Diab v. Mid Century Ins. Co.
Filed 7/23/13 Diab v. Mid Century Ins. Co. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
NAEL DIAB,
Plaintiff and Appellant,
v.
MID CENTURY INSURANCE COMPANY,
Defendant and Respondent.
B241538
(Los Angeles
County
Super. Ct.
No. BC 466333)
APPEAL from
a judgment of the Superior Court
of
County, Yvette M. Palazuelos, Judge. Reversed.
Glaser
Damone & Schroeder and Robert P. Damone for Plaintiff and Appellant.
Archer
Norris and Limor Lehavi for Defendant and Respondent.
* * * * * *
Plaintiff Nael Diab appeals from the judgment in favor of
defendant Mid Century Insurance Company (Mid Century) after the trial court
granted Mid Century’s motion for summary judgment. Diab’s action against Mid Century is an
insurance coverage dispute relating to the duty to defend and indemnify him in
a tort suit brought by Michelle Nunez (Nunez
Action). Diab contends there were
triable issues of fact relating to the duty to defend that precluded
Factual background
Diab purchased
a homeowners insurance policy from Mid Century that was in effect during the
period relevant to this case. The
insuring clause of the policy stated in pertinent part: “We will pay those damages which an insured
becomes legally obligated to pay because of:
[¶] 1. bodily injury resulting from an
occurrence . . . .
[¶] . . . [¶] At our expense and with attorneys of our
choice, we will defend an insured against any suit seeking damages covered
under [this section]. . . .
[¶] We do not have any duty to
defend or settle any suit involving actual, alleged, threatened or declared
bodily injury or property damage not covered under this liability
insurance. This applies whether or not
the suit is groundless, false or fraudulent.â€
(Boldface omitted.)
The policy
defined bodily injury as “physical harm to the body, including physical
sickness or disease, to a person other than an insured.†(Boldface omitted.) It defined an occurrence as “an
accident . . . which results in bodily
injury . . . .â€
(Boldface omitted.)
Nunez is the
widow of Amr Ramadan. She filed the
Ramadan and guardian ad litem for her six minor children. The Nunez
Action alleged as follows. On or about September 26, 2009, Ramadan and
some friends were gathered at a restaurant in Hermosa
Beach around 11:00 p.m. Ramadan overhead an acquaintance talking to
Diab on the telephone, and Ramadan jokingly made a comment about Diab. Diab heard the comment through the
telephone. Within minutes, he arrived at
the restaurant in a rage and wielding a wine bottle. He approached Ramadan from behind and began
yelling and verbally abusing Ramadan.
Friends took the wine bottle away from him. He was aware that Ramadan was ill and had a
serious heart condition, but he nevertheless continued to threaten Ramadan,
including telling Ramadan he was going to kill him. At some point, he found an empty large
storage crate and threw it at Ramadan, striking him in the arm and side of the
chest. Almost immediately after that, Ramadan
grabbed his left arm and complained of pain to his friend. Ramadan reached for his phone to call 911,
but Diab kicked the phone out of his hand.
Ramadan then left the restaurant with a friend, and Diab followed. Within less than a block, Ramadan, who was
driving, complained of increasingly severe chest pain and lost consciousness. His friend was able to gain control over the
car and bring it to a stop. The friend
called paramedics. Diab arrived at the
scene and continued to verbally abuse Ramadan, including saying that he was
“glad†Ramadan was “dead.†Paramedics
took Ramadan to the hospital, where he was in full arrest and pronounced dead
about 12:14 a.m. on September 27, 2009.
In
Ramadan’s autopsy report dated December 9, 2009, the medical examiner opined
“that the verbal altercation and assault with the bread crate produced a surge
of catecholamines, which are associated with ‘fear and flight’. This in turn increased the irritability of
the already diseased myocardium, making it more susceptible to fatal
arrhythmias. The decedent most likely
had a fatal arrhythmia with clinical symptoms of myocardial infarction, leading
to his demise. [¶] The cause of death is opined to be coronary
artery disease due to atherosclerotic cardiovascular disease. . . . Because of the temporal relationship between
the prior verbal altercation with assault and the onset of cardiac arrest, the
manner of death is opined to be homicide.â€
against Diab for assault and battery
and wrongful death.
the Claim
Diab sent the
around April 21, 2010. Mid Century
general adjuster Marcie Mendes conducted an investigation into Diab’s
claim. She obtained a statement from Diab,
which she recorded and had transcribed.
His statement was as follows.
Diab was talking to his friend on the telephone on September 26, 2009,
and he heard somebody in the background calling him names and insulting
him. His friend told him that it was
Ramadan in the background. Diab had seen
Ramadan probably four times and knew who he was. Diab told his friend he was “comin’ right
now.†He drove to the restaurant where
his friend was located and parked across the street. He asked Ramadan from his van why he was
saying insulting things about him.
Ramadan insulted him some more, called his mother names, and said if he
was a “man,†he would come out of the car.
Diab stepped out of his van and some friends came up and held him back
from Ramadan. There were about seven or
eight people in the area, and Diab did not know who was or was not his
friend. He took a bottle of wine from
his van and held it behind his back. One
man took the bottle of wine away and another held him back. At this point, Ramadan was across the street
from him and was still saying insulting things; he was calling Diab’s mother a
“whore†and saying he was going to take Diab’s wife, business, and house. There was a plastic bread tray nearby, the
type used for bread deliveries. Diab
grabbed that tray and “tossed it . . . away†because he “was so
upset.†The bread tray hit Ramadan in
the hand. Diab and his friend then got
into Diab’s van and left the restaurant.
Approximately 10 minutes after they left the restaurant, Diab’s friend
received a call that Ramadan was in an accident. They went to the site of the accident and saw
the paramedic giving Ramadan CPR. Diab
found out later that night Ramadan had passed away. Diab did not know Ramadan had any medical
conditions.
Mid Century
obtained police reports from the Hermosa Beach Police Department memorializing
witness interviews conducted by the police.
Three witnesses said that Diab picked up the bread tray and “threw it at
Ramadan.†The report of the police
interview with Diab himself said that Diab “took a plastic bread rack and from
a distance of fourteen or fifteen feet he threw the bread rack like a
basketball at Ramadan, hitting him in the shoulder.†The witnesses all said the bread tray hit
Ramadan in the shoulder or head, or both places.
Mid Century
sent Diab a letter on May 22, 2010, denying his claim for defense and
indemnity. The denial letter said Diab
had become so upset with Ramadan that he “grabbed a bread pan and threw it
at . . . Ramadan.†The
letter reasoned that the allegations of assault and battery in the
behaviors and therefore did not meet the definition of an “occurrence†in the
policy. Mid Century concluded coverage
was not met and exclusions for coverage also applied.
Diab
responded to Mid Century’s disclaimer of coverage with his own letter. In it, he told Mid Century that their
“primary key fact†was inaccurate in that he did not throw the bread tray at
Ramadan. He said he did not throw it at
Ramadan or with “an intent of causing it to hi[t]†Ramadan. Instead, he hit Ramadan by accident. He also said he held the wine bottle in
self-defense and not to assault Ramadan with it. Moreover, at no time did he engage in any
conduct with the intent to cause injury to Ramadan. In short, he said any injury to Ramadan was
accidental. He asked Mid Century to
reconsider its disclaimer. Mid Century
responded by again disclaiming coverage.
On October
27, 2010, Diab and Nunez stipulated to the filing of a first amended complaint
(FAC) in the Nunez Action. The FAC still included causes of action for
assault and battery and wrongful death, but it added a cause of action against
Diab for negligence. The allegations of
the FAC were substantially the same in all material respects, except that instead
of saying Diab threw the bread tray at Ramadan, it said he threw the tray
“toward [Ramadan’s] direction.†Also,
the cause of action for negligence stated that Diab “carelessly verbally abused
a man whom he knew had a heart condition and negligently threw the crate,†and
as a result, Ramadan became so upset and fearful that he suffered a massive
heart attack and died.
Mid Century
received the Nunez FAC on May 27,
2011, and Diab requested that Mid Century reconsider its coverage disclaimer on
June 3, 2011. Also on June 3, Diab
served verified discovery responses on Mid Century in which he stated that he
threw the bread tray “in frustration†and without the intent to hit
Ramadan. Mid Century again disclaimed
coverage on July 26, 2011, reiterating there was no coverage under the insuring
clause.
procedural history
Diab filed
this action for declaratory relief regarding the duty to defend and insurance
bad faith for refusal to defend on September 28, 2010. By way of an FAC filed on November 3, 2011,
he added causes of action for declaratory
relief regarding the duty to indemnify and insurance bad faith for failure
to settle. On February 6, 2012, Mid
Century moved for summary judgment on the ground that there was no potential
for coverage under the policy because Diab’s conduct in connection with the
summary judgment motion and entered judgment in favor of Mid Century. Diab timely appealed.
STANDARD OF REVIEW
The trial
court properly grants a motion for summary judgment when “all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a
and independently determine whether the undisputed facts warrant judgment for
the moving party as a matter of law. (Chavez
v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) We view the evidence in the light most
favorable to the nonmoving party, liberally construing the nonmoving party’s
evidence and strictly scrutinizing the moving party’s. (Id.
at p. 1302.)
“The
interpretation and application of an insurance policy to undisputed facts
presents a question of law subject to this court’s independent review.†(State Farm General Ins. Co. v. Frake
(2011) 197 Cal.App.4th 568, 577 (Frake).)
discussion
Mid Century
contends it had no duty to defend Diab in the Nunez Action and, moreover, the facts supporting this conclusion
were undisputed. Diab contends there was
a triable issue of fact regarding whether his conduct was “accidental†within
the meaning of the policy, thereby precluding summary judgment. We agree with Diab.
An insurer
has a duty to defend if there is a potential for coverage under the
policy. (Frake, supra, 197 Cal.App.4th at p. 577.) The duty to defend is broader than the duty
to indemnify and may exist even when there is some doubt about coverage or
coverage ultimately does not develop. (
The duty applies even to claims that are groundless or fraudulent. (Waller
v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19 (Waller).) The insured has
the burden of proving the potential for coverage in a declaratory relief action
on the duty to defend. (
(2010) 49 Cal.4th 315, 322; Frake, supra,
at p. 577.) When there is no
potential for coverage, there is no duty to defend. (Waller,
supra, at p. 19.) We resolve
any doubt as to whether the facts or allegations establish a duty to defend in
the insured’s favor. (Montrose
Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 299-300.)
The duty to
defend, while broad, is not without limits.
The duty is limited by the nature and kinds of risk covered by the policy.
(Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583,
591.) The first step in determining whether the insurer owes a duty to
defend is to compare the allegations of the complaint with the terms of the
policy. (Frake, supra, 197 Cal.App.4th at p. 578.) Facts extrinsic to the complaint may also be
examined and may either give rise to or preclude the duty to defend. (Waller, supra, 11 Cal.4th at p. 19.)
The insuring
clause of Diab’s policy states that the policy covers bodily injury resulting
from an occurrence, and an occurrence is defined as an accident. Thus, the policy covers bodily injury
resulting from an accident. “Under
California law, the word ‘accident’ in the coverage clause of a liability
policy refers to the conduct of the insured for which liability is sought to be
imposed on the insured.†(
(2009) 47 Cal.4th 302, 311 (Delgado).) “An intentional act is not an ‘accident’
within the plain meaning of the word.†(Royal
Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537, fn.
omitted.) “In the context of liability
insurance, an accident is ‘“an unexpected, unforeseen, or undesigned happening
or consequence from either a known or an unknown cause.â€â€™ [Citations.]
‘This common law construction of the term “accident†becomes part of the
policy and precludes any assertion that the term is ambiguous.’†(Delgado,
supra, at p. 308.)
The term
“accident†refers to the nature of the conduct itself, not to unintended
consequences. (Frake, supra, 197 Cal.App.4th at p. 579.) An accident “is never present when the
insured performs a deliberate act unless some additional, unexpected,
independent, and unforeseen happening occurs that produces the damage.†(Merced Mutual Ins. Co. v. Mendez
(1989) 213 Cal.App.3d 41, 50 (Merced).) When an insured intends all of the acts that result in the victim’s injury, the injury is
not an accident “merely because the insured did not intend to cause
injury. [Citations.] The insured’s subjective intent is
irrelevant.†(Fire Ins. Exchange v.
Superior Court (2010) 181
Cal.App.4th 388, 392 (Bourguignon);
see Merced, supra,
accident occurs even if the acts causing the alleged damage were intentional as
long as the resulting damage was not intended.
The argument urged by appellants has been repeatedly rejected by the
appellate courts.â€].)
Nevertheless,
coverage is not always precluded when
the insured acted intentionally and the victim was injured. (Frake,
supra, 197 Cal.App.4th at p. 580.)
An accident may exist “when any aspect in the causal series of events
leading to the injury or damage was unintended by the insured and a matter of
fortuity†‑‑ in other words, when the insured intends
the victim’s injury. (Merced, supra, 213 Cal.App.3d at
p. 50.) The court in
example: “When a driver intentionally
speeds and, as a result, negligently hits another car, the speeding would be an
intentional act. However, the act
directly responsible for the injury ‑‑ hitting the other car ‑‑
was not intended by the driver and was fortuitous. Accordingly, the occurrence resulting in
injury would be deemed an accident. On
the other hand, where the driver was speeding and deliberately hit the other
car, the act directly responsible for the injury ‑‑ hitting the
other car ‑‑ would be intentional and any resulting injury would be
directly caused by the driver’s intentional act.†(Ibid.)
At the
heart of this appeal is whether Diab’s conduct constituted an accident within
the meaning of the policy. If we were
limited to the allegations of the Nunez
complaint and FAC, there would be little doubt Diab’s conduct was intentional
and therefore outside the scope of coverage.
But Diab presented some extrinsic evidence to Mid Century that Ramadan’s
bodily injury resulted at least in part from an unintentional act. The autopsy report opined that “the verbal
altercation and assault with the
bread crate†(italics added) produced catecholamines, which increased the
irritability of Ramadan’s already diseased myocardium, making it more
susceptible to the fatal arrhythmia that most likely killed Ramadan. Both of the Nunez complaints said “almost immediately after†Ramadan was hit
with the bread tray, he grabbed his left arm and began complaining of
pain. By all accounts, the blow with the
bread tray was one of the causal events leading to Ramadan’s demise. Diab’s statements in his transcribed
interview with Mid Century, the letter responding to Mid Century’s disclaimer,
and his discovery responses indicate that he threw the bread tray “away†because
he was upset or frustrated, and he did not intend to throw it at Ramadan or hit
Ramadan with it. In Diab’s version of
the events, the bread tray hitting Ramadan was an “‘“unexpectedâ€â€™â€ and
“‘“undesigned happening.â€â€™â€ (
injury.
Accordingly,
the parties disputed whether this “aspect in the causal series of events†‑‑
the bread tray hitting Ramadan ‑‑ was intended by Diab or was a
matter of fortuity. (Merced, supra, 213 Cal.App.3d at p. 50.) Diab’s deliberately throwing the tray was
like the driver who was deliberately speeding in the Merced example. Although the
driver intended to speed, he did not intend to hit another car, and the
injury-producing event would thus be accidental. (Ibid.) Analogously, although Diab deliberately threw
the tray, he said he did not intend to throw it at Ramadan or hit Ramadan. This triable issue of fact regarding Diab’s
intent and the accidental nature of his conduct means that the potential for
coverage still exists. Summary judgment
in favor of Mid Century was not appropriate.
The
relatively recent Frake case on which
Mid Century relies may be distinguished.
In that case, the insured and his friend were engaging in horseplay, and
the insured struck his friend in the groin.
The two had apparently engaged in this type of horseplay (striking each
other in the groin area) for years. (
his friend in the general area of the groin, but he said he did not intend to
harm his friend. (Id. at p. 578.) The friend
suffered numerous injuries from the strike that resulted in over $70,000 in
medical bills. (Id. at p. 572.) When the
friend sued the insured, the insured tendered defense of the action under a
insurance policy covering damages for bodily injury caused by an accident. (Ibid.) The court held the insurer had no duty to
defend and the trial court erred in granting summary adjudication for the
insured. It noted this was not a case of
“some ‘unexpected, independent, and unforeseen happening’ in the causal chainâ€
producing the harm, insofar as there was no dispute the insured intended to
strike his friend in the groin area. (
insured did not intend to harm his friend did not transform his intentional
conduct into an accident. (
accidental. (Ibid.)
By
contrast, here there was a dispute as to whether one of the injury-producing
acts in the causal chain was accidental.
Diab has not admitted that he intended to hit Ramadan with the bread
tray, as the insured in Frake
admitted that he intended to hit his friend.
Diab also contends he did not intend to harm Ramadan, but we agree with
irrelevant. (Frake, supra, 197 Cal.App.4th at p. 585.) Our holding has nothing to do with his intent
to harm, or lack thereof. It is Diab’s
intent to hit Ramadan with the bread tray that is the issue. (See Bourguignon,
supra, 181 Cal.App.4th at p. 392 [when insured intends all
injury-producing events, injury is not an accident merely because insured did
not intend to harm].) And given the
dispute surrounding this issue, summary judgment should not have been granted.
DISPOSITION
The
judgment is reversed. Appellant to
recover costs on appeal.
FLIER,
J.
I CONCUR:
RUBIN, J.
BIGELOW, P.J.
Dissenting:
I
respectfully dissent.
It is true
that an insurer’s duty to defend is broader than its duty to indemnify. (
(1993) 4 Cal.4th 1076, 1081.) Whether
there is a duty to defend is ordinarily assessed by comparing the allegations
of the underlying complaint with the terms of the policy. Facts extrinsic to the complaint may also
create a duty to defend when they reveal a possibility that the policy may
cover the claim. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19.) But, when there is “ ‘ “no possibility
of coverage, there is no duty to defend.†’ â€
(Ibid.)
Here, the
insurance contract between Mid Century and Diab provides Mid Century will
indemnify Diab for damages he becomes legally obligated to pay “because of an
accident.†In my view, the undisputed
facts in this case establish there was no accident, and, as a result, no
possibility of coverage.
In
determining whether an event is an accident, it is well established that the
insured’s subjective intent is irrelevant.
(Quan v. Truck Ins. Exchange (1998)
67 Cal.App.4th 583, 598.) Accordingly,
courts have held that if an insured’s act is intentional there is no accident,
regardless of whether the policy holder intended the consequences of the
act. (Collin v. American Empire Ins. Co (1994) 21 Cal.App.4th 787,
806.) Similarly, there is no accident
where the act and the injury were
intended. (Delgado v. Interinsurance Exchange of Automobile Club of Southern
California (2009) 47 Cal.4th 302, 311-312 (Delgado); Merced Mutual Ins.
Co. v. Mendez (1989) 213 Cal.App.3d 41, 50 (Merced).)
The California Supreme Court
recently stated in Delgado that “[i]n
the context of liability insurance, an accident is ‘ “an unexpected, unforeseen
or undesigned happening or consequence from either a known or an unknown
cause.†’ †(
“did not alter the well-established definition of the term ‘accident,’ â€
so as to change the rule that an accident does not occur when an intentional
act results in unintended harm. (
(2011) 197 Cal.App.4th 568, 582-583 (Frake)
California that the term ‘accident’ refers to the nature of the act giving rise
to liability; not to the insured’s intent to cause harm.†(Fire
Ins. Exchange v. Superior Court (2010) 181 Cal.App.4th 388, 393.) The relevant case law indicates that to
determine whether an event is an accident for insurance coverage purposes, the
inquiry focuses on whether the insured engaged in a deliberate, intentional act
that produced the injury, not whether the insured intended to cause the harm
that occurred. (Frake, supra, at p. 579.)
The
majority acknowledges that whether Diab intended to cause the heart attack is
not relevant. But, it also broadly
applies a rule that an accident occurs “ ‘when any aspect in the causal series of events leading to the injury or
damage was unintended by the insured and a matter of fortuity.’ †(Maj. Opn. at p. 8, citing
coverage here because while all of Diab’s acts were intentional, there is a
factual dispute about whether he intended
to hit Ramadan with a bread tray during the course of his tirade. (Maj. Opn. at p. 10.)
I would not
find a material triable issue of fact exists as to whether Diab’s conduct was
an accident. Even under Diab’s
characterization of the facts, none of his actions leading up to the heart
attack was unintended. After hearing
Ramadan’s comments about him, Diab deliberately went to Ramadan’s location to
engage him. He verbally confronted
Ramadan. He got out of his vehicle to
continue the confrontation. Anticipating
that the incident might become physical, he took a wine bottle out of his van
and held it behind his back. His friends
saw fit to take it away. He described
his friends as “holding him back.†The
only reasonable inference is that his conduct gave them reason to do so. He described being on opposite sides of the
street, engaged in a “dog barking fight.â€
Yet, in response to Ramadan’s comments denigrating his mother, Diab ran
from his side of the street to Ramadan’s side, grabbed a tray, and “tossed itâ€
because he was so upset. The tray hit
Ramadan in the hand. Thus, even in his
own recitation of the facts, Diab’s act of throwing the tray was not an accident. It was part and parcel of the heated
confrontation with Ramadan. In another
document, Diab described throwing the tray like a “basketball pass.†However, Diab never claimed the tray slipped
out his hands, or he only meant to waive it in the air but not throw it, or he
was aiming it away from Ramadan. That
Diab may not have intended to hit Ramadan with the tray does not render
“accidental†his act of throwing it, out of frustration or anger, in the course
of a heated confrontation, in Ramadan’s general direction. (Fire
Ins. Exchange v. Superior Court, supra, 181 Cal.App.4th at p. 392
[“ ‘Accident’ is given a commonsense interpretation that it is an
unintentional, unexpected, chance occurrence.â€].)
Moreover,
the alleged injury-causing event in this case was not simply the impact of the
tray hitting Ramadan. Instead it was the
entire incident, including the verbal confrontation, which caused the surge of
catecholamines, associated with fear and flight. Diab’s actions which produced this
physiological response in Ramadan were all deliberate and intentional. It belies common sense to say there is a
whether Diab acted accidentally during his rage because he may or may not have
intended to hit Ramadan when he threw the bread tray.
The
majority relies on one illustration first stated in Merced to justify its result.
There, the court stated that when a driver intentionally speeds but
negligently hits another car it can be considered an accident because the act directly responsible for the
injury – hitting the car – was not intended by the driver and was
fortuitous. However, if a driver
deliberately sped and hit another car it would be intentional and the resulting
injury would not be considered an accident.
Here, an angry
individual deliberately set off intending to and succeeding in aggressively
confronting his target. Diab’s actions
were more akin to the driver who speeds and deliberately hits another car. The “act directly responsible for the injuryâ€
was Diab’s combined course of conduct, including the verbal assault, aggressive
confrontation, and throwing of the tray.
These acts were intentional, even though the ultimate harm—Ramadan’s
heart attack—may not have been Diab’s intended goal. I find it inaccurate to conclude the “act
directly responsible for the injury†was the tray hitting Ramadan, such that a
suggestion that Diab did not intend to hit Ramadan when throwing the tray
interrupts the chain of intentional acts and creates an accident subject to potential
insurance coverage.
Although in
exists when any aspect in the causal series of events leading to injury was
unintended by the insured and was fortuitous, the court also explained: “
‘An accident, however, is never present when the insured performs a deliberate
act unless some additional, unexpected, independent, and unforeseen happening
occurs that produces the damage.’
[Citation.]†(
I do not agree that the tray hitting Ramadan was an additional,
unexpected, independent, and unforeseen happening that produced the damage in
this case.
I would affirm the trial court’s
decision to grant summary judgment.
BIGELOW,
P. J.
name="_ftn1" title="">[1] The
autopsy report, which is part of the record, is accurately quoted in the
