United States District Court, D. Arizona
M. BRNOVICH, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion for Summary
Judgment or, In The Alternative, Partial Summary Judgment.
(Doc. 24, “Mot.”). Defendant Rhonda Cerny filed a
Response, (Doc. 31, “Resp.”), and Plaintiff filed
a Reply, (Doc. 33, “Reply”). Oral argument was
heard on May 3, 2019.
Automobile Insurance Company (AAIC) issued Rhonda Cerny a
homeowners policy that was in effect from October 23, 2014
through October 23, 2015 (the “Policy”). (Doc.
1-2, Ex. C, “Policy”). The Policy incorporates a
5250 6-09 Prestige Home Premier Coverage form which affords
liability coverage as follows:
If a claim is made or a suit is brought against an
insured, anywhere in the world, for damages
because of bodily injury, personal
injury, or property damage caused
by an occurrence we will:
1. Pay on behalf of the insured up to the
limit of insurance shown on the Declarations for damages for
which the insured is legally liable . . .;
and, 2. We will settle or defend, as we consider appropriate,
any claim or suit asking for these damages . . . . We have no
duty to defend any suit or settle any claim for
bodily injury, personal
injury or property damage not
covered under this policy.
(Policy at 55) (emphasis in original). Under the Policy,
“occurrence” is defined as “[a]ccidental
loss or damage . . . which results, during the policy period,
in bodily injury or property
damage.” (Policy at 39) (emphasis in
original). The Policy separately includes the following
Personal Liability and Medical Payments to Others coverages
do not apply to damages resulting from bodily
injury, personal injury, or
property damage arising out of . . . any
criminal, willful, malicious or other act or omission that is
reasonably expected or intended by any
insured to cause damage. These acts are not
covered even if the damage is of a different kind or degree,
or is sustained by a different person, than expected or
intended. We do provide coverage if the act arose from the
use of reasonable force to protect people or property.
(Policy at 57) (the “Intentional/Criminal Acts
Exclusion”) (emphasis in original).
2015, Rhonda Cerny shot Craig Cerny. As a result of the
investigation, R. Cerny was charged with several criminal
offenses. Ultimately, R. Cerny plead guilty to Aggravated
Assault, a class 3 dangerous domestic violence felony. (Doc.
1-2, Ex. A). The factual basis for her plea was that she
recklessly caused serious physical injury to C. Cerny by use
of a deadly weapon, a gun. (Doc. 30, Ex. 2). C. Cerny filed a
civil suit against R. Cerny in Maricopa County Superior Court
in June 2017 (the “Civil Matter”). (Doc. 1-2, Ex.
B). In the complaint in the Civil Matter, C. Cerny alleges
15. . . . [R. Cerny] entered [C. Cerny's] Home alone,
through the garage door, without [C. Cerny's] knowledge
18. Within approximately 1-3 minutes of entering the Home,
[R. Cerny] shot [C. Cerny] in the chest with a .22 caliber
19. [C. Cerny] and [R. Cerny] were approximately five (5) -
ten (10) feet away from each other when [C. Cerny] was shot.
25. [R. Cerny] pleaded guilty to aggravated assault, a class
3 dangerous domestic violence felony per Plea Agreement ...