The California Court of Appeal, Second Appellate District, affirmed summary judgment for an insurer holding injuries inflicted by the insured's employee were not caused by an accident even if the employee acted in unreasonable self-defense or the employer was negligent in training or supervising the employee.
Alexander Terminassian, an employee of the L.A. Checker Cab Cooperative ("Checker"), shot his passenger Marco Cifuentes. Cifuentes testified that Terminassian told him he would not accept Cifuentes as a passenger because he was drunk. Terminassian testified that when he told Cifuentes to get out of the cab, Cifuentes spat in his face, kicked him, struck him on the back of his head, and threatened to kill him. Terminassian described Cifuentes as "deranged" and "out of control." Terminassian reached into his pocket for his gun and "racked the slide, chambering the round to make sure that [Cifuentes] understands it's not a toy gun." At that point, Cifuentes got out of the cab, opened the driver's side door and attempted to pull Terminassian out of the car. Terminassian fired one shot at Cifuentes when Cifuentes was "inches away." Terminassian testified he shot Cifuentes "[b]ecause of the danger to my life." Cifuentes admitted he spat on the window divider in the cab and yelled curse words but denied striking or threatening Terminassian. According to Cifuentes, Terminassian shot him without provocation.
Cifuentes sued both Checker and Terminassian for assault and battery and also sued Checker for negligent supervision of Terminassian. Checker tendered defense of the action to First Specialty Insurance Corporation ("First Specialty"). First Specialty refused to defend or indemnify Checker because under either Terminassian's or Cifuentes's version of the events, the incident was not covered. Checker then filed a cross-complaint against First Specialty for breach of contract and declaratory relief and First Specialty cross-complained against Checker for declaratory relief.
The trial court granted First Specialty's motion for summary judgment and Checker appealed. The appellate court noted the policy covered "bodily injury" caused by an "occurrence" defined as an "accident." Relying on the recent California Supreme Court decision in
Delgado v. Interinsurance Exchange of Automobile Club of Southern California (2009) 47 Cal.4th 302, the court found that because the undisputed evidence showed the shooting was not a "mishap" but, rather, that Terminassian intended to shoot Cifuentes in self-defense, Cifuente's injuries were not caused by an accident as a matter of law, and there was no potential for coverage under the policy.
Also relying on
Delgado, the court rejected Checker's argument that if Terminassian had an unreasonable belief in his need for self-defense his actions were negligent and therefore accidental. "'[A]n insured's unreasonable belief in the need for self-defense does not turn the resulting purposeful and intentional act of assault and battery into 'an accident' within the policy's coverage clause.'" (Quoting
Delgado, supra, 47 Cal.4th at 317.) Similarly, the court rejected Checker's argument that Cifuentes' unexpected acts provoked a negligent response from Terminassian because "[t]he term 'accident' in the policy's coverage clause refers to the injury-producing acts of the insured, not those of the injured party." (
Delgado, supra, 47 Cal.4th at 315.)
The Court also disagreed with Checker's contention that the policy was ambiguous as to whether it applied to negligent supervision. The court again relied on Delgado holding the term "'accident' unambiguously refers to the event causing damage, not the earlier event creating the potential for future injury.'" (Quoting
Delgado, supra, 47 Cal.4th at 316.) Negligent supervision was a remote antecedent cause of Cifuentes' injury and, therefore, was not an "occurrence" within the meaning of the policy.
For all these reasons, the court affirmed the trial court judgment in favor of First Specialty.
Click
here for opinion.
This opinion is not final. It may be withdrawn from publication, modified on rehearing, or review may be granted by the California Supreme Court. These events would render the opinion unavailable for use as legal authority.
This and other case bulletins, as well as other publications of Gordon & Rees LLP, may be found at
www.gordonrees.com.