Mercury Casualty v. Noll CA6

Filed 9/26/13 Mercury Casualty v. Noll CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MERCURY CASUALTY COMPANY, H036307 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CV145525)

v.

ANDREW THOMAS NOLL,

Defendant and Appellant.

Andrew Thomas Noll appeals a judgment of the trial court wherein it found Respondent Mercury Casualty Company’s (Mercury’s) insurance policy did not cover personal injuries that occurred during a bar fight between Mr. Noll and Kyle Cancimilla. On appeal, Mr. Noll asserts the trial court erred in limiting coverage under Mercury’s insurance policy, and that damages caused by Mr. Cancimilla during the fight with Mr. Noll should be covered. STATEMENT OF THE FACTS AND CASE On December 7, 2006, Mr. Cancimilla was involved in a physical altercation with Mr. Noll at a bar called “The Hut” in Santa Clara, California. Mr. Noll was at the bar with a group of friends to celebrate his upcoming graduation from San Jose State University. At the same time, Mr. Cancimilla was also at the bar with another group of San Jose State football players who were several inches taller and 30 to 40 pounds

heavier than Mr. Noll. Mr. Cancimilla and the other football players were at the bar to celebrate the end of the football season. By 12:45 a.m., Mr. Noll had consumed about 10 drinks, and was very intoxicated. Mr. Cancimilla had consumed three 24-ounce beers, which was enough to cause his judgment to be impaired. At the time, Mr. Noll and Mr. Cancimilla were waiting to use the men’s room, and disagreed about whose turn it was to enter. The disagreement involved foul language but no threats of physical violence. Mr. Cancimilla testified that Mr. Noll pushed him in the elbow and shoulder on the way into the men’s room. Mr. Noll testified that he put his hand out to signal that he was going into the men’s room. In the process of doing so, Mr. Noll may have touched Mr. Cancimilla, but testified that it was not done in a threatening manner. Mr. Noll went into the men’s room, and began using the urinal. Mr. Cancimilla followed him, and stood near Mr. Noll demanding an apology because he thought Mr. Noll cut in line. Mr. Noll did not apologize. According to Mr. Noll, after he refused to apologize, Mr. Cancimilla began hitting him. Mr. Cancimilla testified that he struck Mr. Noll in self-defense, because he feared Mr. Noll would strike him first. Mr. Cancimilla thought Mr. Noll had taken an aggressive stance, shoved him in the shoulder and balled his fists. Mr. Cancimilla hit Mr. Noll several times before a friend pulled him away. Mr. Noll was seriously injured from the altercation with Mr. Cancimilla. He suffered fractures to his nose and his left orbital bone, which needed plastic surgery including titanium plates and mesh to repair. Mr. Noll also sustained damage to his infraorbital nerve, leaving his facial muscles weak and his face and parts of his mouth numb. Mr. Noll sued Mr. Cancimilla alleging two counts of negligence, one count of false imprisonment, and two counts of assault and battery in Noll v. Cancimilla. One of