Am. Strategic Ins. Corp. v. Clark
| Decision Date | 19 December 2013 |
| Docket Number | No. 1 CA-CV 12-0881,1 CA-CV 12-0881 |
| Parties | AMERICAN STRATEGIC INSURANCE CORPORATION, a Florida Corporation, Plaintiff/Appellee, v. EMILEIGH CLARK and TYLER CLARK, Husband and Wife, Defendants/Appellants. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
AFFIRMED
By William A. Nebeker, Zahnie L. Soe Myint, and John H. Cline
Jardine Baker Hickman & Houston, Phoenix
By Michael Warzynski
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.
¶1 Emileigh Clark appeals the trial court's order granting summary judgment in favor of American Strategic Insurance Corporation ("ASI"). For the following reasons, we affirm.
¶2 The pertinent facts, which the parties do not dispute for purposes of resolving this appeal, are as follows. On the morning of January 31, 2011, Ryan Masi was walking his two dogs, a Schnauzer and a tan Pit Bull. At some point, Clark was awakened when she heard someone yelling from behind her house. Clark observed that a brown Pit Bull was fighting with the tan Pit Bull Masi had on a leash. Clark called out to Masi and he asked for help. Clark jumped over her fence and grabbed the unleashed brown Pit Bull, separating it from the tan Pit Bull and thus ending the fight.
¶3 Moments later, however, the tan Pit Bull escaped from Masi's control and severely bit Clark's hand. After Masi was able to get his Pit Bull under control, Clark asked him several times if his dog had its shots. Masi responded that he would go put his dogs away and then come back. Clark tried to persuade Masi to stay at the scene but he left and did not return.
¶4 Clark received medical attention for the wound she sustained from dog bite. Because Masi did disclose whether the dog had its shots, Clark underwent treatment to prevent her from contracting rabies. Consequently, Clark developed a "serious and debilitating infection that could have been more aptly treated but for . . . Masi's disappearance."
¶5 Clark sued Masi for personal injuries she suffered, alleging Masi acted negligently by (1) failing to control his dog and (2) failing to render aid by informing Clark whether the dog had been properly vaccinated for rabies. Clark alleged Masi's failure to inform "needlesslycompounded and exacerbated" her injuries. Clark also alleged that Masi's failure to report the dog bite to law enforcement as required by state statute was negligence per se.
¶6 Masi's homeowner's insurance policy, in effect at the time of the incident, was issued by ASI. In pertinent part, the policy provided Masi liability coverage as follows:
The policy defined "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results . . . in . . . '[b]odily injury'." The policy excluded any coverage for damages caused by animals, but Masi purchased an animal liability endorsement, which provided coverage for "loss caused by animals" that he "owned or kept." This expanded coverage, however, specifically excluded coverage for certain breeds of dogs, including Pit Bulls:
SECTION II - EXCLUSIONS
Under E. Coverages E - Personal Liability and F - Medical Payments to Others Coverages E and F do not apply to the following:
Item 10. is replaced by the following:
owned or kept by you or any insured, resident or guest whether or not the damage occurs on your premises or any other location.
¶7 During the pendency of the underlying negligence case between Clark and Masi, ASI filed a complaint for declaratory judgment against Masi and Clark. ASI alleged it had no duty to defend or indemnify Masi for personal liability involving alleged damages as a result of a dog bite because all injuries Clark sustained were caused by a prohibited breed of dog as defined in the insurance policy. ASI then moved for summary judgment. In response, Clark contended that the physical injuries she suffered as a result of Masi's negligence in failing to inform her of the dog's medical condition were not "caused by" the dog bite.
¶8 Following oral argument, the trial court granted ASI's motion, finding that the exclusion contained in the animal liability endorsement "is valid and applies to the bodily injuries caused by the Pit Bull." The court also found that Clark's argument of liability based on Masi's acts after the dog bite "does not eliminate the original cause of the injuries, which was the dog bite." Consistent with its ruling, the court entered judgment in favor of ASI, declaring that ASI "has no duty to defend and/or indemnify" Masi for the claims alleged by Clark in the underlying lawsuit. Clark then timely appealed.1
¶9 We review the trial court's grant of summary judgment, which is based upon its interpretation of ASI's homeowner's insurance policy, de novo. California Cas. Ins. Co. v. Am. Family Mut. Ins. Co., 208 Ariz. 416, 418, ¶ 5, 94 P.3d 616, 618 (App. 2004). We may affirm the court's ruling if it is correct for any reason. City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 111, ¶ 14, 32 P.3d 31, 36 (App. 2001). When reviewing a contract, it must be "read as a whole in order to give a reasonable and harmonious meaning and effect to all of its provisions." Nichols v. State Farm Fire & Cas. Co., 175 Ariz. 354, 356, 857 P.2d 406, 408 (App. 1993). We also interpret insurance contracts according to their plain and ordinary meaning, and if unambiguous, we will not create ambiguity to benefit one party to the detriment of another. Keggi v. Northbrook Prop. and Cas. Ins. Co., 199 Ariz. 43, 46, ¶ 11, 13 P.3d 785, 788 (App. 2000). "In determiningwhether an ambiguity exists in a policy, the language should be examined from the viewpoint of one not trained in law or in the insurance business." Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. 529, 534, 647 P.2d 1127, 1132 (1982).
¶10 Clark concedes that the allegation in her underlying complaint that Masi's failure to control his Pit Bull falls within the policy exclusion rejecting coverage for certain breeds of animals. Instead, she focuses on Masi's failure to inform her whether the dog had timely received rabies shots. Clark asserts that Masi's negligence in failing to convey that information to her constitutes a separate "occurrence" under the policy. We disagree.
¶11 As a threshold matter, we examine whether Masi's failure to inform Clark about the medical condition of his dog is an "occurrence," which is defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results . . . in . . . '[b]odily injury'." An "accident" does not include intentional behavior. See Century Mut. Ins. Co v. S. Ariz. Aviation, Inc., 8 Ariz. App. 384, 386, 446 P.2d 490, 492 (1968) () (internal quotation omitted); Black's Law Dictionary 15 (9th ed. 2009) (defining "accident" as "[a]n unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated"). Clauses limiting coverage to conduct that result in unexpected and unintentional injuries are "designed by the insurer to exclude indemnification when the insured suffers a loss resulting from the exercise of his own volition[.]" Transamerica Ins. Group v. Meere, 143 Ariz. 355, 356, 694 P.2d 181, 186 (1984). Therefore, intended conduct is excluded from coverage because the insured "is assumed to have controlled the risk." Id. (quoting 7A Appleman, Insurance Law and Practice, § 4492.01 at 21 (1979)).
¶12 Viewing the evidence in the light most favorable to Clark, after she was injured by the dog, Masi told her to let him go put his dogs away and he would "come back." Clark then alleged that Masi "never returned to help . . . and never provided information about the dog or thestatus of its health." Masi therefore made a conscious decision to not inform Clark of the dog's medical condition or return after he restrained his dog to answer her questions. As such, his actions were not part of an "undesigned, sudden, and unexpected event[.]" S. Ariz. Aviation, 8 Ariz. App. at 386, 446 P.2d at 492. Because intentional conduct falls outside the definition of an accident, Masi's failure to inform is not a covered "occurrence" according to the plain language of Masi's policy.2
¶13 Clark argues that the term "caused by" in the animal liability endorsement should not be interpreted to include coverage for Masi's separate conduct. Specifically, Clark contends that if bodily injury was "caused by" some other agency than a prohibited breed of dog, the policy's exclusion does not apply.
¶14 Here, the animal coverage endorsement excludes bodily injuries "caused by prohibited breeds of dogs." (Emphasis added). A Pit Bull is one of the...
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