                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 15 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CARLY KOGLER,                                   No.    18-15298

                Plaintiff-Appellant,            D.C. No.
                                                3:16-cv-00534-JD
 v.

STATE FARM GENERAL INSURANCE                    MEMORANDUM*
COMPANY,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    James Donato, District Judge, Presiding

                    Argued and Submitted September 10, 2019
                            San Francisco, California

Before: WALLACE, BEA, and FRIEDLAND, Circuit Judges.

      Plaintiff-Appellant Carly Kogler appeals from the district court’s summary

judgment in favor of Defendant-Appellee State Farm General Insurance Company

(State Farm). Kogler contends that the “loss” caused by Daniel Frank’s acts were

covered under the “accident” and the “personal injury” provisions of insurance

policies issued by State Farm, that State Farm breached its duties to defend and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
indemnify Frank by declining to do so as to Kogler’s claims against him, and that

State Farm is therefore liable for the default judgment that Kogler obtained against

Frank.

      Frank’s acts do not constitute an “accident” under the Homeowner’s Policy

or Umbrella Policy because, under California law, an “accident” is defined in

liability policies as an “unexpected” or “unforeseen” happening. Delgado v.

Interinsurance Exch. of the Auto. Club, 211 P.3d 1083, 1091 (Cal. 2009). It is

entirely expected and foreseen that grabbing and dragging a person by the hair will

injure her. Whether Frank intended to harm Kogler is irrelevant because he

intended to commit the acts that caused her injuries. See Quan v. Truck Ins. Exch.,

79 Cal. Rptr. 2d 134, 143-44 (Ct. App. 1998).

      The Umbrella Policy also excludes coverage for personal injuries “when the

insured acts with specific intent to cause any harm.” An exclusion for acts

“expected or intended” by the insured are “identical in meaning and effect with the

statutory language” in section 533. State Farm Fire & Cas. Co. v. Estate of

Jenner, 874 F.2d 604, 606 (9th Cir. 1989). Intent has its ordinary meaning to

“have in mind some purpose or design.” Shell Oil Co. v. Winterthur Swiss Ins.

Co., 15 Cal. Rptr. 2d 815, 834 (Ct. App. 1993) (citation omitted). Intent refers to a

“sense of results desired, purposefully sought, or brought about by design.” Id.

An insured has a specific intent to cause harm if he “subjectively wanted” the


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injury to be a “result of his conduct.” Id. at 835–36 (emphasis omitted) (quoting

Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2 888, 892 (Me. 1981)).

       Frank’s guilty pleas to general intent crimes do not alone establish that he

intended to cause her injuries. See Allstate Ins. Co. v. Overton, 206 Cal. Rptr. 823,

827–28 (Ct. App. 1984). But the stipulated facts reveal Frank grabbed and pulled

Kogler’s hair from behind with such force that she was lifted from the ground,

before dragging her through the grass toward a grove of trees. Intentional and

willful conduct is evidence that an insured intended to cause harm. See J. C.

Penney Cas. Ins. Co. v. M. K., 804 P.2d 689, 699 (Cal. 1991) (“For example, an

insured may intentionally shoot another person in the head at point blank range.

Obviously, the insured (if he is sane) intends to injure”). Frank’s admissions to

committing aggravated assault, battery, and false imprisonment, together with the

other stipulated and pleaded facts, establish that Frank intended to cause Kogler’s

injuries.

       Frank’s voluntary intoxication and inebriated state does not negate his

specific intent. Even though the California Supreme Court has not yet resolved

this question, Jacobs v. Fire Insurance Exchange, 42 Cal. Rptr. 2d 906 (Ct. App.

1995), is strongly persuasive. See Owen ex rel. Owen v. United States, 713 F.2d

1461, 1464 (9th Cir. 1983) (“In the absence of a pronouncement by the highest

court of a state, the federal courts must follow the decision of the intermediate


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appellate courts of the state unless there is convincing evidence that the highest

court of the state would decide differently” (quoting Andrade v. City of Phoenix,

692 F.2d 557, 559 (9th Cir. 1982))).

      In Jacobs, the court concluded that an act done under compulsion of an

irresistible impulse was not willful under section 533. See Jacobs, 42 Cal. Rptr. 2d

at 924. The court distinguished between cognitive capacity, which is to “know the

nature of one’s actions,” and volitional capacity, which is to “be able to control

one’s conduct.” Id. at 910 n.3. Limiting its holding to the latter, Jacobs held that

“volitional incapacity, or an ‘irresistible impulse’ does not negate a ‘willful act’

under section 533 where the insured retains cognitive capacity.” Id. at 908. In

support of this conclusion, Jacobs cited to a study by the American Psychiatric

Association concluding that insanity defenses include only those severely

abnormal mental conditions “that are not attributable primarily to the voluntary

ingestion of alcohol or other psychoactive substances.” Id. at 923.

      By concluding that the insured’s conduct was inherently harmful under

section 533, Jacobs did not reach the specific intent component of section 533.

See id. at 913 n.8. Nonetheless, Jacobs necessarily implied that volitional capacity

is not required for an act to be “willful” under section 533, even where an insurer

must prove specific intent to cause harm. See id. Because section 533 informs the

meaning of the policy exclusion, volitional incapacity caused by voluntary


                                           4
intoxication does not negate an insured’s specific intent under California law.

      Finally, there is no genuine dispute of fact that Frank possessed cognitive

capacity. Frank pleaded guilty to and was convicted of aggravated assault. Frank

therefore admitted to committing conduct such that a reasonable person would

have “realize[d] that a battery would directly, naturally and probably result from

his conduct.” People v. Williams, 29 P.3d 197, 203 (Cal. 2001). There was no

evidence in the record showing Frank was insane or that he was acting in self-

defense. Accordingly, Frank knew the nature of his conduct.

      For these reasons, the Umbrella Policy excludes State Farm’s coverage of

Frank’s acts. Accordingly, the district court’s grant of summary judgment in favor

of State Farm is

      AFFIRMED.




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