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American Automobile Insurance Co. v. Cerny

United States District Court, D. Arizona

July 12, 2019

American Automobile Insurance Company, Plaintiff,
v.
Rhonda Cerny, et al., Defendants.

          ORDER

          SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE

         Pending 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.

         BACKGROUND

         American 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 exclusion:

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).

         In July 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 the following:

15. . . . [R. Cerny] entered [C. Cerny's] Home alone, through the garage door, without [C. Cerny's] knowledge or permission.
18. Within approximately 1-3 minutes of entering the Home, [R. Cerny] shot [C. Cerny] in the chest with a .22 caliber revolver.
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 ...

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