Allstate Ins. Co. v. Takeda

• Decision Date: 14 January 2003
• Docket Number: Civil No. 01-00729 SOM/KSC.
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff, v. Paul S. TAKEDA, and Danny LoWrey, Defendants.
• Court: U.S. District Court — District of Hawaii

243 F.Supp.2d 1100

ALLSTATE INSURANCE COMPANY, Plaintiff, v. Paul S. TAKEDA, and Danny LoWrey, Defendants.

Civil No. 01-00729 SOM/KSC.

United States District Court, D. Hawai'i.

January 14, 2003.

Richard B. Miller, Mark K. Morita, Tom, Petrus & Miller LLLC, Honolulu, HI, for plaintiff.

Norman K Lau, Steven T. Barta, Melvin Y. Agena, Honolulu, HI, for defendant.

ORDER GRANTING IN PART AND DENYING IN PART ALLSTATE INSURANCE COMPANY'S MTION FOR SUMMARY JUDMENT

MOLLWAY, District Judge.

I. INTRODUCTION.

Plaintiff Allstate Insurance Company ("Allstate") brings this declaratory action to determine whether, pursuant to a homeowner's insurance policy, it must defend and indemnify Paul S. Takeda ("Takeda") in a tort action. To the extent that Allstate claims that Takeda's acts were not an occurrence or that coverage is precluded by the intentional and/or criminal acts exclusions to the policy, the court finds that there is a genuine issue of material fact as to whether Takeda acted in selfdefense, precluding summary judgment on those issues at this time. The court does, however, grant Allstate summary judgment on the issue of whether it must indemnify Takeda for any punitive damages awarded in the underlying tort action.¹ Takeda's policy clearly does not provide coverage for punitive damages.

II. BACKGROUND FACTS.

to assault in the first degree in violation of Haw.Rev.Stat. § 707-710, and a judgment of conviction was entered against him.² See Amended Judgment, Guilty Conviction and Probation Sentence in Crim. No. 00-1-1262 (Haw., First Cir, Aug. 7, 2001).

Lowrey sued Takeda in state court, alleging that Takeda had injured him with the pole. See Lmvrey v. Takeda, et al., Civil No. 00-1-3152-10 (Haw., First Cir., 2000). Lowrey alleged that Takeda was liable for assault and battery (Count I), outrageous conduct/intentional infliction of emotional distress (Count II), negligent infliction of emotional distress (Count III), and negligence (Count IV).

Takeda tendered the defense of that tort action to Allstate. Id. Allstate is providing Takeda with a defense under a reservation of rights.

The parties dispute the reason that Takeda hit Lowrey in the head with the pole. Lowrey alleged in his complaint that the altercation occurred between 10 and 11 p.m. at the Kuapa Kai Shopping Center in Hawaii Kai. Lowrey said that Takeda removed a "metal gaff from the trunk of his car and "wildly swung" it. Complaint (Civil No. 00-1-3152-10) (Oct. 17, 2000) ¶ 18. Lowrey said this action forced him to retreat to an area behind Safeway, near an establishment called The Shack. Id. According to Lowrey, Takeda then took another swing with the metal gaff, striking Lowrey in the head. Id.

Takeda has a different account. He says that, on September 4, 1999, he met Linda Tengan ("Tengan") at The Shack in the Kuapa Kai Shopping Center. See Declaration of Paul S. Takeda (Dec. 18, 2002) ¶ 2. He says Tengan made a phone call in which she told the person on the other end of the line where she and Takeda were. Id. ¶ 2. Takeda says that he and Tengan then left The Shack and walked to Safeway. As they were leaving Safeway, Takeda says, he "heard the burning of tires and an engine roaring." Id. ¶ 5. Takeda says he saw a "pickup truck speeding towards [them,] which hit [his] leg." Id. Takeda says that the driver of the pickup truck, who turned out to be Lowrey, had a "look in his eyes ... like he wanted to kill [Takeda]." Id. ¶¶ 6, 12. Takeda says Tengan went over to the pickup truck and said something to Lowrey, who "revved his engine and burned more rubber." Id. § 7. According to Takeda, he had to jump out of the way to keep from being run over. Id.

Takeda says Lowrey then parked the truck, got out of it, and walked quickly towards Tengan and Takeda. Id. ¶ 8. Takeda says that Tengan then told him that Lowrey was her ex-boyfried and that Lowrey might have a gun. Id. ¶ 9. At that point, Takeda says, he opened his van, which was parked nearby, and removed a hollow fiberglass pole from it. Id. ¶ 10. Takeda describes himself as holding his cellular phone in one right hand and attempting to call 911, while waiving the pole at Lowrey with his other hand to hold Lowrey back. Id. ¶¶ 13, 14. Takeda says he saw Lowrey suddenly reach his right hand across his waist and under his jacket, in a move Takeda says he interpreted as Lowrey's attempt to pull out a gun. Id. ¶ 5. Takeda says he "swung the pole" in self-defense, as he feared for his life. Id. ¶¶ 15, 19, 21.

It is undisputed that, at all times relevant to this action, Takeda was insured under an "Allstate Deluxe Plus Homeowners Policy," Number 007-694-634. See Declaration of Jay Hoshino (August 29, 2002) ¶¶ 4-5. The Family Liability Protection portion of that policy provides:

Subject to the terms, conditions, and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and covered by this part of the policy.

Policy, Coverage X at 28. "Occurrence" is defined in the policy as "an accident ... during the policy period, resulting in bodily injury or property damage." Policy at 4.

The Policy also states: We may investigate or settle any claim or suit for covered damages against an insured person. If an insured person is sued for these damages, we will provide a defense with counsel of our choice, even if the allegations are groundless, false or fraudulent. We are not obligated to pay any claim or judgment after we have exhausted our limit of liability.

Policy, Coverage X at 28. The policy, however, excludes coverage for "bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. ... This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime." Id.

It is undisputed that the policy does not provide coverage for punitive damages.

III. SUMMARY JUDGMENT STADARD.

Summary judgment shall be granted when:

the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial—usually, but not always, the defendant—has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099,1102 (9th Cir.2000).

The burden initially lies with the moving party to identify for the court "those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec, Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth "specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., 809 F.2d at 630 (quotation omitted). At least some "`significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact").

"[I]f the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348), cert, denied, 484 U.S. 1006 (1988); accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a `reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion"). However, when "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. All evidence and inferences must be construed in the light most favorable to the nonmoving party. Id. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id.

IV. ANALYSIS.

Allstate seeks a determination that it need not provide a defense in the tort action filed by Lowrey in state court or indemnify Takeda for any damages awarded in that action. Allstate says that Takeda's insurance policy does not cover damages arising from Takeda's striking of Lowrey because the event was not an occurrence and was either intentional or criminal. Allstate also argues that there is no coverage for...