Arguing that sex is not an accident, Barrett & Worden attorneys won summary judgment on an insured’s claim that his carrier was in bad faith for not extending coverage when he was sued for negligence arising out of a sexual encounter with an acquaintance.  

The acquaintance claimed she was raped. The insured claimed the encounter was consensual, and tendered the defense.  The insurer declined coverage on the grounds that sex is not an accident and therefore would not be an occurrence under the policy.  

 The jury in the underlying suit between the insured and the acquaintance returned a finding that there was consent. But it curiously entered a verdict that the insured was 60% negligent, that the acquaintance was 40% contributorily negligent, and awarding the acquaintance $66,000 in damages.   

The insured unsuccessfully appealed that verdict to the Washington State Court of Appeals.  The Court of Appeals (MacKenzie v. Fischer, 2004 WL 2378414), hearing the case without the benefit of a trial transcript, upheld the verdict concluding that “it is possible that the jury believed that she gave consent under the mistaken belief that her boyfriend, not Fischer, climbed into her bed,” and concluded that, “the jury could find that Fischer did not engage in sexual contact with MacKenzie without consent, but still find that Fischer was negligent.”  

After failing to prevail on that appeal, the insured filed a state court action against the carrier for coverage and bad faith.  Barrett & Worden defended, removed the action to federal court, and moved for summary judgment.  Colleen Barrett argued the motion and she and Greg Worden collaborated on the briefs.  

The District Court granted that summary judgment motion holding that the act of sex is not an accident:  

Plaintiff has identified no unexpected, independent, and unforeseen happening which turned the act of consensual sex into an accident that caused injury to Ms. MacKenzie.  According to the appeals court, the jury in reaching its verdict must have determined that Ms. MacKenzie’s physical and emotional injury arose directly from plaintiff’s negligence in failing to verify her consent to sexual activity was valid and directed toward him.  This failure cannot be termed an accident.  Thus there was no intervening unforeseen event which caused the injury to Ms. MacKenzie.  The Court declines to adopt plaintiff’s argument that Ms. MacKenzie’s alleged mistake regarding his identity constituted an unforeseen happening that would turn his intended act of consensual sexual relations into an accident within the meaning of the policy.

The Court’s decision has been appealed, and the matter is now before the 9^th Circuit.