Allstate Insurance Company v Nelson, et al

Filing 34

ORDER: Granting Motion for Summary Judgment 25 . Signed on 1/14/2013 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
ALLSTATE INSURANCE CO.,
No. 1:12-cv-1384-PA
Plaintiff,
v.

RICKY NELSON, et al.,

ORDER

Defendants.

PANNER,,District Judge:

Plaintiff Allstate Insurance Co. seeks declaratory relief,
claiming it has no duty to defend or to indemnify in a personal
injury action pending in state court.

Allstate now moves for

summary judgment based on its policy's exclusion for "bodily
injury .

. caused intentionally by .

. an insured person."

grant the motion for summary judgment because the insured person
here pleaded guilty to assault by knowingly driving a car into a
pedestrian.

1

~

ORDER

I

BACKGROUND
The facts are not disputed.

Sharon and Ricky Nelson, who

were insured under the Allstate policy at issue, took their car to
Grants Pass Towing & Repair for repairs.

The Nelsons permitted

David Gray, an employee of the repair shop, to take their car on a
test drive.

As a permissive user of the Nelsons' car, Gray was an

insured person under Allstate's policy.
While driving the Nelsons' car, Gray saw Christopher
Addington walking on the sidewalk.

There was bad blood between

Gray and Addington, who was the ex-husband of Gray's girlfriend.
Gray yelled at Addington, who continued walking.
Gray drove a short distance and parked in a driveway to wait
for Addington to walk in front of the car.
by, Gray drove the car directly at him, but

When Addington walked
Addington managed to

jump on the hood of the car to avoid being run over.

Gray drove

away but was soon arrested.
Gray pleaded guilty to assault in the second degree.

At the

change of plea hearing, the judge explained to Gray that the
assault charge was for "unlawfully and knowingly causing physical
injury to Chris Addington by means of dangerous weapon, to wit, a
vehicle."
Addington filed the underlying state court action for
·personal injuries against Gray and Grants Pass Towing & Repair.
The complaint alleges Gray was negligent.
STANDARDS

The court must grant summary judgment if there are no genuine

2 - ORDER

issues of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

If the

moving party shows that there are no genuine issues of material
fact,

the nonmoving party must go beyond the pleadings and

designate facts showing an issue for trial.
Catrett, 4 77 U.S.

317, 322-23

Celotex Corp. v.

( 1986).

The interpretation of an insurance policy is a question of
law for the court.

St. Paul Fire & Marine Ins. Co. v. McCormick &

Baxter Creosoting Co., 324 Or. 184, 192,
(1996).

923 P.2d 1200, 1205

The insured has the initial burden of showing coverage

exists, and the insurer has the burden of showing the policy
excludes coverage.
211 Or. App.

485,

Employers Ins. of Wausau v. Tektronix,

Inc.,

509, 156 P.3d 105, 119 (2007).
DISCUSSION

The policy provides, "We will not pay for any damages, an
insured person is legally obligated to pay because of .

bodily

injury or property damage caused intentionally by or at the
direction of an insured person."

Addington contends there is a

genuine issue of material fact whether Gray "intended both the act
and the harm" to Addington.

I agree with Allstate, however, that

Gray's guilty plea establishes as a matter of law that he intended
to cause serious bodily injury to Addington.
I.

The Duty to Defend
An insurer has a duty to defend an action "if the complaint

filed against the insured 'could, without amendment,
liability for conduct covered by the policy.'"

3 - ORDER

impose

United States Fid.

& Guar. Co. v. Star Techs.,
1996)

Inc.,

935 F. Supp. 1110, 1113 (D. Or.

(quoting Ledford v. Gutoski,

80, 82

(1994)).

319 Or. 397, 399-400, 877 P.2d

The insurer is not, however,

"confined to the

complaint allegations in the underlying complaint if it has
evidence, such as a plea in a prior criminal proceeding, which
shows that there is no coverage under its policy and, thus, no
duty to defend."
*5

Allstate Ins. Co. v. Daniken, 2005 WL 327134, at

(D. Or. 2005).
Here, Gray's guilty plea is evidence that there is no

coverage under Allstate's policy.

The conviction for assault

shows as a matter of law that Gray acted with intent to injure
Addington.

See State Farm Fire and Cas. Co. v. Reuter, 299 Or.

155, 163-64, 700 P.2d 236, 241

(1985)

(intentional conduct

exclusion applied because assault conviction established insured's
intent to injure victim).

It makes no difference that Gray's

conviction was based on a guilty plea rather than a trial because
a "guilty plea is an admission of the ultimate facts that are the
material elements of the crime charged in the indictment."
Farm Fire and Cas. Co. v. Sallak, 140 Or. App. 89,
697, 700
II.

(1996).

93,

State

914 P.2d

Allstate has no duty to defend.

Duty to Indemnify
"[T]he duty to indemnify is established by proof of actual

facts demonstrating a right to coverage."
States Ins., 144 Or. App. 222, 227,
bane).

Northwest Pump v. Am.

925 P.2d 1241, 1243 (1996)

(en

There is no duty to indemnify here because the policy's

exclusion for intentional conduct applies as a matter of law.

4 - ORDER

See

Allstate Ins. Co. v. Deloretto, 2007 WL 3408135, at *3 (D. Or.
2007)

(no duty to indemnify because insured's conviction for sex

abuse established that exclusion applied) .
CONCLUSION

Plaintiff's motion for summary judgment (#25)

IT IS SO ORDERED.
DATED this ~ day of January, 2013.

OWEN M. PANNER
U.S. DISTRICT JUDGE

5 - ORDER

is granted.