The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF, DENYING DEFENDANTS' REQUEST FOR A STAY, AND DISMISSING DEFENDANTS' COUNTERCLAIM AS MOOT
n January 19, 2011, Plaintiff Allstate Insurance Company ("Plaintiff" or "Allstate") filed a declaratory judgment action against Jefferson J. Scott and Kevin A. Scott ("Defendants" or the "Scotts"). Doc. No. 1. Allstate seeks a declaration that Jefferson Scott's homeowner policy does not require Allstate to defend the Scotts in a state civil action. Compl. ¶ 19. On February 2, 2011, Defendants filed an answer and a counterclaim seeking a declaration that Allstate has a duty to defend and a duty to indemnify them. Doc. No. 7.
On December 7, 2011, Allstate filed a motion for summary judgment, which was accompanied by a supporting memorandum ("Pl.'s Mot. Mem.") and a concise statement of facts ("Pl.'s CSF"). Doc. Nos. 16 & 17. On March 12, 2012, Defendants filed an opposition ("Defs.' Opp'n") and a response to Allstate's CSF ("Defs.' CSF"). Doc. Nos. 20 & 21. On March 16, 2012, Allstate filed a reply. Doc. No. 25.
The Court held a hearing on April 2, 2012.
On September 10, 2010, Leif and Kerry Martin, Jefferson's neighbors, filed a complaint in state court (the "underlying complaint") against Jefferson and Kevin Scott. Pl.'s CSF ¶ 1. In the underlying complaint, the Martins assert that Jefferson Scott punched Leif Martin in the face; Leif fell to the ground and lost consciousness; Jefferson kicked Leif in the upper body while he was unconscious; Kerry Martin helped a disoriented Leif to his feet; and that Kevin pulled a handgun from his waistband, threatened Leif, and then hit him in the face with the handgun. See Defs.'s Opp'n Ex. 2 ("Underlying Compl."), ¶ 9. The Martins assert a cause of action for assault and battery, a cause of action for negligence, a cause of action asserting the Scotts were "negligently engaged in the use of physical force upon [Leif] amounting to tortuous activity causing harm to [the Martins]"; and a cause of action asserting that the Scotts were jointly engaged in tortuous activity. Id. at 1-6. All counts are based on the same aforementioned actions of Jefferson and Kevin.
Both Jefferson and Kevin were convicted in state court of assault and terroristic threatening as a result of the incident. Specifically, on April 13, 2010, a jury convicted Jefferson of Assault in the Third Degree; Terroristic Threatening in the Second Degree; and a separate offense of Assault in the Third Degree. Pl.'s CSF Ex. A. On July 7, 2010, a jury convicted Kevin of Assault in the Second Degree; Terroristic Threatening in the Second Degree; and Terroristic Threatening in the First Degree. Pl.'s CSF Ex. B.
At the time of the underlying claims, Jefferson was insured under an Allstate Deluxe Homeowners' Policy, applicable to his residence located in Kailua-Kona (the "Policy"). The Policy provides the following coverage:
Section II Family Liability and Guest Medical Protection Coverage X Family Medical Protection Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies and covered by this part of the policy.
Pl.'s Mot. Ex. 1, Form AP-2, at 2-3. "Occurrence" is defined in the Policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage." Id. at 19.
The liability coverage provided in Coverage X was subject to the following exclusion:
Losses We Do Not Cover Under Coverage X
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. . . .
Allstate seeks a declaration that it has no duty to defend Jefferson or Kevin in the underlying action pursuant to the Policy.
I. Summary Judgment Standard
The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). Summary judgment is therefore appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion," and can do so in either of two ways: by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"; or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
"A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case. A 'genuine issue' of material fact arises if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).*fn2 Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Miller v. Glenn Miller Prods., 454 F.3d 975, 987 (9th Cir. 2006). The moving party may do so with affirmative evidence or by "'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.*fn3 Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. See ...