State Farm Fire & Casualty Co. v. Dominguez

Opinion

KINGSLEY, J.

Defendants appeal from an adverse judgment in an action to determine insurance coverage. We affirm.

On February 23, 1977, defendant Mcllvain shot and killed David Dominguez. Mcllvain was prosecuted and convicted of first degree murder and his conviction was sustained on appeal to this court.

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(2 Crim. No. 32913.) Thereafter the other defendants filed a wrongful death action against Mcllvain and other persons for that killing. Plaintiff insurance company was the insurer of Mcllvain under a policy which, unless coverage was excluded under the provisions hereinafter discussed, required it to undertake the defense of the wrongful death action and pay any judgment thereon rendered against Mcllvain. Plaintiff, contending that its policy did not cover the killing of Dominguez, has undertaken defense of the wrongful death action under a reservation of rights.

1

Plaintiff then brought the present declaratory relief action to determine its obligations under the policy. The trial court decided in favor of plaintiff and this appeal followed.

The policy herein involved provides, under the heading of “Exclusions,” as follows: “This policy does not apply ... to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” Section 533 of the Insurance Code provides: “An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” It is the contention of plaintiff that, since the killing was intentional, the statute and the exclusion clause relieve it of liability. It is the contention of defendants that, since their complaint in the wrongful death action is based on allegations of negligence, the statute imposes liability on the plaintiff.

I

Defendants’ contention here is that, since even an intentional tort may, in a civil action, be treated as negligent, it was the duty of plaintiff to support its declaratory relief action by a showing that the conduct of the insured was nonnegligent. We reject that theory. It is true that an intentional