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Low v. Golden Eagle Insurance Co.11/20/2002
CERTIFIED FOR PUBLICATION December 12, 2002.
While working for appellant insured, U.S. Continental Marketing, Inc., an employee (Employee) filed an employment discrimination lawsuit against his employer, alleging his supervisor (Supervisor) had sexually harassed him; Supervisor was joined as a party defendant. On learning of Employee's suit, KMEX, a Los Angeles radio station, decided to cover the story behind it. The focus of the KMEX coverage was Employee's allegation he was forced to have sex with Supervisor in order to keep his job . David Williams, the president of appellant insured, also appeared on the broadcast and answered questions about his organization's employment practices. The KMEX broadcast prompted Supervisor to file a cross-complaint against appellant and Williams for damages for defamation, based upon an allegedly libelous statement made by Williams to the KMEX interviewer. As set forth in Supervisor's pleading, the following statements were published during the KMEX interview:
"Employee: While [Supervisor] was my supervisor at U.S. Continental Marketing, repeatedly forced me to have sex with him, even though he had AIDS. He also forced me to spend time at his home and pull down my pants and walk around naked in front of him. He said if I didn't do these things, he would fire me.
"Interviewer: You had sex with [Supervisor] even though he had AIDS, out of fear of losing a job paying $4.25 an hour?
"Employee: Yes. The job meant a lot to me. [ . . . ]
"Interviewer: [To David Williams, President of appellant]: Did [Supervisor] ever discuss with you about his having AIDS?
"Williams: Occasionally we would talk about it."
Supervisor's cross-complaint went on to allege that, through Williams's statement during the radio broadcast, appellant had published private facts relating to Supervisor's sexual orientation and medical condition, causing him severe emotional distress, humiliation, and loss of prospective employment. Appellant insured tendered defense of Supervisor's cross-complaint to its liability insurer, respondent Golden Eagle. The latter rejected the tender on the ground that, because coverage was excluded by the Employment Related Practices (ERP) provision of the policy, no duty to defend its insured arose. The insurer then (and now) being in reorganization/liquidation proceedings, appellant applied to the San Francisco County Superior Court for issuance of an order to show cause, as prescribed by Insurance Code section 1010 et seq., why the insurer's refusal to defend should not be overturned. Following briefing and argument, Judge Saldamando denied the application on the ground the ERP provision of the policy excluded coverage-and any consequent duty to defend-for the alleged defamation.
This appeal is timely. We affirm.
ANALYSIS
The question presented is whether the Insurance Commissioner, acting on behalf of respondent insurer-in-liquidation, and the trial court erred in concluding respondent was under no duty to provide a defense to appellant in the third party litigation of Supervisor. Both reached that conclusion on the ground the ERP provision of the policy excluded coverage of, and a dependent duty to defend against, the claim asserted in the underlying lawsuit-that appellant had personally injured Supervisor by defaming him. The parties appear to agree that four published opinions-three from our Court of Appeal and one from the federal Court of Appeals for the Ninth Circuit-guide the resolution of this issue. We summarize that quartet of decisions in the order in which they were decided.
In Loyola Marymount University v. Hartford
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