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Original Joe's2/7/2002
at there was no potential for coverage under the policy because there was no possibility that the insured's conduct in having sex with the claimant could be deemed an accident. (Id. at pp. 600-601.) " he insured's conduct alleged to have given rise to claimant's injuries is necessarily nonaccidental, not because any `harm' was intended, but simply because the conduct could not be engaged in by `accident.' " (Id. at p. 596.) The Quan court acknowledged, however, that an accident can flow from an intentional act if " `some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.' " (Id. at p. 600.)
Here, there was a possibility that Louie's alleged injuries were caused by an occurrence under the policy. Though the facts were not developed below, it is possible that the allegedly inaccessible condition of the restroom was excused or that there was an additional " `happening' " that together with appellant's maintenance of the restroom resulted in an accident. Given the potential for coverage under the policy, respondent had a duty to investigate the incident to determine whether the occurrence was within the policy's coverage. Mere reliance on an unverified complaint based in large part on information and belief does not support the granting of the motion for summary judgment where there is a potential for coverage. The burden of proof is on the respondent insurer to demonstrate that there is no possibility of coverage based on admissible evidence negating coverage. The trial court therefore erred in granting summary judgment in favor of respondent.
DISPOSITION
The judgment is reversed.
We concur:
KAY, P.J.
MARCHIANO, J.
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