Q: An insurance policy covers bodily injury "caused by an occurrence," and defines "occurrence" as an "accident." Does the policy cover an injury caused by conduct that was deliberate but not intended to cause injury?
Q: Does the result change if the injury was caused by one friend punching another in the groin as part of a tradition of consensual "horseplay" of this kind?
A: Um, no.
Q: What if —
Or at least that's what the California Court of Appeal held.
Unsurprisingly, alcohol was involved in this matter, although more surprisingly, it also involved a tradition of groin-punching. The lawsuit arose from the parties' attendance at a baseball game at which the defendant (Mr. Frake) allegedly became "very intoxicated." After leaving the game, the plaintiff (Mr. King) "tried to strike Frake in the groin, but Frake blocked the attempt. Shortly thereafter, Frake retaliated … and struck King in the groin." The complaint alleged that Frake struck King with a "closed fist," whereupon "Defendant FRAKE laughed triumphantly in having achieved a direct hit to Plaintiff's testicles, while he screamed various swear words …."
King later alleged that he had suffered injuries to said testicles, injuries that sound serious but frankly any injury of that kind is going to sound serious to me. Maybe they were serious, because the case went to trial and a jury awarded King's testicles over $200,000 each. State Farm had defended the case, reserving its rights to argue that its policy did not cover this "occurrence," and the opinion in State Farm v. Frake resulted from this later dispute.
According to the opinion, State Farm's investigation included a conversation with Frake's mom, who "stated that Frake, King and their friends had a 'tradition' of 'grabbing each other's testicles.' [Parents] had repeatedly warned their children against engaging in such conduct because they feared 'someone might get hurt,' [but] the 'behavior continued.'" Frake confirmed this tradition, which he referred to as a "cycle of horseplay," or as he described it at trial, "testicular tagging":
During this 'consensual' ritual, one person would normally try to 'slap or hit [another person] in . . .the groin area,' and the recipient would then 'attempt to return [the slap or hit].' According to Frake, the practice was so common that his friends would 'greet each other with a one-arm hug,' while covering their 'groin area' with the other arm for 'protection in case [someone] decided to . . . instigate th[e] horseplay." Frake stated that [he] and his friends had, 'per usual,' been engaging in 'horseplay . . . [that] continued throughout the whole weekend."
Frake conceded that he had attempted to "horseplay" but denied he had used a closed fist or intended to cause injury, and (less believably) denied that the groin strike was even "intentional," at least in the sense meant by the policy. He cited a 2008 case holding that "accident" can include instances in which an injury is an "unexpected or unintended consequence of the insured's conduct," and the trial court agreed that under that authority, State Farm had a duty to defend.
The Court of Appeal did not agree. It distinguished the 2008 case, in which the defendant had been trying to throw the plaintiff into a pool but didn't throw him far enough. Here, the court pointed out, there was no "intervening unintended act" between the groin-punching and the injury. More importantly, that case is likely wrong, because, as a more recent one clarified, California law states that the relevant question is whether the act, not the injury, was "accidental." Here, the groin-punching was not accidental, nor was the "testicular tagging" itself. "Indeed," the court noted, "by targeting the area of King's groin, it was completely foreseeable and expected that Frake might strike King's testicles, as apparently had happened numerous times in the past." The court ordered judgment to be entered for State Farm.
Please be on notice, gentlemen of America, that the rituals of consensual horseplay that we have evolved (or failed to evolve away from) over the past two million years should not include punching a friend in the groin. Triumphant laughter and the screaming of swear words remain viable options.