Sutton v. Interins. Exchange of Auto. Club 6/11/08 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B198855

Case Date: 09/10/2008

Preview:Filed 6/11/08 Sutton v. Interinsurance Exchange CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

VINCENT SUTTON, Plaintiff and Appellant, v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Defendant and Respondent.

B198855 (Los Angeles County Super. Ct. No. BC341289)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph R. Kalin, Judge. Reversed. Golob, Bragin & Sassoe and Albert L. Sassoe, Jr., for Plaintiff and Appellant. Inglis, Ledbetter & Gower, Richard S. Gower and Gregory J. Bramlage for Defendant and Respondent.

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The question on this appeal is whether an intentional act by an insured, taken in self-defense, may qualify as an "accident" for purposes of an insurance policy written to provide defense and indemnification for the insured. The answer is yes; the trial court erred in ruling that it cannot. Consequently, the ensuing judgment for the insurer, based on its successful motion for summary judgment, must be reversed.
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The appellant in this case, Vincent Sutton (Sutton), was insured under a homeowners policy issued by respondent Insurance Exchange of the Automobile Club of Southern California (Auto Club). The appeal arises from Auto Club's successful motion for summary judgment against Sutton in his suit for breach of the insurance contract and the implied covenant of good faith and fair dealing.

FACTUAL AND PROCEDURAL SUMMARY Most of the factual background in this case is undisputed, and resolution of the issue does not depend on the facts that are disputed. The undisputed facts show that on December 31, 2004, Vincent Sutton and his wife attended a New Year's Eve party at the home of their longtime friends, Sherrill and Judy Sipes. While at the party Sutton made a joke at which some other guests took offense. Angry words were exchanged between them and Sutton. Richard Skinner, one of the offended guests, was among those who made insulting remarks to Sutton. Sutton and his wife left the Sipes home, but Sutton soon decided to return. According to him, he did so because he had not said goodbye to the hosts. According to Auto Club, Sutton returned because he resented being thrown out of the party by Skinner. The two men encountered each other inside the house. Skinner is a large man, 6 feet 7 inches tall and weighing close to 300 pounds, and was "imposing." According to Sutton, as he entered the kitchen, Skinner approached and grabbed for Sutton's throat. A witness said Sutton made an insulting remark to Skinner, who then lunged with his right hand toward Sutton's throat. As this was happening, The issue presented is before the California Supreme Court in two cases, Delgado v. Interinsurance Exchange, etc. (S155129), and Jafari v. EMC Insurance Co. (S157924). 2
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Sutton punched Skinner in the face. In an earlier version, Sutton accepted Mr. Sipes's recounting of the encounter in which Mr. Sipes said Sutton struck Skinner with an outstretched arm. Sutton later repeated that version to several others, including an Auto Club person who questioned him. A later version by Sutton, supported by some witnesses, is that Skinner struck him in the chest, after which he hit Skinner. Skinner fell to the floor, striking his head on cabinets and hardware as he fell. Sutton's final version is that he reacted instinctively in striking Skinner to keep Skinner away. From the first to the last, Sutton maintained that he acted instantaneously and in self-defense. Sutton received a letter from Skinner's attorneys, threatening suit. He proffered the letter to Auto Club. Skinner and his wife then filed suit against Sutton, asserting causes of action for negligence and intentional tort. Sutton tendered the lawsuit to Auto Club for defense and indemnification under his homeowners policy. Auto Club investigated the claim, determined that Sutton's act in striking Skinner was not accidental, and declined to defend or indemnify. Sutton financed the defense of the Skinner suit with his own funds and eventually settled that litigation. Sutton's suit against Auto Club for breach of contract and breach of the implied covenant of good faith and fair dealing was met by Auto Club's motion for summary judgment. Auto Club argued that Sutton's act in striking Skinner was deliberate, hence not accidental, and not covered by the policy. In its ruling, the trial court recounted the factual assertions of the parties and concluded that there was no potential for coverage under the policy, and hence no duty to defend. It explained: "The policy language has specific limitations on coverage for bodily injury by each occurrence. `Occurrence means by accident . . . which results in bodily injury.' Defendant takes the position that the altercation between the parties was an intentional act and not an accident and thus outside the coverage. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "The court finds there are no disputed issues of material facts and the Motion for Summary Judgment is granted as a matter of law.

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"The court finds there is no potential for coverage under the policy for an intentional act. The reading of the policy and the undisputed facts show no possibility for coverage. Sutton's striking of Skinner whether as an aggressor or in self defense was an intentional act and under the policy is not an accident. An accident being an unintended act. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "The provisions of the insurance policy are not ambiguous. The contact between Sutton and Skinner was clearly intentional." Judgment was entered in favor of the Auto Club and against Sutton, and Sutton filed a timely notice of appeal.

DISCUSSION Auto Club is entitled to summary judgment if there are no issues of material fact which, if established, would support a cause of action in favor of Sutton. (Code Civ. Proc,

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