Unpublished Disposition, 940 F.2d 670 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 940 F.2d 670 (9th Cir. 1988)

Anthony E. UZETA, Plaintiff-Appellant,v.ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

No. 90-15189.

United States Court of Appeals, Ninth Circuit.

Submitted April 11, 1991.* Decided July 18, 1991.

Before HUG, POOLE and FERGUSON, Circuit Judges.f


MEMORANDUM** 

Plaintiff, Edward R. Del Carlo (Del Carlo), executor of the estate of Anthony E. Uzeta (Anthony)1 , appeals from the District Court's order granting summary judgment to defendant Allstate Insurance Company (Allstate), regarding Allstate's duty to defend and indemnify Anthony against a forcible detainer suit brought by his brother Raymond Uzeta (Raymond), the conservator of their mother's estate. We affirm.

BACKGROUND

In 1971, Anthony's mother Maria Cortez (Maria) wrote a will devising her property at 111-113 Coleridge (Coleridge property) to her son, Anthony. In March 1983, Maria decided to deed the Coleridge property to Anthony and his brother Peter Uzeta (Peter). However, the Probate Department of the Superior Court in San Francisco found Maria incompetent and appointed Raymond conservator in August, 1984. In 1986, Raymond, on behalf of Maria, filed suit in San Francisco Superior Court to set aside the 1983 deed from Maria to Anthony and Peter [and to recover the real property at Coleridge Street] on the ground that the deed was executed under undue influence.

On November 21, 1988, a jury found that Maria executed the deed as a result of undue influence by Anthony and Peter, and quieted title in Raymond as conservator of the estate. Anthony appealed from the judgment but neither Anthony nor Peter attempted to stay the enforcement. Anthony refused to leave the Coleridge property despite the service of several notices to vacate the premises.

In 1989, Raymond filed a first amended complaint for forcible detainer in the San Francisco Municipal Court, against Anthony and Peter, alleging that the " [d]efendants and each of them have unlawfully held the property by force, menacing conduct, and conduct tending to inspire a just apprehension of force or violence." Anthony tendered the defense of the forcible detainer action to Allstate, contending defense of the action fell under the terms of his homeowners policy covering the Coleridge property. However, Allstate promptly declined. Anthony sued Allstate for an alleged bad faith breach of its obligation to defend and indemnify him in the forcible detainer action.

DISCUSSION

Del Carlo contends that the District Court erred in granting Allstate's motion for summary judgment.

According to Federal Rule of Civil Procedure 56(c), summary judgment is proper when " [p]leadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A factual dispute is material with respect to a motion for summary judgment if it affects the outcome of the litigation, and is genuine if manifested by substantial evidence going beyond the allegations of the complaint. Holloway v. Pigman, 884 F.2d 365 (8th Cir. 1989), Allen v. A.H. Robins Co., Inc., 752 F.2d 1365 (9th Cir. 1985), Precision v. Polaroid Corp., 657 F.2d 482 (1st Cir. 1981).

Anthony's homeowner's policy states that, "subject to the terms, limitations and conditions of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy." (ER 146; CR 21, Ex. A at 23). Del Carlo argues that the question whether his holdover in the Coleridge property was an "accident" within the policy constitutes a material issue of fact.

In Merced Mutual Insurance Company v. Mendez, 213 Cal. App. 3d 41, (1989), the court held that deliberate and purported conduct on the part of the insured does not give rise to an accident within the meaning of the liability policy. (Merced Mutual Ins. Co. v. Mendez, 213 Cal.App.3d at 50-53). The Mendez Court stated:

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.

In the present case, Anthony intentionally and deliberately refused to surrender possession of the Coleridge property despite requests to do so. Thus, Anthony's deliberate acts resulted in the forcible detainer action brought by his mother. Because Anthony deliberately and purposefully occupied the property and denied his mother possession, Anthony's conduct does not constitute an accident within the meaning of his insurance policy as a matter of California law. see Merced Mutual Ins. Co. v. Mendez, 213 Cal.App.3d at 50-53; Insurance Co. of the West v. Haralambos Beverage Co., 195 Cal. App. 3d 1308, 1318 (1987). See also Hartford Fire Ins. Co. v. Karavan Ent., Inc., 659 F. Supp. 1075, 1077 (N.D. Cal. 1986). Accordingly, Anthony Uzeta's accident claim is not a factual issue sufficient to withstand summary judgment.

In support of his claim, Del Carlo cites Gray v. Zurich Ins. Co., 65 Cal. 2d 263 (1966). In Gray, the California Supreme Court held that an insurer was obliged to defend its insured against a civil assault claim, despite a policy exclusion for injury intentionally caused by the insured. The court held that because the insured "might have been able to show that in physically defending himself, even if he exceeded the reasonable bounds of self defense, he did not commit wilful and intended injury, but engaged only in nonintentional tortious conduct." Id. at p. 273

Analogizing the circumstances in this case to those in Gray, Del Carlo argues that even though Anthony's holdover in the Coleridge property was deliberate, it was done in self-defense of his testimonial expectancy. Thus, Raymond's loss of possession resulting from the holdover was never intended. (Blue Brief at p. 17) However, Del Carlo fails to explain how Anthony's holdover in the Coleridge property serves to protect Anthony's testamentary interest. Indeed, the fact that Anthony resides in the Coleridge property seems to have no bearing what so ever on whether he will inherit the Coleridge property under Maria's will.

Further, Gray does not pertain to a liability policy which provides insurance coverage only for an "accident" and does not involve facts showing purposeful conduct on the part of the claimant as does the instant case. Moreover, Gray mainly involves the construction of California Insurance Code Sec. 533 and analogous policy exclusions regarding intentional and willful acts. Id. at 218. Thus, Gray is distinguishable from the case at bar. see also Giddings v. Industrial Indemnity Co., 112 Cal. App. 3d 213, 218 (1980) (distinguishing Gray for similar reasons).

Even if Del Carlo could show that there may still be issues of fact to be determined regarding the accidental nature of his holdover in the Coleridge property, such issues may not be material. Del Carlo contends that the applicable policy is Allstate policy form no. AU 404 which indemnifies the holder for any accident resulting in bodily injury, or damage to physical injury to tangible property, as well as loss of use stemming from such injury. Thus, a mere showing that an act may have been an accident is not enough to change the outcome. Del Carlo must also show that the accident caused bodily injury, or property damage.

Del Carlo argues that Anthony's accidental conduct caused Maria's "loss of use" of the Coleridge property, which is specifically covered under the policy, the accident caused necessary damage to property. However, simple loss of use is not enough. The policy requires that the "loss of use" results from some physical injury to tangible property.2  None is alleged here.

If Del Carlo cannot show that Anthony's holdover caused bodily injury or damage to tangible property, even if he shows the holdover was accidental, it is not a material issue which warrants reversal of the district court's granting of summary judgment. Therefore, we affirm the decision of the District Court.

SANCTIONS UNDER FRAP 38

Allstate contends that Del Carlo should be required to pay attorney's fees and/or costs on appeal.

Federal Rule of Appellate Procedure 38 gives this court discretion to assess such damages as a sanction against bringing a frivolous appeal. An appeal is considered frivolous in this circuit when the result is obvious, or the appellant's arguments of the error are wholly without merit. Jaeger v. Canadian Bank of Commerce, 327 F.2d 743, 746 (9th Cir. 1964), Libby, McNeill, and Libby v. City National Bank, 592 F.2d 504, 514 (9th Cir. 1978), McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981).

The arguments advanced by Del Carlo on this appeal do not seem wholly without merit nor was the end result obvious. Since the appeal was not completely frivolous, there is no basis for an award of attorney's fees and costs on appeal.

Affirmed. Sanction denied.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Plaintiff Anthony E. Uzeta died in January or February, 1991; Mr. Edward R. Del Carlo is the executor of the estate. Mr. Del Carlo's motion for substitution of party and submission of this case on the briefs was granted by this panel on April 8, 1991

 2

In California "physical injury to tangible property" has been interpreted literally to mean just that, damage to tangible property. Therefore, it does not include intangibles such as good will. Hogan v. Midland National Insur. Co. 3 Cal. 3d 553, 562-563 (1970)

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