Armed Forces Ins. Exchange v. Marshall
Appellant Larry Marshall challenges the trial courts grant of summary judgment in favor of Armed Forces Insurance Exchange in this declaratory relief action. The judgment determined the absence of coverage under a homeowners insurance policy for bodily injury Marshall had suffered as a result of being shot multiple times by his former wife, Ellen Barrett, at her parents home in Saratoga where she was then residing. After shooting Marshall and then being criminally prosecuted, Barrett entered a no contest plea to a charge of assault with a firearm and she admitted great bodily injury enhancement allegations. She was sentenced to five years in prison.
Marshall sued Barrett in tort for his injuries. Barrett sought a defense of the action and indemnity from Armed Forces, which had issued a homeowners insurance policy to Barretts parents relating to their property where Barrett resided and where the shooting had taken place.[1] Armed Forces responded with this declaratory relief action, which it filed against Barrett as an insured under the policy and Marshall as Barretts potential judgment creditor under Insurance Code section 11580, subdivision (b)(2).[2][3] Armed Forces sought a judicial determination that it owed no defense under the policy to Barrett for the Marshall claim and that there was no coverage for it, eliminating any policy benefits that Marshall might derive from a judgment against Barrett as an insured. The basis of Armed Forces position was that Barretts shooting of Marshall had been an intentional act expressly excluded from coverage under the policy and as a matter of law under section 533.[4]
Armed Forces ultimately moved for summary judgment. In support of its motion, it urged that Barretts no contest plea to assault with a firearm, the elements of which include the intent to willfully commit an act the direct, natural, and probable consequences of which will be injury to another (People v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono)), coupled with Marshalls deposition testimony as to the events of the shooting, established the absence of a triable issue of material fact as to the intentionality of Barretts actions, thus precluding coverage or any other benefit owing under the policy for Marshalls claim. Over Marshalls opposition, the trial court concluded that Armed Forces was entitled to summary judgment. Marshall now appeals, contending that the court below improperly weighed evidence in granting the motion. Like the trial court, on this record that includes inadmissible evidence offered by Marshall that the trial court properly refused to consider, Court conclude that Armed Forces was entitled to summary judgment and Court accordingly affirm.
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