Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1991)

ALLSTATE INSURANCE, Plaintiff-Appellee,v.John C. NICHOLS, Jane Doe Nichols, Miriam A. Nichols,Defendants-Appellants.

No. 90-15255.

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 1991.* Decided May 17, 1991.

Before ALARCON, KOZINSKI and RYMER, Circuit Judges.


Under Arizona law, an insurer has no duty to defend its insured if the alleged facts in a complaint fail to bring the case within the policy coverage. Kepner v. Western Fire Ins. Co., 509 P.2d 222, 224 (Ariz.1973) (citation omitted). Such is the case here, where Miriam Nichols's complaint in her underlying action alleges facts that trigger the intentional acts exclusion in John Nichols's insurance policy.

Our conclusion is based upon Miriam's allegation that John intentionally breached his obligations under the Decree of Dissolution of their marriage, which is the conduct that supports both her intentional and negligent infliction of emotional distress claims. Under Arizona law, "if the nature and circumstances of the insured's intentional act were such that harm was substantially certain to result, intent may be inferred as a matter of law." Phoenix Control Sys., Inc. v. Insurance Co. of N. Am., 796 P.2d 463, 468 (Ariz.1990) (citations omitted). Any intentional act in violating the Decree was substantially certain to result in some type of harm to Miriam. Under Phoenix Control, therefore, we infer as a matter of law John's intent to harm Miriam in some fashion, given an intentional violation of the Decree.

For purposes of the intentional acts exclusion in his insurance policy, once we have concluded that John intended to harm Miriam in some fashion through his alleged act, that intent necessarily encompasses the intent to cause the specific harm of which she complains, namely, emotional distress. Transamerica Ins. Group v. Meere, 694 P.2d 181, 184-85 (Ariz.1984) (citation omitted) (where insured intends to cause injury, he cannot evade intentional acts exclusion by complaining that resultant injury is different in character or magnitude from injury intended). We do not consider John's allegations that there are issues of fact regarding his subjective intent to harm because, absent a claim of provocation, privilege or justification, such allegations are immaterial. Phoenix Control, 796 P.2d at 468. Thus, as a matter of law, John intended to cause Miriam emotional distress, given her complaint's allegation that he intentionally violated the Decree. Because John's policy clearly excludes coverage for injury intended by an insured person, Allstate had no duty to defend, Kepner, 509 P.2d at 224, and, consequently, no duty to indemnify.

Because there are no issues of material fact and Allstate had no duty to defend John or indemnify his potential loss as a matter of law, the district court properly granted Allstate's motion for summary judgment and denied John's cross motion for summary judgment.



The panel unanimously finds this case suitable for decision 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