Unpublished Disposition, 936 F.2d 576 (9th Cir. 1991)

No. 90-55442.

United States Court of Appeals, Ninth Circuit.

Before PREGERSON, BRUNETTI and THOMAS G. NELSON Circuit Judges.

MEMORANDUM^** 

Peter Calloway ("Calloway"), insured under a homeowner's policy issued by Allstate Insurance, threw a bottle during a fight with his neighbors that hit and injured Raul Ceron. Ceron then brought a personal injury action against Calloway in state court. After Ceron filed his action, Allstate brought a declaratory judgment action in federal court in which it argued it had no duty to defend or indemnify Calloway because his intentional act was excluded from coverage under the policy. The district court ruled that Allstate had to defend and indemnify Calloway. We affirm.

* The Allstate policy covers the costs of "an accidental loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage...." The policy specifically excludes from coverage "any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts of, an insured person...." Allstate argues that Calloway's conduct was excluded from coverage under the policy because Calloway intentionally threw the bottle, and because it was reasonable to expect that Ceron or someone else would be injured by Calloway's actions.

II

Under California law, "the duty to defend is broad and insurance policies must be interpreted so as to protect the reasonable expectations of the insured." St. Paul Fire & Marine Ins. Co. v. Superior Court, 161 Cal. App. 3d 1199, 1202, 208 Cal. Rptr. 5, 6 (1984). An insurer has a duty to defend its insured whenever it ascertains facts which give rise to potential liability under the policy. Royal Globe Ins. Co. v. Whitaker, 181 Cal. App. 3d 532, 536, 226 Cal. Rptr. 435, 437 (1986). If there is any doubt whether the insurer must defend, it should be resolved in favor of the insured. St. Paul Fire, 161 Cal. App. 3d at 1202.

Any ambiguity or uncertainty in the policy must be resolved against the insurer. Reserve Ins. Co. v. Pisciotta, 30 Cal. 3d 800, 807, 180 Cal. Rptr. 628, 632 (1982) (en banc). Coverage clauses are interpreted broadly to provide the greatest possible protection to the insured; exclusionary clauses are interpreted narrowly against the insurer. Id., 30 Cal. 3d at 808. An insurer bears the burden of proving a claim falls within an exclusion. Royal Globe, 226 Cal. Rptr. at 437.

The district court concluded that the exclusion in the Calloway policy was ambiguous because it did not make clear whether the phrase "intentional act" referred merely to the intent to act, or to the intent to cause the consequences of the act. The court also ruled that Allstate failed to prove that Calloway intended to injure Ceron.

The California Supreme Court decision in Clemmer v. Hartford Ins. Co., 22 Cal. 3d 865, 151 Cal. Rptr. 285 (1978) (en banc), supports the district court's conclusion. In Clemmer, the survivors of a victim who had been shot and killed by the insured sued the insurance company to recover on a wrongful death judgment. The insurance company argued that the insured's shooting of the victim was a willful act excluded from coverage. The trial court instructed the jury to find the insured's conduct willful if he "had the mental capacity to intend to shoot and harm" the victim. Id. at 887. On appeal, the Court upheld the instruction, concluding that under California law, an act that is intentional or willful under traditional tort principles will not exonerate the insurer from liability "unless it is done with a preconceived design to inflict injury." Id.

Other California cases have specifically held that an insured's intentional act did not fall within an intentional act exclusion where the insured was, or arguably could have been, acting in self-defense. In Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 54 Cal. Rptr. 104, 110 (1966), for instance, the California Supreme Court held that the insurer had a duty to defend the insured against a civil action for assault because the intentional act exclusion did not exclude actions taken by the insured in self-defense. The exclusionary clause excluded damage caused " 'intentionally by or at the direction of the insured.' " Id., 54 Cal. Rptr. at 106. Applying the rule that exclusionary clauses must be clearly stated, the Court found the exclusion ambiguous because an insured's intentional act may cause unintended harm. Id., 54 Cal. Rptr. at 110. Because the loss could have fallen within the limits of the policy, the court concluded the insurer should have defended the insured. Id.

Following Gray, the court in Mullen v. Glens Falls Ins. Co., 73 Cal. App. 3d 163, 140 Cal. Rptr. 605, 609 (1977) held that an insurer had a duty to defend its insured against a personal injury lawsuit brought by a gas station attendant who the insured struck with a tire iron. The court stated, "It is now settled that injuries resulting from acts committed by an insured in self-defense are not 'intended' or 'expected' " within the meaning of typical intentional act exclusionary clauses. Id. at 170. The court determined that the tort suit could potentially have given rise to liability under the policy because, for all the insurance company knew, the attendant could have started the fight, and the insured could have struck back in self-defense. Id. See also Walters v. American Ins. Co., 185 Cal. App. 2d 776, 8 Cal. Rptr. 665 (1960) (intentional act exclusion did not exclude insured's assault of passenger where insured acted in self-defense and there was no finding of unreasonable or excessive force).

Because Allstate did not disprove that Calloway was acting in self-defense when he threw the bottle, the district court correctly concluded that Calloway's action did not constitute an intentional act.

AFFIRMED.