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Safeco Insurance Co. v. Robert S.3/9/1999
CERTIFIED FOR PUBLICATION
(Super. Ct. No. BC139030)
APPEAL from a judgment of the Superior Court of Los Angeles County, Lawrence W. Crispo, Judge. Reversed and remanded with directions.
INTRODUCTION
In this declaratory relief action, plaintiff and appellant Safeco Insurance Company of America ("Safeco") appeals from the summary judgment granted in favor of defendants and respondents, Robert S., Velvet S., Kelly S., and Christy Mitchell, as well as from the order denying Safeco's motion for summary judgment. Safeco argues that, as a matter of law, it has no duty to defend or indemnify Robert, Velvet, and Kelly in a wrongful death action brought by Christy and Timothy Mitchell arising out of an incident in which Kelly accidentally shot and killed their son, Christopher. Safeco asserts that the trial court erred in finding as a matter of law that the "illegal acts" exclusion in its homeowners policy was ambiguous, and should therefore be construed to provide coverage to Safeco's insureds, Robert, Velvet, and Kelly. We agree. We therefore reverse the summary judgment in favor of respondents and direct the trial court to enter judgment in favor of Safeco.
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 1995, 16-year-old Kelly and several of his friends went to Kelly's home. Kelly found his mother Velvet's .22 caliber Beretta handgun in the pocket of a coat in her closet. Kelly removed the clip from the handle of the gun and pulled the slide back, which caused the hammer to be cocked, believing that the gun would then be unloaded. Kelly held the gun straight out, pointing the gun over his friends' heads, and pulled the trigger. Christopher was struck by a bullet and killed.
A petition was filed in the juvenile court pursuant to Welfare and Institutions Code section 602. The petition alleged that in shooting and killing Christopher, Kelly had committed involuntary manslaughter. (Pen. Code, ยง 192, subd. (b).) In September 1995, the juvenile court found Kelly to be a person described by Welfare and Institutions Code section 602, and sustained the petition as to the count for involuntary manslaughter, finding the offense to be a felony. Kelly was placed in the custody of the probation officer, and placed in his parents' home.
In July 1995, Christopher's parents, Timothy and Christy, filed a wrongful death lawsuit against Kelly and his parents, Robert and Velvet.
Safeco insured Robert under a homeowners insurance policy, under which Velvet and Kelly were also insured. Robert, Velvet, and Kelly ("the insureds") tendered defense of the action to Safeco, which accepted defense of the action pursuant to a reservation of rights.
In November 1995, Safeco filed the declaratory relief action now before us, naming as defendants the insureds and Christopher's parents, and seeking a declaration that it had no duty to defend or indemnify the insureds in the wrongful death action.
Safeco filed a motion for summary judgment in July 1996, contending that it had no duty to defend or indemnify the insureds because coverage is precluded by Civil Code section 1668 and the "illegal act" exclusion in the policy, the language of which is set forth below in the Discussion section. After hearing, the trial court denied Safeco's motion for summary judgment. Safeco filed a petition for writ of mandate in this court, which was denied. Its petition for review to the Supreme Court was also denied.
In April 1997, Christy Mitchell filed a motion for summary judgment contending, as a matter of law, that Safeco had a duty to defend and indemnify the insureds in the underlying wrongful dea
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