No Duty to Defend Massage Therapist’s Alleged Sexual Assault of a Client that Occurred During a Massage

By lfsuser on October 23, 2014

(Baek v. Continental Casualty Co., California Court of Appeal – 2nd District, No. B251201, Oct. 6, 2014)

What acts are considered within an employee’s “scope of employment”? When does an insurer have a duty to defend an insured’s employee for intentional tortious acts? Most recently, the Los Angeles County Superior Court and the Second District of the California Court of Appeal determined that a massage therapist’s alleged sexual assault of a client at its establishment was not within the scope of employment.

Luiz Baek, a massage therapist, and his employer, Heavan Massage and Wellness Center (“HMWC”) were sued by a client, “Jaime”, after Baek allegedly assaulted her during a massage. HMWC’s insurance policy with Continental Casualty Co. (“CCC”) covered employees “only for acts within the scope of their employment.” The claim was tendered and then denied by CCC who determined that there was no coverage for Baek’s alleged actions. Baek filed suit against CCC claiming that it had a duty to defend and indemnify him as a partner or employee of HMWC.

The trial court sustained CCC’s demurrer. The Court of Appeals affirmed finding that Baek’s sexual assault was not within his scope of employment as a massage therapist. Unless the motivating emotions for the sexual tort were attributable to the conditions of employment, the sexual assault is not “engendered by” or an “outgrowth” of employment. Even more, when the tort is personal in nature, as it was in this case, mere presence at the workplace when the assault occurred does not mean that it occurred “within the scope of employment.” Here, the court found that while his employment with HMWC may have provided him with the opportunity to be alone with Jaime, the alleged sexual assault was personal and committed for reasons unrelated to work. Therefore, Baek was not insured under CCC’s policy.

To read the California Court of Appeal’s full opinion click here.

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