DAR Hits Hard for Another MSJ Win in Insurance Bad Faith Case

DAR Hits Hard for Another MSJ Win in Insurance Bad Faith Case

Randy Moss and Lisa Pan score another victory for DAR clients on dispositive motion, this time in an insurance bad-faith action alleging wrongful failure to defend and indemnify.

The insurer client’s insured was involved in a physical altercation when he found his estranged wife at a restaurant with another man (Plaintiff in the underlying action). During the fight, the Plaintiff sustained a broken jaw.

The DA investigated but declined to file criminal charges because it had insufficient evidence as to who started the fight.  The Plaintiff filed civil suit against the insured, who claimed he acted in self defense, and that Plaintiff broke his jaw, not when the insured intentionally punched him in the face (in self defense), but in the subsequent struggle in which both fell to the ground, striking the pavement hard.  The insured tendered his defense to the insurer who, after investigating (including taking the insured’s recorded statement), declined to defend.  In his statement the insured claimed he did not intend to injure the Plaintiff but admitted that he did intend to take Plaintiff down to the ground during their struggle.  The insured continued his defense through personally-retained counsel. Shortly before trial of the underlying civil suit, the parties stipulated to entry of Judgment against the insured in favor of Plaintiff for policy limits of $300,000 and an assignment of the insured’s rights against the insurer, in exchange for a covenant not to execute against the insured personally.  Thereafter, the Plaintiff filed suit against the carrier alleging assigned causes of action for breach of contract and the implied covenant of good faith and fair dealing, and a direct statutory cause of action against the insurer on the judgment.

Plaintiff assignee sought damages for defense costs, the $300,000 judgment and  other damages purportedly suffered by both him and the insured as a result of the carrier’s denial of defense. After persuading the Plaintiff to dismiss the bad-faith action, DAR filed summary judgment on the remaining claims, contending that there was no potential for coverage because the Plaintiff’s injuries did not arise out of an “occurrence” (i.e., accident). 

DAR argued that, even if the insured acted in self defense, and questions of fact existed as to whether plaintiff’s injuries were the result of being punched in the face or when the parties fell to the pavement, and even if the insured denied intending to cause injury, the insured’s act were intentional and therefore not accidental.  The Superior Court, County of Sonoma agreed, noting that there was no evidence that the Plaintiff was injured as a result of an involuntary reflexive act on the insured’s part.  Rather, Plaintiff’s injury was the result of intentional conduct (though the resulting injury was  not intended) and therefore not accidental.

The court granted the motion in its entirety.

Case: Dominic Capito v. Mid-Century Insurance Company (Sonoma County Superior Court)

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