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Wargacki v. Western National Assurance Co.

United States District Court, W.D. Washington, Tacoma

January 6, 2015

ROBERT WARGACKI, Substitute Administrator of the Estate of Michael A. Erb and Personal Representative/Administrator of the Estate of Anne-Marie Wargacki, Plaintiff,
v.
WESTERN NATIONAL ASSURANCE COMPANY, a Minnesota corporation, Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DKT. #S 50 AND 88]

RONALD B. LEIGHTON, District Judge.

THIS MATTER is before the Court on the parties' competing motions for Summary Judgment [Dkt. #s 50 and 88]. The Court must decide whether the victim's estate's underlying complaint plausibly, factually alleged that her murder was common "negligence, " thereby triggering the shooter's insurer's duty to defend. The Court has already determined that the shooting was squarely within the policy's criminal acts exclusion-that the shooting was not "actually covered"-and that the insurer did not have a duty to indemnify the shooter as a matter of law.

Because no reading of the complaint's factual allegations could conceivably lead to the conclusion the shooting was an "accident, " or anything other than an intentional, criminal act, the insurer similarly had no duty to defend the underlying claim under its policy. Its failure to do so was not bad faith, as a matter of law.

I. FACTS

A. Erb's Homeowner's Policy

Michael Erb purchased a Western homeowner's insurance policy in June 2009. The policy (like all such policies) reflects the insurer's agreement to defend and indemnify Erb from liability for bodily injury caused by accidental occurrences. The policy is subject to various exclusions, including criminal and intentional acts. It does not cover "bodily injury" which is "expected by, directed by, or intended by an insured or that is the result of a criminal act of an insured." [Policy, Dkt. #89-1 at 24] In short, the policy covers accidents, but it does not cover intentional or criminal acts.

B. The Shootings.

On June 27, 2010 Michael Erb shot his pregnant girlfriend in the back of the head with a.45 caliber hand gun. Anne-Marie Wargacki and her unborn child died immediately. Moments later, Erb shot himself in the head. He died before he reached the hospital. There were no eye witnesses. A roommate heard talking or arguing before the shots, and neighbors heard only two shots in rapid succession.

Police interviewed the roommate and the neighbors, and observed the relative positions of the bodies, the gun, the blood, and the entry and exit wounds. The medical examiner confirmed that Wargacki and her baby died from the bullet. The police concluded that Erb murdered Wargacki and then killed himself, intentionally. They informed the public of these findings the next day.

C. The Lawsuit.

Three months later, Wargacki's Estate sued Erb's Estate for wrongful death. The complaint's factual allegations were intentionally sparse:

II. FACTS

2.1 On a about June 27, 2010, Decedent Michael A. Erb, either negligently, intentionally or recklessly discharged a fireman striking Anne-Marie Wargacki, and thereby causing grievous bodily injuries that ultimately proved to be fatal;

2.2 As a result of Decedent/Defendant Michael A. Erb's having discharged a firearm and causing the death of Anne-Marie Wargacki, Decedent/Defendant Michael A> Erb also caused the death of ...


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