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In re Estate of Franz9/12/2005
Alex Bremmeyer deliberately shot and killed Patrick Franz and injured Mikeal Hendrix. Patrick's estate, his parents, and Hendrix (collectively, Franz) filed a civil lawsuit against Alex, his brother Andrew Bremmeyer, and five other defendants for damages arising out of this event. Allstate insured the Bremmeyers' parents under a homeowner's policy and an umbrella policy. The trial court granted summary judgment to Allstate, finding no coverage under either policy for Alex or Andrew. Finding no error, we affirm.
FACTS
Alex and Andrew Bremmeyer are brothers. On New Year's Eve of 2000, Alex and Andrew partied together with some friends, allegedly drinking, smoking marijuana, and taking ecstasy. Earlier, Andrew asked his friend Miles Skagen to bring his gun so that it could be fired into the air to welcome the new year. Skagen retrieved the loaded gun and gave it to Andrew. Andrew allegedly tossed the gun in the trunk of the car. Andrew, Alex, Skagen, Gabriel Acena, and two other friends drove from Maple Valley to the New Year's Celebration at the Space Needle in Seattle.
Patrick Franz, another person celebrating at the Space Needle, happened upon the Bremmeyers and their friends and wished them a 'happy new year.' For unclear reasons, an altercation broke out and the group assaulted Patrick. After the assault, the group tried to leave in their car, but Patrick caught up to them and banged on the car. The group jumped out of the car again, and there was a verbal confrontation. Acena picked up the gun and then put it back in the trunk. He kept Patrick away from the trunk as Skagen loaded the gun. Then Alex picked up or was given the gun. Acena told Alex to shoot Patrick, and Alex fired multiple shots and killed Patrick. A stray bullet injured Mikeal Hendrix. Both victims were strangers to the group.
Alex pleaded guilty to second degree murder for Patrick's death and second degree assault for Hendrix's injuries. In pleading guilty, Alex admitted: On January 1, 2001 in Seattle, WA (King County), I intentionally fired a handgun at Patrick Franz. The bullets struck Mr. Franz and Mikeal Hendrix. Mr. Franz died as a result.
Franz filed a civil suit against Alex and Andrew, as well as five other involved parties, arising out of the murder and assault. Alex and Andrew's mother and stepfather, Annie and Gary Grina, were insured under an Allstate Deluxe Plus Homeowner's Policy and an Allstate Umbrella policy. Alex and Andrew tendered defense of the Franz lawsuit to Allstate. Allstate, while providing them with a defense, made a full reservation of all rights and defenses, including the right to file a declaratory judgment action. Allstate moved for summary judgment, arguing among other grounds that there was no coverage under the Allstate policies because the losses were not caused by an accident or occurrence. The trial court granted summary judgment to Allstate, finding that there was no coverage under either policy for any claims against Alex or Andrew arising out of the incident. Franz appeals.
ANALYSIS
Summary judgment is appropriate if the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). A material fact is one upon which the outcome of the litigation depends, in whole or in part. Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974). The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (19
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