Horace Mann Insurance v. Barbara B.

— Barbara B. appeals from a judgment declaring Horace Mann Insurance Company (Horace Mann) has no obligation to indemnify its insured, Gary Lawrence Lee, for a judgment of more than $500,000, entered against him in Barbara’s 1991 civil action arising out of Lee’s misconduct while he was her junior high school teacher.

We have seen this coverage case before. The first time around, we affirmed a summary judgment in favor of Horace Mann, finding as a matter of law the insurer had no duty to defend Lee, who had entered a plea of nolo contendere to one count of criminal sexual molestation of his thirteen-year-old student. (Pen. Code, § 288, subd. (a).) Relying on J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009 [ 278 Cal.Rptr. 64 , 804 P.2d 689 ] [liability insurer owes no duty to indemnify insured for damages arising out of child molestation]), we concluded none of Barbara’s claims raised the potential of coverage under the policy.

Our Supreme Court, granting review, disagreed. In Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076 [ 17 Cal.Rptr.2d 210 , 846 P.2d 792 ], it *161 reversed our decision and remanded for further proceedings. Because the case…

— Hard to believe, but my colleagues were reversed in Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076 [ 17 Cal.Rptr.2d 210 , 846 P.2d 792 ], the first appellate incarnation of this case, for the same mistake they repeat today, upholding a trial court failure to recognize the difference between intentional and negligent torts. In Barbara B. the court was at pains to point out that distinction; some of the pertinent language appears in the margin.

*169 Let us examine the so-called collusive trial before Judge Luesebrink. There, Gary Lee was represented by a counsel provided by an insurer, his homeowner’s carrier. The judge did not even learn of the parties’ stipulation to proceed only on the negligence accusations in the underlying complaint until midtrial. He then expressed reservations concerning the “unrepresented” absentee carrier, it is true. But, in view of the judgment rendered, he must have put those reservations aside — and for good reason.

First, Horace Mann Insurance Company could have been involved, but it decided to gamble on a wrong-headed legal position rather than provide the defense that six justices of the Supreme Court and one from this court found…

Barbara B. appeals from a judgment declaring Horace Mann Insurance Company (Horace Mann) has no obligation to indemnify its insured, Gary Lawrence Lee, for a judgment of more than $500,000, entered against him in Barbara's 1991 civil action arising out of Lee's misconduct while he was her junior high school teacher.

We have seen this coverage case before. The first time around, we affirmed a summary judgment in favor of Horace Mann, finding as a matter of law the insurer had no duty to defend Lee, who had entered a plea of nolo contendere to one count of criminal sexual molestation of his thirteen-year-old student. (Pen. Code, § 288, subd. (a).) Relying on J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009 [ 278 Cal. Rptr. 64 , 804 P.2d 689 ] [liability insurer owes no duty to indemnify insured for damages arising out of child molestation]), we concluded none of Barbara's claims raised the potential of coverage under the policy.

Our Supreme Court, granting review, disagreed. In Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076 [ 17 Cal. Rptr.2d 210 , 846 P.2d 792 ], it reversed our decision and remanded for further proceedings. Because…