A CGL insurer owes its insured a duty of defense with respect to a claim that the insured is liable on a theory of negligent hiring, training, and supervision for its employee’s sexual assault against the claimant. In determining whether the liability arises from an “accident” or occurrence, the focus is on the insured’s conduct that allegedly leads to its liability. So, while the employee’s conduct was intentional and cannot be insured against, the insured employer’s conduct in hiring, training and supervising the employee was supposedly “negligent,” which is to say accidentally. The employee’s intentional misconduct is not necessarily a supervening cause but rather a risk against which the employer might guard against by careful hiring, training, and supervision. For purposes of assessing whether the insured’s conduct caused the alleged harm, a court adopts the tort “substantial factor” standard of causation. Since the employer’s conduct could not be ruled out as a substantial factor in leading to the employee’s sexual assault, the insurer owed the insured employer a duty of defense.
California Supreme Court (Corrigan, J.; Liu, J., concurring); June 4, 2018; 2018 Cal. LEXIS 4063