No Benefits for Deliberate Acts Resulting in Injury
The USCA for the Ninth Circuit – contrary to its often stated court of reversal – wrote a clear, unambiguous, appropriate and proper decision that was even more brief than decisions from the New York appellate courts.
In Metropolitan Property & Casualty Insurance Company v. Kenneth Victor Nieto and Josh Pemberton, United States Court of Appeals, Ninth Circuit, No. 14-35565, 2017 WL 946754 (3/9/17) Josh Pemberton appealed from the entry of summary judgment in favor of Metropolitan Property and Casualty in this insurance coverage dispute.
The Ninth Circuit concluded that the district court correctly determined that Metropolitan had no duty to defend or indemnify Karen and Kenneth Nieto because their liability did not arise from an “occurrence” as defined in the policy.
Pemberton’s injuries did not result from an “accident” because Karen and Kenneth Nieto each engaged in deliberate acts and the injuries were a reasonably foreseeable result of those acts.
Because his injuries did not result from an “accident,” Pemberton cannot establish that the loss falls within the scope of the policy’s insured losses.
Summary judgment was therefore proper.
Liability insurance is designed to protect the person insured against claims that he or she negligently, accidentally, injured a third person. The insureds deliberately acted in a way to injure Pemberton. No accident, no occurrence, no coverage.
This article and all of the blog posts on this site summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Look to National Underwriter Company for the new Zalma Insurance Claims Library, at www.nationalunderwriter.com/ZalmaLibrary The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide
The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214624, or 800-285-2221 which is presently available and “Diminution of Value Damages” available at http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=203226972
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