurisdictions, notwithstanding the lex loci contractus

doctrine, when 

(1) Maryland has the most significant relationship, or, at least, a

substantial relationship with respect to the contract issue presented; and 

(2) The state where the contract was entered into would not apply

its own substantive law, but instead would apply Maryland substantive law to the issue before the court. 

Id.

Applying this two-part test to the facts here demonstrates the inappropriateness of invoking renvoi. First, although the events that led to the filing of the Underlying Action took place in Maryland, the contract issue

presented is whether Allstate had a duty to defend the Francises based on

the terms of a contract that was made in California. Not only does Maryland not have the most significant relationship to the issue of whether Allstate has a duty to defend under a California contract, it has virtually no

relationship to it other than the fact that the event that triggered the

attempt to enforce the duty happened to take place in Maryland. Accordingly, application of the first prong does not weigh in favor of renvoi. 

As for the second prong, Appellants provide no support for the proposition that, in the face of a choice-of-law provision in the Policy that dictated California law to govern any disputes arising under the agreement,

California would not apply its own substantive law but would instead

apply Maryland substantive law. 

As neither of the two prongs of the test for application of the limited

doctrine of renvoi is met here, the controlling doctrine is lex loci contractus. Thus, the district court correctly determined that California law governs the issue of contract interpretation in this case, i.e., whether Allstate

owed the Francises a duty to defend under the Policy. 

FRANCIS v. ALLSTATE INSURANCE COMPANY 13
tract is "made" is defined as "‘where the last act is performed

which makes [the] agreement a binding contract.’" Sting Sec.

Inc. v. First Mercury Syndicate, Inc., 791 F. Supp. 555, 558

(D. Md. 1992) (quoting Travelers Indem. Co. v. Allied-Signal,

Inc., 718 F. Supp. 1252, 1253 (D. Md. 1989)). When the contract is an insurance policy, this is usually "the state in which

the policy is delivered and the premiums are paid." Aetna

Cas. & Sur. Co. v. Souras, 552 A.2d 908, 911 (Md. Ct. Spec.

App. 1989). 

Here, Danielle Francis resides in California, and the Policy

was mailed to her California home.7 Danielle Francis also

made premium payments while living in California. Thus,

according to Maryland’s lex loci contractus rule for choiceof-law decisions, California law governs the analysis of

whether Allstate had a duty to defend the Francises in the

Underlying Action. 

C.

Appellants argue that even if the district court did not err

in holding that California law applies, Allstate nonetheless

owed the Francises a duty to defend under the Policy. We disagree with Appellants’ argument.

In California, "‘[t]he duty to defend [under a liability insurance contract] is determined by reference to the policy, the

complaint, and all facts known to the insurer from any

source.’" Montrose Chem. Corp. v. Superior Court, 861 P.2d

1153, 1161 (Cal. 1993) (emphasis in original). More particularly, as noted by the district court, under the terms of the Policy, in order to establish Allstate’s duty to defend, the

Francises were required to demonstrate that "the action arose

from an ‘accident’ and sought damages for ‘bodily injury’ or

7

It appears the parties have never suggested that Thomas Francis’s temporary residence in Maryland as a student at the MSD bears on either the

jurisdictional or the substantive issues presented in this case. 

14 FRANCIS v. ALLSTATE INSURANCE COMPANY
[‘]property damage.[’]" Francis, 869 F. Supp. 2d at 672 (citing Allstate Ins. Co. v. LaPore, 762 F. Supp. 268, 270 (N.D.

Cal. 1991)). 

On appeal, the Francises contend that the statements made

about Towers, although made voluntarily, were not made with

the intent to "deliberately hurt Mr. Towers," but rather with

the intent to "trigger the school’s intervention." Appellants’

Br. 19. They argue that the district court incorrectly focused

on the fact that the statements were intentionally made when

it held that no "accident" occurred. 

Allstate responds that, under California law, "an insured’s

intentional acts do not become ‘accidental’ merely because he

did not intend to cause harm"; rather, "California courts have

held for nearly a half century that the term ‘accident’ applies

to the insured’s act itself, not the consequences of that act."

Appellee’s Br. 36. (Emphasis in original).

The Supreme Court of California has defined "accident," as

used in insurance policies, as "‘an unexpected, unforeseen, or

undesigned happening or consequence from either a known or

unknown cause.’" Hogan v. Midland Nat’l Ins. Co., 476 P.2d

825, 828 (Cal. 1970) (quoting Geddes & Smith, Inc. v. St.

Paul-Mercury Indem. Co., 334 P.2d 881, 884 (Cal. 1959)).

The California Court of Appeal has instructed that "‘[t]he definition of "accident" halts any argument that [the insured]

intended his act but not the resulting harm.’" Commercial

Union Ins. Co. v. Superior Court of Humboldt County, 242

Cal. Rptr. 454, 456 (Cal. Ct. App. 1987) (quoting Royal

Globe Ins. Co. v. Whitaker, 226 Cal. Rptr. 435, 438 (Cal. Ct.

App. 1986)). 

California courts construing policies with provisions similar to those in the Allstate policy have repeatedly held that

intentional acts are not "accidents," and have found insurers

not liable for intentional conduct of their insureds. Illustrative

is Merced Mut. Ins. Co. v. Mendez, in which the California

FRANCIS v. ALLSTATE INSURANCE COMPANY 15
Court of Appeal considered, in a declaratory judgment action,

whether Merced Mutual had an obligation to defend or

indemnify its insured in a suit brought against him for damages resulting from having engaged in sexual activities with

a coworker. 261 Cal. Rptr. 273 (Cal. Ct. App. 1989). The

plaintiff in the underlying tort suit alleged that the insured

sexually assaulted her several times at their workplace. The

insured contended that the sexual encounters were consensual.

The policy covered suits against the insured for "damages

because of bodily injury or property damage caused by an

occurrence." Id. at 275. "Occurrence" was defined as "an accident, including exposure to conditions, which results, during

the policy period, in: [ ] a bodily injury; or [ ] property damage." Id.

The Mendez court held the conduct was not covered

because "[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 279. The court emphasized: 

where the insured intended all of the acts that

resulted in the victim’s injury, the event may not be

deemed an ‘accident’ merely because the insured did

not intend to cause injury. 

Id.

As Mendez and numerous other cases demonstrate, under

California law, "‘[w]hatever the motivation,’ because [the

Francises’] conduct was ‘calculated and deliberate’ . . . it was

not an ‘accident’ and thus not an ‘occurrence’ within the

meaning of the policy provision." Id. at 280 (quoting Hogan,

476 P.2d at 828-29).

Appellants rely heavily on an outlier from this line of decisions, namely, an opinion of a California federal district court.

See Allstate Ins. Co. v. Vavasour, 797 F. Supp. 785 (N.D. Cal.

16 FRANCIS v. ALLSTATE INSURANCE COMPANY
1992). In Vavasour, in an action for a declaratory judgment,

the district court considered whether Allstate had a duty to

defend or indemnify its insureds in a suit for trespass that was

pending in California state court. Id. The court called the case

a "close question," but concluded that because under California law, a person can be liable for trespassing for conduct that

is "either negligent, reckless or intentional, or the product of

ultrahazardous activity . . . , [t]respass is not merely an intentional tort" and thus an alleged trespass may be an accident in

the "absence of intent to trespass . . . ." Id. at 788. The Vavasour court denied Allstate’s claim that it had no duty to

defend because the insureds’ conduct (driving in and out of a

driveway they believed was their own) was intentional. In so

holding, the court distinguished cases cited by Allstate on the

basis that the Vavasour’s conduct "may not have been inherently wrongful and, indeed, may have been devoid of intent

or even knowledge . . . ." Vavasour, 797 F. Supp. at 788. 

Appellants’ focus on Vavasour is unpersuasive. The decision in Vavasour has been described as "the only California

case failing to recognize th[e] principle" that the fact that conduct is intentional is dispositive of the question of whether an

"accident" occurred. Collin v. Am. Empire Ins. Co., 26 Cal.

Rptr. 2d 391, 404 (Cal. Ct. App. 1994).8

Thus, Vavasour stands alone. The consistently followed

rule under California law is that intentional conduct is not

"accidental" even if the resulting injury is wholly unintended.

The Francises clearly intended to make the statements at issue

in the Underlying Action; indeed, they hoped, as they concede, that the statements would translate into action on the

part of the school (as they did in fact). The actions were intentional, and under California law, non-accidental. 

8The judge who authored Vavasour "promptly issued a new ruling in

Bailey v. State Farm, [810 F. Supp. 267 (N.D. Cal. 1992)], which reaffirms the principle adopted in every other California decision." Collin v.

Am. Empire Ins. Co., 26 Cal. Rptr. 2d 391, 404 (Cal. Ct. App. 1994). 

FRANCIS v. ALLSTATE INSURANCE COMPANY 17
V.

For the foregoing reasons, we affirm the judgment of the

district court. 

AFFIRMED

18 FRANCIS v. ALLSTATE INSURANCE COMPANY