LA Checker Cab Cooperative, Inc. v. FIRST SPECIALTY INS. CORP.

186 Cal.App.4th 767 (2010) L.A. CHECKER CAB COOPERATIVE, INC., Cross-complainant and Appellant,

v.

FIRST SPECIALTY INSURANCE CORPORATION, Cross-defendant and Respondent.

No. B213948. Court of Appeals of California, Second District, Division One.

June 14, 2010. [769] Law Offices of Neil C. Evans and Neil C. Evans for Cross-complainant and Appellant.

Cresswell, Echeguren, Rodgers & Noble, Ronald D. Echeguren, Elsa S. Baldwin and Matthew S. Harvey for Cross-defendant and Respondent.

OPINION

ROTHSCHILD, J.—

We hold that the employer in this case is not covered for an assault and battery by its employee under the "bodily injury" provision of its commercial general liability policy regardless of whether the employee acted in unreasonable self-defense or the employer was negligent in training or supervising the employee. Accordingly, we affirm the judgment for the insurer in the employer's action for breach of contract and declaratory relief.[1]

FACTS AND PROCEEDINGS BELOW

Alexander Terminassian, an employee of the L.A. Checker Cab Cooperative, Inc. (Checker), was operating his taxi one evening when he got into a dispute with a would-be passenger, Marco Cifuentes.

In his deposition, Cifuentes stated that Terminassian told him that he would not accept him as a passenger because he was drunk. Terminassian ordered Cifuentes out of the cab. Terminassian testified that when he told Cifuentes to get out of the cab, Cifuentes spat on his face, kicked him, struck him on the back of his head, and threatened to kill him. He described Cifuentes as "deranged" and "out of control." Terminassian warned Cifuentes that he was armed. When Cifuentes continued his aggression, Terminassian reached into his pocket for his gun and "racked the slide, chambering the round to make sure that [Cifuentes] understands it's not a toy gun." At that point, Cifuentes [770]