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Safeco Insurance Co. v. Brink7/5/2005
Chad Brink served alcohol to a minor and then had nonconsensual sexual intercourse with her. The victim sued Brink for damages, and he tendered the claim to his homeowner's insurance company. Because there was no occurrence within the meaning of the policy, the injury resulted from intentional acts of the insured, the acts involved sexual molestation, and the insured's acts were criminal , we affirm the trial court's order granting summary judgment in favor of the insurer.
FACTS
Chad Brink, an adult, attended a party where several underage persons were present, including 16-year-old LN. Brink served alcohol to LN and others. LN became extremely intoxicated, and Brink offered to take her home. On the way to LN's house, Brink pulled the car over and had sex with her. After he was finished, Brink redressed LN and returned her to the party, telling the others that he was unable to wake her to take her home.
The next day, LN reported the incident to the Lynden Police Department. Brink initially told the police officer that he asked LN if she was interested enough in him to have sex and that she responded that she was. Brink told the officer that LN was in and out of consciousness. When questioned by the officer, Brink admitted that he really did not believe that LN had given him valid consent because she was in and out of consciousness and she never woke up enough to consent. The State charged Brink with rape in the second degree for engaging 'in sexual intercourse with a 16 year old female when the female was incapable of consent by reason of being physically helpless or mentally incapacitated, in violation of RCW 9A.44.050(1)(b), which is a Class A felony.' Brink eventually pleaded guilty to rape in the third degree in violation of RCW 9A.44.060. Brink admitted: 'I had sex with {LN} under circumstances where it appeared she was unable to give a valid consent.'
LN sued Brink for damages arising out of the incident. At the time of the incident, Brink had a homeowner's insurance policy through Safeco Insurance Company. Safeco denied owing liability coverage for this incident and filed a declaratory judgment action. Safeco moved for summary judgment. The trial court granted Safeco's motion and LN appeals.
ANALYSIS
The first issue we address is whether Brink's actions were an 'occurrence' under the terms of the policy. Under the policy, an 'Occurrence' means an accident, including exposure to conditions which results in:
a. bodily injury; or
b. property damage; during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.
For purposes of liability insurance, 'an accident is never present when a deliberate act is performed unless some additional unexpected, independent and unforeseen happening occurs which produces or brings about the result of injury or death. The means as well as the result must be unforeseen, involuntary, unexpected and unusual.' Grange Ins. Co. v. Brosseau, 113 Wn.2d 91, 125, 776 P.2d 123 (1989). Here, Brink's actions toward LN were clearly deliberate and were not accidental. LN argues that Brink's furnishing of alcohol was an occurrence within the policy because intoxication is an 'exposure to conditions.' This argument is unpersuasive. Brink intentionally gave alcohol to LN and intentionally had sexual intercourse with her despite her inability to consent. Even accepting LN's argument that Brink did not intend to have nonconsensual intercourse with her, it was foreseeable that giving LN large quantities of alcohol would result in her inability to consent to sexual intercourse. Thus, there was no occurrence under
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