An appellate court in California, affirming a trial court's decision, has ruled that two people who protect the feral cat population at a college were not entitled to a defense under their homeowners' insurance policy in a lawsuit that alleged causes of action for invasion of privacy, stalking, intentional infliction of emotional distress and assault.

The Case

Leslie Abrahams and Hal Gosling protect the feral cat population at California State University, Long Beach (CSULB) by maintaining feeding stations around the campus. Scott Miller, who lives adjacent to CSULB, frequently walks, jogs and rides his bicycle through the campus with his dog and young children.

In a lawsuit Miller filed against Abrahams and Gosling, Miller alleged that Abrahams stopped him at CSULB and demanded that he not walk his dog on the campus; that she confronted him and his son as they walked their dog on CSULB's campus and that she berated him, told him she represented CSULB and said he was not welcome on the campus with his dog, and that she threatened that the campus cat club was going to “take care of him.”

Miller also alleged that, on multiple occasions, Abrahams and Gosling drove their car toward Miller and his sons in a threatening manner as they walked or biked with their dog on the CSULB campus. He also alleged that Abrahams and Gosling repeatedly followed and stared down Miller and his sons and videotaped Miller and his family at their home and at CSULB. According to Miller, Abrahams also charged up to Miller in a post office parking lot, berated Miller's wife and son as they exited a local Sears store and contacted Miller's son's daycare provider to report that Miller was emotionally unstable, a danger to the community and a threat to the daycare provider's cats.

Miller sought damages for stalking, invasion of privacy, assault, defamation, negligent infliction of emotional distress and intentional infliction of emotional distress.

Abrahams and Gosling reported the suit to their homeowners insurance carrier, Allstate Insurance Company, which denied coverage. They sued Allstate and moved for summary adjudication on the issue of whether Allstate owed a duty to defend them against the Miller lawsuit.

The trial court granted Allstate's motion for summary judgment, finding that because the insureds' alleged conduct was deliberate, no accident had occurred that triggered Allstate's duty to defend. They appealed.

The policy

The policy provided coverage for:

damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence.

The policy defined “occurrence” as:

an accident … resulting in bodily injury or property damage.

The Appellate Court's Decision

The appellate court affirmed, finding that Allstate had established that Miller's claims did not arise out of an accident within the meaning of the policy insuring Abrahams and Gosling. The appellate court pointed out that Miller's complaint detailed the insureds' “deliberate course of conduct to approach and engage Miller in their efforts to protect the feral cat population on CSULB's campus.” This “deliberate conduct,” the appellate court ruled, “directly caused Miller's alleged injury.” The appellate court acknowledged that the insureds contended that they did not intend to threaten, frighten, or intimidate Miller, but ruled that their “peaceable motivation” did not transform their actions into accidental conduct. It stated:

“Although it was undisputed [the insureds] did not wish to harm Miller and the alleged result of their acts surprised them, it [was] also undisputed the acts were deliberate.”

In conclusion, the appellate court rejected the insureds' argument that Miller's cause of action for negligent infliction of emotional distress required that they be provided a defense, noting that the facts alleged by Miller, not the “theories Miller proffered,” controlled his right to recovery and thus defined the scope of Allstate's duty.

The case is Abrahams v. Allstate Ins. Co., No. B244643 (Cal. Ct.App. Feb. 6, 2014). Attorneys involved include: John K. Saur for Plaintiffs and Appellants; Lewis Brisbois Bisgaard & Smith, Richard B. Wolf, Gerard A. Lafond, Raquel Vidal for Defendant and Respondent.

Originally published on FC&S Legal: The Insurance Coverage Law Information Center. FC&S Legal is the industry's ONLY single-source, comprehensive portal developed specifically for insurance coverage law professionals. To find out more, visit www.fcandslegal.com. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. If legal advice is required, the services of a competent professional person should be sought.

Special Reports /

The Case, the Policy and the Decision: No Defense for Feral Cat Protectors

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