874 F.2d 619 (9th Cir. 1989), 88-1799, State Farm Fire and Cas. Co. v. Abraio

Docket Nº:88-1799.
Citation:874 F.2d 619
Party Name:STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellee, v. Patricia ABRAIO, as Personal Representative of Antoine Abraio, Deceased, Louis Abraio and Tiffany K., a minor, by and through her guardian ad litem Adeline Dennis, Defendants, Appeal of Adeline DENNIS, individually, Defendant.
Case Date:April 05, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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874 F.2d 619 (9th Cir. 1989)

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellee,

v.

Patricia ABRAIO, as Personal Representative of Antoine

Abraio, Deceased, Louis Abraio and Tiffany K., a

minor, by and through her guardian ad

litem Adeline Dennis, Defendants,

Appeal of Adeline DENNIS, individually, Defendant.

No. 88-1799.

United States Court of Appeals, Ninth Circuit

April 5, 1989

Submitted Feb. 16, 1989.[*]

As Amended July 25, 1989.

Jill Elaine Weissich, San Rafael, Cal., for defendants-appellants.

Gail Y. Norton and Geordie L. Duckler, Ropers, Majeski, Kohn, Bentley and Kane, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, SNEED and NOONAN, Circuit Judges.

CHOY, Circuit Judge:

Defendants Patricia Abraio, Louis Abraio, Tiffany K. and Adeline Dennis appeal from the district court's grant of summary judgment to plaintiff State Farm Fire and Casualty Insurance Co. ("State Farm"). State Farm sought a declaratory judgment that it owed no duty to defend or indemnify Antoine Abraio's estate in a tort action brought against the estate in a California court by Tiffany K. and her mother Adeline Dennis. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.

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FACTUAL BACKGROUND

On October 2, 1984, the Marin County District Attorney filed an information against Antoine Abraio, charging him with sexually molesting Tiffany K., an eight year old girl. Abraio was charged with one count of violating California Penal Code Sec. 288(a). 1 Abraio admitted to fondling Tiffany K. and touching her genitals on several occasions during the summer of 1984. The incidents occurred at Tiffany's home and on occasions when Abraio took her on motorcycle rides in the country. In November, 1984, Abraio pled guilty to one count of Penal Code Sec. 647a, a misdemeanor. 2 Abraio served a six month jail sentence. Soon after his release, Abraio died from a gunshot wound to the head which was apparently self-inflicted.

On January 23, 1986, Tiffany K.'s guardian ad litem filed a state court action against Abraio's estate seeking compensatory and punitive damages for Tiffany under various intentional tort and negligence theories. The defense of the case was ultimately tendered to State Farm, Abraio's father's insurance company. Acknowledging that Abraio had been covered by his father's homeowner's policy during the period in question, State Farm assumed the defense under a reservation of rights. State Farm then filed this action in federal court on the basis of diversity of citizenship. State Farm sought a declaratory judgment that it owed no duty to Abraio's estate because Abraio's actions were excluded from coverage.

State Farm moved for summary judgment, relying upon the policy language, upon California Insurance Code Sec. 533, and upon Allstate Ins. Co. v. Kim W., 160 Cal.App.3d 326, 206 Cal.Rptr. 609 (1984). The State Farm homeowner's policy excluded from coverage "bodily injury or property damage which is expected or intended by the insured" while California Insurance Code Sec. 533 provides that an insurer is not liable for losses caused by the insured's willful acts. 3 In Kim W., a California appellate court held that acts which would constitute a violation of Penal Code Sec. 288 are "willful" within the meaning of Sec. 533 as a matter of law.

In response, defendants relied upon Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978), in which the California Supreme Court held that an insurance company is only exonerated from liability under Sec. 533 when the insured's acts were done with a "preconceived design to injure." Id. at 297, 587 P.2d at 1110. Defendants argued that Clemmer required a subjective intent to harm and that Abraio did not have such an intent, but rather acted out of affection for Tiffany. In support of this claim, defendants produced affidavits from Abraio's criminal defense attorney and Tiffany's therapist stating their opinions that Abraio had not intended to harm Tiffany. In addition, defendants produced the affidavit of a medical doctor who stated his opinion that the heart medication that Abraio was taking at the time of the molestation may have prevented Abraio from being able to form a specific intent to harm Tiffany.

The district court granted State Farm's motion for summary judgment and entered a declaratory judgment that State Farm owed no duty to indemnify Abraio. 683

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F.Supp. 220. The district court determined that Abraio's actions were "willful" within the meaning of Sec. 533 and therefore excluded from coverage.

STANDARD OF REVIEW

California's substantive insurance law governs in this diversity case. James B. Lansing Sound Inc. v. National Union Fire Ins. Co., 801 F.2d 1560, 1561 (9th Cir.1986). However, there is no California Supreme Court case addressing the issue presented on this appeal. When the state supreme court has not ruled definitively on a point, this court looks to decisions by intermediate appellate state...

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