Appeal from the United States District Court for the Northern District of California; William H. Orrick, District Judge, Presiding; DC No. CV-89-3771-WHO.
Hug, Poole, and Ferguson, Circuit Judges.
Plaintiff, Edward R. Del Carlo (Del Carlo), executor of the estate of Anthony E. Uzeta (Anthony)*fn1, appeals from the District Court's order granting summary judgment to defendant Allstate Insurance Company (Allstate), regarding Allstate's duty to defend and indemnify Anthony against a forcible detainer suit brought by his brother Raymond Uzeta (Raymond), the conservator of their mother's estate. We affirm.
In 1971, Anthony's mother Maria Cortez (Maria) wrote a will devising her property at 111-113 Coleridge (Coleridge property) to her son, Anthony. In March 1983, Maria decided to deed the Coleridge property to Anthony and his brother Peter Uzeta (Peter). However, the Probate Department of the Superior Court in San Francisco found Maria incompetent and appointed Raymond conservator in August, 1984. In 1986, Raymond, on behalf of Maria, filed suit in San Francisco Superior Court to set aside the 1983 deed from Maria to Anthony and Peter [and to recover the real property at Coleridge Street] on the ground that the deed was executed under undue influence.
On November 21, 1988, a jury found that Maria executed the deed as a result of undue influence by Anthony and Peter, and quieted title in Raymond as conservator of the estate. Anthony appealed from the judgment but neither Anthony nor Peter attempted to stay the enforcement. Anthony refused to leave the Coleridge property despite the service of several notices to vacate the premises.
In 1989, Raymond filed a first amended complaint for forcible detainer in the San Francisco Municipal Court, against Anthony and Peter, alleging that the "[d]efendants and each of them have unlawfully held the property by force, menacing conduct, and conduct tending to inspire a just apprehension of force or violence." Anthony tendered the defense of the forcible detainer action to Allstate, contending defense of the action fell under the terms of his homeowners policy covering the Coleridge property. However, Allstate promptly declined. Anthony sued Allstate for an alleged bad faith breach of its obligation to defend and indemnify him in the forcible detainer action.
Del Carlo contends that the District Court erred in granting Allstate's motion for summary judgment.
According to Federal Rule of Civil Procedure 56(c), summary judgment is proper when "[p]leadings, 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." A factual dispute is material with respect to a motion for summary judgment if it affects the outcome of the litigation, and is genuine if manifested by substantial evidence going beyond the allegations of the complaint. Holloway v. Pigman, 884 F.2d 365 (8th Cir. 1989), Allen v. A.H. Robins Co., Inc., 752 F.2d 1365 (9th Cir. 1985), Precision v. Polaroid Corp., 657 F.2d 482 (1st Cir. 1981).
Anthony's homeowner's policy states that, "subject to the terms, limitations and conditions 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 accident and covered by this part of the policy." (ER 146; CR 21, Ex. A at 23). Del Carlo argues that the question whether his holdover in the Coleridge property was an "accident" within the policy constitutes a material issue of fact.
In Merced Mutual Insurance Company v. Mendez, 213 Cal. App.3d 41, (1989), the court held that deliberate and purported conduct on the part of the insured does not give rise to an accident within the meaning of the liability policy. (Merced Mutual Ins. Co. v. Mendez, 213 Cal. App. 3d at 50-53). The Mendez Court stated:
An accident, however, is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.
In the present case, Anthony intentionally and deliberately refused to surrender possession of the Coleridge property despite requests to do so. Thus, Anthony's deliberate acts resulted in the forcible detainer action brought by his mother. Because Anthony deliberately and purposefully occupied the property and denied his mother possession, Anthony's conduct does not constitute an accident within the meaning of his insurance policy as a matter of California law. see Merced Mutual Insurance Company v. Mendez, 213 Cal. App. 3d at 50-53; Insurance Co. of the West v. Haralambos Beverage Co., 195 Cal. App. 3d 1308, 1318 (1987). See also Hartford Fire Ins. Co. v. ...