Interinsurance Exchange v. Flores

• Decision Date: 14 May 1996
• Docket Number: No. B089354,B089354
• Citation: 45 Cal.App.4th 661,53 Cal.Rptr.2d 18
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3420, 96 Daily Journal D.A.R. 5551 INTERINSURANCE EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Plaintiff and Respondent, v. Rosemary FLORES etc., Defendants and Appellants.

Page 18

53 Cal.Rptr.2d 18

45 Cal.App.4th 661, 96 Cal. Daily Op. Serv. 3420,

96 Daily Journal D.A.R. 5551

INTERINSURANCE EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Plaintiff and Respondent, v. Rosemary FLORES etc., Defendants and Appellants.

No. B089354.

Court of Appeal, Second District, Division 6, California.

May 14, 1996.

Diane M. Matsinger; Eaton & Jones, and Samuel K. Eaton, Jr., Santa Barbara, for Defendants and Appellants.

Gilbert, Kelly, Crowley & Jennett, and Peter J. Godfrey, Los Angeles, for Plaintiff and Respondent.

GILBERT, Associate Justice.

An insured drives his van to a location to allow his passenger to shoot someone from the van. The driver has a standard auto insurance policy that provides coverage for injuries caused by an accident. Does the policy provide the driver with coverage for injuries to the victim? No.

Rosemary and David Flores (Flores) appeal from the judgment in favor of respondent, Interinsurance Exchange of the Automobile Club of Southern California (Automobile Club) in this declaratory relief action. We affirm the judgment.

FACTS

The facts are stipulated. An unknown pedestrian punched Eric Michael Sanders in the face while Sanders sat in his van waiting for a traffic light to change at State Street and Figueroa in Santa Barbara. Sanders told Roger Perez of the incident. Perez suggested they return to the scene, locate the assailant and seek retribution. Perez told Sanders he was armed with a handgun before he and others got into the van. Sanders knew that someone was likely to get shot. He drove Perez and the others back to the intersection where Sanders had been punched. David Flores stood on the corner of the intersection. While Sanders drove by, Perez intentionally shot and injured Flores from the van. The van itself did not inflict any injury on Flores, nor was it used to block or pin down Flores.

After his arrest for his involvement in the shooting, Sanders admitted that he knew someone was likely to be shot. In the criminal action Sanders pled nolo contendere to the felony of aiding and abetting the shooting of Flores (Pen.Code, § 245, subd. (a)(2)). (People v. Sanders (Super. Ct. Santa Barbara County, 1990, No. 182329).)

Rosemary Flores, individually, and as guardian ad litem for David Flores, filed the underlying civil suit against Sanders and others for conspiracy, battery and negligence. The Flores' suit alleged, inter alia, that Sanders and Perez "agreed to hunt down, shoot, and either kill or maim the perpetrator of the Sanders' attack, using Roger Perez' .22 caliber handgun." These allegations were incorporated into each cause of action in the Flores' suit.

Sanders owns the van involved and his parents insured it for him under an automobile insurance policy issued by the Automobile Club. The Automobile Club reserved its rights to deny coverage and filed the instant declaratory relief action to determine whether or not it had a duty to defend or indemnify Sanders for liability in the underlying Flores' action under the policy.

The trial court denied summary judgment to the Automobile Club and the parties proceeded to trial by the court on the stipulated facts. After trial, the trial court found that the shooting was not an accident, that Sanders acted intentionally in aiding and abetting the shooting and that the injuries inflicted on the Flores family were not covered by the instant policy. In its judgment, the trial court ruled that the Automobile Club is not obligated to indemnify Sanders for liability he may have to the Flores. This appeal ensued from the judgment.

DISCUSSION

Interpretation

Interpretation of the insurance policy presents a question of law for this court to decide. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18, 44 Cal.Rptr.2d 370, 900 P.2d 619; State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100, 109 Cal.Rptr. 811, 514 P.2d 123.) We consider the stipulated facts and the allegations of the Flores' complaint together with the language of the insurance policy. (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295, 300, 24 Cal.Rptr.2d 467, 861 P.2d 1153.)

The duty of an insurance company to defend a claim of coverage is broad. (Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at p. 295, 24 Cal.Rptr.2d 467, 861 P.2d 1153.) Courts first consider whether there may be a potential for coverage Because the Automobile Club reserved its rights, any allegations or judgment of negligence in the underlying civil suit would not preclude the insurance company from asserting there is no coverage here because Sanders expected or intended harm to occur. (See J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1017, 278 Cal.Rptr. 64, 804 P.2d 689.)

                under the policy.  (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 16., 44 Cal.Rptr.2d 370, 900 P.2d 619)  The insured has the burden to bring the claim within the basic scope of coverage;  the insurer must establish the absence of such coverage.  (Montrose, supra, at pp. 295, 300, 24 Cal.Rptr.2d 467, 861 P.2d 1153;  Waller, supra, at p. 16, 44 Cal.Rptr.2d 370, 900 P.2d 619.)   Courts will not indulge in a forced construction of the policy's insuring clauses to find coverage.  (Waller, supra, at p. 16, 44 Cal.Rptr.2d 370, 900 P.2d 619.)   And, courts construe policy terms in their " 'ordinary and popular sense.' "  (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265, 10 Cal.Rptr.2d 538, 833 P.2d 545;  Waller, supra, at p. 18, 44 Cal.Rptr.2d 370, 900 P.2d 619.)
                

COVERAGE

Use of the vehicle

In an insurance policy, the phrase "arising out of the use" has broad and comprehensive application. (State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d at p. 100, 109 Cal.Rptr. 811, 514 P.2d 123.) It affords coverage for injuries where the insured vehicle bears "almost any causal relation" to the accident at issue, however minimal. (Id. at p. 100, see also fn. 7, p. 101, fn. 8, 109 Cal.Rptr. 811, 514 P.2d 123.) Here, Sanders drove to the scene for the purpose of seeking retaliation and left the scene of the shooting by use of the van. The insurer admits that the van "was passing through the intersection" when Perez shot Flores. We agree with the trial court that the Sanders' van was being used at all pertinent times within the meaning of the instant policy language.

Occurrence

The instant policy promises to "pay damages for which any person insured is legally liable because of bodily injury ... caused by an occurrence arising out of the ownership, maintenance or use" of the insured vehicle. (Italics added.) "Occurrence" is defined to mean "an accident ..., including injurious exposure to conditions, which results in bodily injury...." (Italics added.) Therefore, the instant policy provides coverage to Sanders only if he accidentally caused the injury to Flores. "[T]he insured has the burden of showing that there has been an 'occurrence' within the terms of the policy." (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 16, 44 Cal.Rptr.2d 370, 900 P.2d 619.)

When an injury is an unexpected or unintended consequence of the insured's conduct, it may be characterized as an accident for which coverage exists. When the injury suffered is expected or intended, coverage is denied. When one expects or intends an injury to occur, there is no "accident." (Chu v. Canadian Indemnity Co. (1990) 224 Cal.App.3d 86, 96, 274 Cal.Rptr. 20.)

Flores argues that Sanders' acts were not intended or expected because he did not shoot Flores himself or direct that he be shot. Therefore, his conduct was, at most, reckless. (Peterson v. Superior Court (1982) 31 Cal.3d 147, 158-159, 181 Cal.Rptr. 784, 642 P.2d 1305; State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d at p. 101, 109 Cal.Rptr. 811, 514 P.2d 123; National American Ins. Co. v. Insurance Co. of North America (1977) 74 Cal.App.3d 565, 571, 140 Cal.Rptr. 828.) We disagree. The cases cited by appellant are distinguishable.

In Peterson, a driver drove with excessive speed after consuming alcohol. In deciding issues not relevant here, our Supreme Court explained that conduct amounting to a conscious disregard for the safety of others does not constitute willful, intentional conduct within the meaning of Insurance Code section 533. ¹ (Peterson v. Superior Court, supra, 31 Cal.3d at pp. 158-159, 181 Cal.Rptr.

784, 642 P.2d 1305.) Section 533 states an insurer is not liable for the willful acts of its insured.

In Partridge, the insured filed the trigger mechanism of his pistol at home so that the gun would have a "hair trigger action." The insured took the gun into his Bronco truck and placed it either on his lap or on top of the steering wheel. While the insured was driving, he saw a rabbit crossing the road. He drove off the road onto rough terrain to follow the rabbit. When the truck hit a bump, the gun discharged and caused injury to a passenger in the vehicle. (State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d at pp. 97-98, 109 Cal.Rptr. 811, 514 P.2d 123.)

The insurance company filed a declaratory relief action to determine whether its homeowners or its automobile policy provided coverage for the damages caused by the injuries incurred as a result of the accident. The trial court ruled that both policies afforded coverage and our Supreme Court affirmed. (State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d at pp. 97, 106-107, 109 Cal.Rptr. 811, 514 P.2d 123.)

Filing the trigger mechanism and transporting the gun independently concurred to proximately cause the accident. (State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d at p. 97, 109 Cal.Rptr. 811, 514 P.2d 123.) The insured's automobile policy provided coverage because the insured was using the truck at the time the gun accidentally discharged. (Id. at pp. 97, 100-101, 109 Cal.Rptr. 811, 514 P.2d 123.) The homeowner's policy also provided coverage,...