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Vartivarian v. Fire Insurance Exchange5/2/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In a prior action, plaintiff, a physician, was sued for discrimination and harassment based on his alleged use of racial slurs in the workplace. He tendered the defense of the suit to his premises liability insurer and his homeowners insurer. The premises liability insurer declined to provide a defense.
The homeowners insurer defended plaintiff under a reservation of rights, but pointed out that the policy did not cover liability arising from plaintiff's business pursuits. Eventually, the homeowners insurer, after giving advance notice, withdrew its defense based on the business pursuits exclusion.
Plaintiff brought this bad faith action against both insurers. Each successfully moved for summary judgment on the ground that the allegations in the third party action did not fall within the scope of coverage.
We conclude that the premises liability insurance afforded no coverage because the alleged wrongdoing did not occur on plaintiff's premises, and, in addition, his alleged misconduct did not constitute an "accident" under the policy. We further conclude that the homeowners insurer did not owe plaintiff a defense or indemnity because his liability, if any, arose from his business pursuits, namely, the practice of medicine.
I. BACKGROUND
For purposes of our review of the insurers' summary judgments, we accept as true the following facts and reasonable inferences supported by plaintiff's evidence and defendants' undisputed evidence. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178-179.)
Zareh Vartivarian is a physician and surgeon. In May and June 2000, while performing surgeries at West Hills Hospital & Medical Center, Vartivarian allegedly made racist remarks about African-Americans. On those occasions, Yvonne Williams, an African-American, was in the operating room and heard the remarks. Williams, a clinical instructor at the Concorde Career Institute, specialized in surgical technology. Under a "Program Agreement," the institute assigned some of its students to the hospital, where they would obtain clinical experience. At the time of the alleged remarks, Williams was supervising a group of students.
In March 2001, Williams filed a complaint against Vartivarian and the hospital (Williams v. West Hills Hospital & Medical Center (Super. Ct. L.A. County, 2001, No. BC256430)), alleging causes of action against Vartivarian for racial discrimination and harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and the Unruh Civil Rights Act (Civ. Code, § 51). The complaint also included causes of action against Vartivarian for intentional infliction of emotional distress, assault, and battery.
More specifically, the complaint alleged as follows. When Williams was in the operating room with Vartivarian - once in May 2000 and once in June 2000 - he made racist remarks. He said, among other things, (1) his daughter would never marry an African-American because "she knows better" - " his race should be pure" - " pure white race, that's how it should be" - "not zebras"; (2) "Black doctors can't compete" - " hey're not as good as us, that's why you don't see them working at good hospitals"; (3) he liked " ure white music" - " ood country music" - " o Black people in it"; and (4) "I hate all th
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