Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1991)

GLOBE INDEMNITY COMPANY, Plaintiff-Appellee,v.GENERAL BANK, Li-Pei Wu, Gloria M. Chen, Richard Gill Does 1through 50, Defendants-Appellants.

No. 90-55620.

United States Court of Appeals, Ninth Circuit.

Submitted June 5, 1991.Decided July 8, 1991.

Before GOODWIN, PREGERSON and ALARCON, Circuit Judges.


MEMORANDUM** 

General Bank appeals from the order granting summary judgment in favor of Globe Indemnity Co. in Globe's declaratory judgment action.

Globe argues that the underlying action included a claim for negligent infliction of emotional distress, which would constitute an "accident" under its insurance policy with Globe. Globe contends that the actions at issue were in furtherance of General's termination of Robert Chen. It asserts that, since these actions were in furtherance of an intentional act, they could not constitute an accident.

Globe cites numerous cases that hold that wrongful discharge is an intentional tort. See, e.g., St. Paul Mercury Ins. Co. v. Ralee Eng'g Co., 804 F.2d 520, 522 (9th Cir. 1986). But these cases do not deal with the issue of whether a separate, contemporaneous act can give rise to a cause of action for negligence.

As an abstract proposition, there may be some merit to General's argument that Richard Gill could have engaged in negligent actions contemporaneous to, but separate from, General's intentional termination of Chen. The fact that someone has committed an intentional tort should not bar recovery for a separate negligent act.

On the record presented in this matter, however, General has failed to raise a genuine issue of material fact as to whether any of Gill's conduct was "accidental." Gill shouted at Chen. There is nothing in the record that indicates that the shouting was unintentional. Taking all of General's factual assertions as true, there is no evidence that raises a genuine issue of material fact as to whether there was an "accident" within the scope of the policy.

General also argues that even if the events were not covered by the policy, Globe's assumption of the defense acted as a waiver of the right to claim attorney's fees because Globe's reservation of rights did not specifically include attorney's fees.

Globe informed General that Globe would "proceed with the investigation and defense of this lawsuit with FULL RESERVATION of our rights" and that defending the suit did not "constitute an admission of liability or coverage." (Caps on original.) The letter informed General that if Globe won a declaratory judgment that the subject of Chen's suit was not within the scope of the insurance policy, Globe would look to General "for any reasonable expenses, settlement, or judgment which it has paid on account of [Chen's] claim." General asserts that attorney's fees are not included in the term "expenses." It cites Matter of Sparkman, 703 F.2d 1097 (9th Cir. 1983), and Cal.Civ.Code Sec. 1717 for the proposition that attorney's fees may only be recovered if the reservation letter specifically provides for attorney's fees.

General's authority is inapposite. Section 1717 provides, in pertinent part:

In any action on a contract, where the contract provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded to either one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract, shall be entitled to reasonable attorney's fees in addition to other costs.

Cal.Civ.Code Sec. 1717 (Deering 1991 Supp.). Thus, Section 1717 creates a statutory right to attorney's fees for the prevailing party whenever the contract creates a right in one party. Section 1717 does not set forth the words the parties must use to indicate that attorney's fees will be awarded to a party.

General's reliance on Sparkman is also misplaced. In Sparkman, the question presented was whether Sparkman was the prevailing party since he had not obtained all the relief he had requested. Id. at 1100. We did not discuss the question whether the contract provided for attorney's fees.

The reservation letter in the instant matter informed General that Globe would seek reimbursement for any expenses paid because of Chen's claim. The plain meaning of this language is that Globe would seek reimbursement for all legal expenses which Globe incurred in defending against the underlying claim, including attorney's fees.

The district court did not abuse its discretion in denying General's Rule 56(f) motion for additional time for discovery because General did not show "there is some basis for believing that the information actually exists." Visa Int'l Service Ass'n v. Bankcard Holders, 784 F.2d 1472, 1475 (9th Cir. 1986).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 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