FILED
NOT FOR PUBLICATION NOV 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK GALVANI, No. 12-16627
Plaintiff - Appellant, D.C. No. 4:11-cv-03848-PJH
v.
MEMORANDUM*
TOKIO MARINE AND NICHIDO FIRE
INSURANCE CO., LTD.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted November 6, 2013**
San Francisco, California
Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.
Patrick Galvani appeals the district court’s denial of summary judgment to
him and grant of summary judgment to Tokio Marine and Nichido Fire Insurance
Company, his liability insurer, on his declaratory judgment and breach of contract
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action based on his insurer’s failure to defend or indemnify him in a suit for the
wrongful death of his wife. We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s judgment de novo, and we affirm.
Under California law, “the [initial] burden is on the insured to bring the
claim within the basic scope of coverage” by showing that coverage is possible.
Delgado v. Interinsurance Exchange of Automobile Club of S. Cal., 211 P.3d 1083,
1090 (Cal. 2009) (quoting Waller v. Truck Ins. Exchange, Inc., 900 P.2d 619, 625
(Cal. 1995)). Galvani’s policy covered “damages because of bodily injury or
property damage, to which this insurance applies, caused by an occurrence.” The
policy defined “occurrence” as “an accident.” Although the policy did not define
“accident,” the California Supreme Court has construed the term, as used in a
similar policy, to mean “an unexpected, unforeseen, or undesigned happening or
consequence from either a known or an unknown cause.” Id. at 1086 (quoting
Geddes & Smith, Inc. v. St. Paul-Mercury Indem. Co., 334 P.2d 881, 884 (Cal.
1959)) (internal quotation marks omitted). When damage “is the direct and
immediate result of an intended . . . event,” there is no accident. State Farm Gen.
Ins. Co. v. Frake, 128 Cal. Rptr. 3d 301, 310 (Cal. Ct. App. 2011) (alteration in
original) (quoting Shell Oil Co. v. Winterthur Swiss Ins. Co., 15 Cal. Rptr. 2d 815,
838 (Cal. Ct. App. 1993)).
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Here, Galvani’s wife’s death could not have resulted from an accident. The
only indication in the record of her cause of death is an autopsy report stating that
she died from strangulation. Her death was therefore the direct and immediate
result of someone’s intentional action, whether or not the perpetrator was Galvani.
Contrary to Galvani’s argument, since his wife’s death could not have been
caused by an accident, it is irrelevant that the complaint alleges he might have
killed his wife “negligently.” See Quan v. Truck Ins. Exchange, 79 Cal. Rptr. 2d
134, 141 (Cal. Ct. App. 1998). Moreover, the fact that Galvani might not have
strangled his wife does not make her death an accident. To hold otherwise would
be inconsistent with the term’s plain meaning, the purpose of the parties in entering
into the insurance contract, and California precedent. See Delgado, 211 P.3d at
1087-92. Since the complaint does not allege that Galvani engaged in negligent
conduct in addition to the conduct resulting in his wife’s death, Horace Mann
Insurance Co. v. Barbara B., 846 P.2d 792 (Cal. 1993), is distinguishable. In that
case, the complaint alleged negligent conduct as well as intentional conduct, so
there was a possibility of coverage and thus a duty to defend. Here, there was no
possibility of coverage and thus no duty to defend.
AFFIRMED.
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