Western National Assurance Company v. Wipf et al, No. 3:2013cv05373 - Document 35 (W.D. Wash. 2014)
Court Description: ORDER granting 19 Plaintiff's Motion for Summary Judgment re exclusion of criminal act, signed by Judge Ronald B. Leighton.(DN)
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Western National Assurance Company v. Wipf et al 1 Doc. 35 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 WESTERN NATIONAL ASSURANCE COMPANY, 11 Plaintiff, 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. 13 14 CASE NO. #:13-cv-05373-RBL [DKT. #19] ROBERT WARGACKI, 15 Defendant. 16 17 18 THIS MATTER is before the Court on Plaintiff Western National Assurance Company’s 19 Motion for Summary Judgment (Dkt. #19). Western National insured Michael Erb1 under a 20 homeowner’s insurance policy. The policy expressly and indisputably excludes coverage for 21 damages resulting from criminal acts: 22 23 24 25 1 Western National mistakenly refers to“Robert Erb, apparently mixing up Robert ” Wargacki and Michael Erb’s names. Dkt. #19 at 1. To clarify, Michael Erb is the decedent 27 insured. Robert Wargacki is Anne-Marie Wargacki’s personal representative substitute administrator of Michael Erb’s estate. 26 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 3 Coverage L – Personal Liability – “ ” pay, up to “our “limit , all sums We ” ” for which an “insured is liable by law because of “bodily injury or ” ” “ property damage caused by an“occurrence to which this coverage ” ” applies. . . . 4 [Dkt. #1 at 3] 5 12.“Occurrence means an accident, including repeated exposures to ” similar conditions, that results in “bodily injury or“ ” property damage during the policy period. ” 2 6 7 [Id.] (emphasis ours) 8 Exclusions That Apply to Coverages L and M–This policy does not apply to: i.“bodily injury or“property damage ” ”: 1) which is expected by, directed by, or intended by an“insured ”; 2) that is the result of a criminal act of an “insured or ”; 3) that is the result of an intentional and malicious act by or at the direction of an “ insured ”. 9 10 11 12 [Id.] 13 14 Erb shot and killed his girlfriend, Anne-Marie Wargacki, and took his own life moments 15 later. Wargacki’s estate2 sued Erb’s estate for wrongful death. Erb’s estate tendered the defense of 16 that claim to Western National, which denied coverage and refused to defend. Wargacki obtained 17 a $7 million judgment and submitted a policy limits demand3 to Western National for partial 18 satisfaction of the judgment. 19 Western National initiated this Declaratory Judgment action, seeking a determination that 20 21 its policy does not cover the damages Erb’s estate is obligated to pay for Anne-Marie’s death. It 22 now seeks summary judgment on that issue. It claims that Anne-Marie’s shooting was a criminal 23 act and its policy excludes “criminal acts. Wargacki counters that the shooting may have been ” 24 25 2 26 27 For clarity this Order will refer to the estate as“ Wargacki and to the victim as “Anne” Marie. ” 3 It is not clear whether Erb’s estate had assigned its rights under the policy to Wargacki at the time this demand was made. In any event, the demand was denied. 28 [DKT. #19] - 2 1 accidental, and that the “criminal act exclusion does not apply to mere negligence. Therefore, it ” 2 claims, Western National is not entitled to a determination as a matter of law that its policy does 3 not cover the shooting and the judgment. Because there is no genuine dispute that Ann-Marie’s 4 death was an excluded “criminal act, Western National’s Motion for Summary Judgment4 is ” 5 6 GRANTED. I. 7 BACKGROUND 8 The circumstances of this lawsuit are tragic. Michael Erb was apparently distressed about 9 the direction his life was going; he had lost his job and was worried about his financial situation. 10 Compounding Erb’s financial woes, his girlfriend, Anne-Marie Wargacki, was several months 11 pregnant. In June 2010, Erb shot Ann-Marie in the back of the head at close range with a .45 12 caliber pistol. She died instantly. Erb then turned the gun on himself, taking his own life. There 13 14 were no witnesses. The Tacoma Police Department investigated the deaths and determined that 15 Ann-Marie’s death was a homicide. 16 17 18 Wargacki subsequently obtained a $7 million judgment against Erb’s estate in Pierce County Superior Court. Western National did not defend the lawsuit or indemnify Erb’s estate. Wargacki made a policy limits demand to Western National for partial satisfaction of the 19 judgment, claiming that Erb’s homeowner’s policy covered Anne-Marie’s death. Western National 20 21 filed this declaratory action, asking the Court whether its policy covered Anne-Marie’s death. The 22 parties agree that Erb’s insurance coverage does not apply to damages that result from a “criminal 23 act by the insured. See Dkt. #19 at 3. The parties’ disagreement boils down to whether the ” 24 criminal acts exclusion applies in this case. 25 26 4 Wargacki has moved to amend its Answer to include counterclaims of bad faith and coverage by estoppel (Dkt. #29). This Order does not purport to address the Motion to Amend or 27 the merits of the proposed bad faith counterclaim. 28 [DKT. #19] - 3 1 2 II. DISCUSSION Western National asks for Summary Judgment because, it argues, the undisputed facts 3 show that Anne-Marie’s shooting was an excluded criminal act, whether it was murder or 4 manslaughter. Thus, it claims, its policy does not cover Anne-Marie’s death. Wargacki argues 5 6 7 that the shooting might have been accidental, and that coverage for a merely negligent killing is not excluded under the policy. See Dkt. #21.5 8 A. 9 Summary judgment is appropriate when, viewing the facts in the light most favorable to 10 11 Summary Judgment Standard. the nonmoving party, there is no genuine issue of material fact that would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 12 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to 13 14 interrogatories, or admissions on file,“specific facts showing that there is a genuine issue for trial. ” 15 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of evidence 16 in support of the non-moving party’s position is not sufficient. Triton Energy Corp. v. Square D ” 17 Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the 18 outcome of the suit are irrelevant to the consideration of a motion for summary judgment. 19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, “summary judgment 20 should be granted where the nonmoving party fails to offer evidence from which a reasonable 21 22 [fact finder] could return a [decision] in its favor. Triton Energy, 68 F.3d at 1220. ” 23 24 25 26 5 Wargacki also objects to the Motion on other evidentiary and equitable grounds, but the Court does not address them because the undisputed facts and evidence alone are sufficient for 27 the purpose of this ruling. 28 [DKT. #19] - 4 1 B. 2 The Motion turns on whether the policy’s“criminal act exclusion applies: if it does, there is ” 3 The “Criminal Acts” Exclusion. no coverage and the dispute ends. Western National argues that the“criminal acts exclusion ” 4 applies even if the shooting was an accident because, at a minimum, Erb’s conduct was criminally 5 6 7 negligent as a matter of law. Wargacki argues that criminal negligence is not a “serious enough ” offense to trigger the exclusion, and claims that the shooting may have been an accident. Under Washington law, if a person acting with criminal negligence shoots and kills 8 9 10 11 another, that person is guilty of felony manslaughter. See RCW 9A.32.070. A person is criminally negligent if he“fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the 12 standard of care that a reasonable person would exercise in the same situation. RCW ” 13 14 9A.08.010(d). Accordingly, despite Wargacki’s argument to the contrary, negligently shooting 15 someone is a sufficiently serious criminal act for triggering a“criminal acts clause. See, e.g., ” 16 Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 423, 932 P.2d 1244 (1997) (holding that a“criminal 17 acts exclusion applied to a shooting even though the victim of the shooting agreed that it was ” 18 accidental). The intent of the shooter is irrelevant as long as his conduct was objectively 19 blameworthy. Id. at 429. And unprosecuted criminal conduct is nonetheless covered by “criminal 20 acts clauses. Allstate Ins. Co. v. Raynor, 143 Wn.2d 469, 476, 21 P.3d 707 (2001) ( ” “No 21 22 reasonable insurance purchaser would consider a criminal act somehow less criminal simply 23 because a suicide or some other circumstance prevented its prosecution in a court of law. ). In ” 24 contrast to negligent or reckless shootings,“[f]or purposes of insurance coverage, an accident is 25 ‘an unusual, unexpected, and unforeseen happening.’ Allstate Ins. Co. v. Bauer, 96 Wn. App. 11, ” 26 15, 977 P.2d 617 (1999) (quoting Grange Ins. Co. v. Brosseau, 113 Wn.2d 91, 95, 776 P.2d 123 27 (1989). 28 [DKT. #19] - 5 1 2 Here, the undisputed facts show that r gardless of his subjective intent Erb took a loaded — e — gun, pointed it at Anne-Marie’s head at close range, and pulled the trigger. This conduct can only 3 be described as“a gross deviation from the standard of care that a reasonable person would 4 exercise in the same situation. See RCW 9A.08.010(d). A reasonable person does not point a ” 5 6 loaded gun at someone’s head and pull the trigger. And no reasonable person could conclude that 7 Erb’s act was“an unusual, unexpected, and unforeseen happening such that it was an “accident in ” ” 8 the insurance context. See Brosseau, 113 Wn.2d at 95. Even ignoring all the disputed evidence,6 9 a reasonable trier of fact could only conclude that Erb’s act was criminal criminally negligent at — 10 least, murderous at most. No evidence, whether existing or discoverable, can change this fact. 11 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Wargacki’s suggestion that the 12 shooting was an accident is pure speculation Wargacki admits there is no way to determine — 13 14 exactly what happened, or why. The “criminal acts exclusion in Erb’s policy clearly applies to ” 15 Anne-Marie’s death. Western National’s Motion for Summary Judgment is GRANTED. 16 17 18 Wargacki has moved to amend its Answer to include counterclaims of bad faith and coverage by estoppel (Dkt. #29). Wargacki claims that Western National acted in bad faith by refusing to defend the Superior Court lawsuit even though the pleading alleged negligence, 19 which it claims is a covered occurrence. Western National has not yet responded to the Motion, 20 21 but should. 22 23 24 25 6 This includes documents showing that the Tacoma Police ruled the death a homicide; the common sense fact that the circumstances overwhelmingly suggest a murder-suicide; and 27 that Wargacki itself suggested in the Superior Court trial that Erb murdered Anne-Marie because she was pregnant. 26 28 [DKT. #19] - 6 1 2 III. CONCLUSION Because the shooting was an excluded “criminal act, Western National’s homeowner’s ” 3 policy did not cover it. Western National’s Motion for Summary Judgment on this point is 4 GRANTED. 5 6 7 8 9 10 Dated this 31st day of March, 2014. A RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [DKT. #19] - 7
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