Unpublished Disposition, 877 F.2d 64 (9th Cir. 1989)

Nos. 88-2663, 88-2786.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and NOONAN, Circuit Judges, and DWYER, District Judge.^* 

MEMORANDUM^** 

Gary Patrick Heitkamp ("Heitkamp") and his three children appeal the district court's grant of summary judgment determining that Heitkamp's liability insurance policy, issued by State Farm Fire and Casualty Company ("State Farm"), did not provide coverage for damages sustained by the children as a result of Heitkamp's having sexually molested them during their early years. The district court certified the order for appellate review under Fed. R. Civ. P. 54(b). We affirm.

Under California law, there is an irrebuttable presumption of intent to harm in child molestation cases. Such conduct is "willful" under California Insurance Code Sec. 533, and is therefore excluded from insurance coverage. State Farm v. Abraio, No. 88-1799, slip op. 3475 (9th Cir. Apr. 5, 1989).

The district court in ordering summary judgment implicitly rejected the argument that State Farm was estopped to deny coverage. Appellants' contention was that the insurer breached its duty to provide Heitkamp with independent defense counsel. Heitkamp himself selected the attorney. State Farm paid for the defense under a reservation of rights. The uncontradicted evidence showed that the attorney served his client's interests by negotiating an agreement under which the children's claims were decided in a bench trial, only negligence theories were presented (thus preserving a coverage claim against the carrier), Heitkamp's personal assets were exempted from execution to satisfy any judgment, and counsel for the children took over as counsel for Heitkamp (i.e., against State Farm) after trial of the children's claims. There is nothing to suggest any misrepresentation by State Farm or any shortcoming in effort, candor, or achievement by Heitkamp's counsel. The fact that the defense lawyer happened to represent State Farm's interests in other matters did not give rise to a triable claim of estoppel. Because there was no genuine issue for trial, summary judgment was properly entered under Fed. R. Civ. P. 56.

AFFIRMED.