In Galvani v. Tokio Marine and Nichido Fire Ins. Co., Ltd., 2012 WL 2568220 (N.D. Cal. July 2, 2012), the district court entered summary judgment for a homeowner’s insurer on the grounds that it had no duty to defend an underlying wrongful death action arising from a homicide.    

In 1982, plaintiff’s wife was found floating in the San Francisco Bay.  Her body was in a sleeping bag, which had been tied with a rope to a cinder block.  The wife had suffered a broken vertebra and skull fracture.  The coroner concluded the cause of death was asphyxiation and the police classified the death as homicide.  Criminal charges against the plaintiff were dropped and the case remains unresolved.  Plaintiff’s daughter was five years old at the time of her mother’s death, and in 2010, she sued her father for wrongful death.

At the time of the wife’s death, plaintiff was the named beneficiary on a homeowner’s policy issued by Tokio Marine.  Plaintiff tendered the defense of the lawsuit to Tokio Marine, but Tokio Marine denied coverage, claiming that the policy did not provide coverage for the defense of lawsuits where the alleged bodily injury or damages stemmed from intentional acts.  Specifically, Tokio Marine concluded that its duty to defend only extended to suits seeking damages for damage or bodily injury “caused by an occurrence,” and because “occurrence” was defined in the policy as “an accident”, “occurrence” did not include intentional acts.  Plaintiff filed an action against Tokio Marine seeking declaratory judgment as to the scope of the duty to defend.  Both parties filed motions for summary judgment on this issue. 

The main dispute was whether the “caused by an occurrence” policy language applied only to Tokio Marine’s duty to indemnify, or to both its duty to indemnify and duty to defend.  In arguing that it should only apply to Tokio Marine’s duty to indemnify, plaintiff pointed to the policy language, which required indemnification of “all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damages, to which this Insurance applies, caused by an occurrence.”  The duty to defend provision, on the other hand, did not include the “caused by an occurrence” language.  Instead, Tokio Marine’s duty to defend extended to “any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent.”  Plaintiff argued that the omission of “occurrence” showed an intent to broaden Tokio Marine’s duty to defend.  Tokio Marine argued the placement of the word “such” before “bodily injury or property damage” served to reference back to the “bodily injury or property damages” mentioned in the first sentence (the duty to indemnify), which are limited to those “caused by an occurrence”. 

The court agreed with Tokio Marine’s analysis and found that the word “such” served to reference the “caused by an occurrence” requirement into the duty to defend.  The court stated that to hold otherwise would be to read the word “such” out of the policy.