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No Duty to Defend in Wrongful Death Suit when Death was Classified as a Homicide

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In Galvani v. Tokio Marine and Nichido Fire Insurance Co., No C 11-3848 (July 2, 2012), the United States District Court for the Northern District of California held an insurer has no duty to defend in a wrongful death suit where the death was classified as a homicide.

In 2010, Patrick Galvani’s (“Galvani”) daughter sued him for the wrongful death of her mother, who was found floating in a sleeping bag in the San Francisco Bay in 1982.  The police department classified the death as a homicide and filed criminal charges against Galvani.  The charges were subsequently dropped and the case remains unsolved. Following the filing of the wrongful death suit by his daughter, Galvani tendered his defense under a homeowner’s policy issued by Tokio Marine and Nichido Fire Insurance Company (“Tokio”).  Tokio denied coverage claiming that its duty to defend only extended to suits seeking damages for damage or bodily injury “caused by an occurrence,” and because “occurrence” was defined in the policy as “an accident”, “occurrence” did not include intentional acts.  Galvani filed suit against Tokio seeking a declaratory judgment as to the scope of the insurer’s duty to defend.  Both parties filed for summary judgment on this issue.

The initial issue in the duty to defend suit was whether the “caused by an occurrence” language applied only to Tokio’s duty to indemnify, or to both its duty to indemnify and its duty to defend.  The District Court found the language of the policy created a duty to defend suits seeking damages for bodily injuries or property damages caused by an occurrence.  The court subsequently found no evidence suggesting the death was an occurrence as defined in the policy, noting the complaint in the wrongful death suit did not allege any facts regarding a negligent killing.  Thus, the court granted summary judgment in favor of Tokio.