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A California appellate court, affirming a trial court's decision, has ruled that a homeowners' insurance policy did not cover a lawsuit alleging that the insured shot the owner of a jewelry mart multiple times during an attempted armed robbery.

The Case

In November 2009, Thomas Bennett, who was in financial distress, asked the owner of the Alamo Jewelry Mart, Oscar Herrera, to obtain a large diamond for him that he said he was considering purchasing for his wife. Mr. Herrera contacted Bennett when the diamond arrived and the two arranged to meet at Mr. Herrera's store.

On the evening of December 3, 2009, Bennett – apparently under the influence of alcohol and drugs – armed himself with several loaded handguns and drove to the mart.

At the store, after some interchange, Bennett pointed a semi-automatic handgun at Mr. Herrera and stated, according to Mr. Herrera's account in a contemporaneous police report, “I'm sorry I have to rob you.” In his grand jury testimony, Mr. Herrera said Bennett's words were, “I'm sorry, but I have to do it. I have financial problems and I really – I need to do it.”

According to the police report, Mr. Herrera told the officer that Bennett told him, “I really fucked up,” and said that he would leave and not rob him if Mr. Herrera did not call the police.

Mr. Bennett then appeared to retrieve a second gun from his ankle, checked the gun to see if it was loaded, and a bullet ejected from the chamber of the gun. Bennett then said, “Well, fuck you,” and fired at Mr. Herrera, striking him in the chest.

Mr. Herrera “began to run around his store to escape from Bennett,” begging Bennett to stop shooting. Bennett continued to chase Mr. Herrera and pointed the gun at him several times.

Mr. Herrera then fled through his office and into a shop area behind the office. At one point Mr. Herrera attempted to close the door to his shop, but Bennett forced it open, continuing to shoot at him.

Mr. Herrera was wounded a second time, in the abdomen. He was, however, able to retrieve his own gun and he shot and wounded Bennett.

Bennett was arrested. He subsequently pleaded nolo contendere to attempted second degree robbery of Mr. Herrera, enhanced for the personal discharge of a firearm, for which he received a 23-year prison sentence.

At a deposition, Mr. Herrera described events somewhat differently from the police report. According to his deposition testimony, when Mr. Herrera first turned and saw Bennett pointing a gun at him, he asked, “Hey, what are you doing? What the heck are you doing?” and Bennett put the gun away in his coat pocket. The two proceeded to talk for 15 to possibly 25 minutes, and Bennett appeared to abandon his demand for the diamond. Eventually, Bennett backed up towards the door on his way out without the diamond.

At the door, Mr. Herrera testified at his deposition, another gun fell from Bennett's pants leg, Bennett insisted on showing him that the gun was not loaded, was surprised to find that it was, and while slamming the clip back into the gun it unintentionally discharged, hitting Mr. Herrera in the chest.

Then, according to Mr. Herrera's deposition testimony, Mr. Herrera somehow got to his office and tried closing the office door to keep Bennett out but Bennett, holding a gun, got his arm through the opening and, as they struggled over the gun, Mr. Herrera was shot a second time; three additional bullet holes were later observed in the office. Mr. Herrera reached for a gun of his own and shot at and wounded Bennett.

Mr. Herrera called 911, Bennett was taken into custody, and both he and Bennett were taken to the hospital.

Mr. Herrera filed a personal injury action against Bennett, alleging negligent, reckless, and intentional tort claims.

Bennett tendered defense of Mr. Herrera's lawsuit to CSAA Insurance Exchange, seeking coverage under his homeowners' insurance policy.

CSAA disclaimed coverage.

Mr. Herrera filed an amended complaint against Bennett, alleging only a negligence claim. He obtained judgment against Bennett for $3,689,361. In exchange for a covenant not to execute on the judgment, Bennett assigned his rights under the CSAA policy to Mr. Herrera.

CSAA went to court, seeking a declaration that there was no potential coverage under its policy, and that it was under no duty to provide a defense or indemnity.

The trial court granted summary judgment in favor of CSAA, and Mr. Herrera appealed.

The Appellate Court's Decision

The appellate court affirmed.

In its decision, the appellate court explained that if Bennett shot Mr. Herrera while attempting to rob him, Bennett's conduct was not an accident triggering coverage under the CSAA homeowners' insurance policy. In moving for summary judgment, the appellate court added, CSAA produced evidence that that was what occurred, negating the existence of liability and shifting the burden to Mr. Herrera to produce evidence of a triable issue of a fact that would establish the contrary.

The appellate court was not persuaded by Mr. Herrera's contention that the evidence created a triable issue as to whether the first shot that injured Mr. Herrera had been fired accidentally.

It agreed with the trial court that Bennett's conduct could not be “parsed into separate events or categories” but that the course of events “occurred continuously all in relation to one another, and there was temporal proximity between the time Bennett prepared his weapons, drove to the shop, and discharged his guns.”

The appellate court added that even if Bennett did not intend to fire the gun that fell from his pants, the discharge occurred shortly after he had pointed another gun at Mr. Herrera as part of an admitted attempt to rob him, and immediately before he chased Mr. Herrera into the rear of the store firing additional shots, including the shot to his abdomen.

In the appellate court's view, the initial firing, even if not part of Bennett's plan, could not be considered “unrelated to the intentional course of conduct in which he was engaged,” for which coverage did not exist under the terms of the CSAA insurance policy.

The appellate court added that even if Bennett went to the store to rob it but had second thoughts, those thoughts did not undo the fact that the initial shooting, even if inadvertent, occurred because Bennett intentionally went to the store armed with multiple weapons to commit a robbery, nor the fact that after the initial shooting Bennett chased Herrera to another room in the store and fired several more shots at him.

According to the appellate court, CSAA and the trial court had correctly determined there was never any potential for coverage of this claim.

The case is CSAA Ins. Exch. v. Herrera, No. A153429 (Cal. Ct. App. June 17, 2019).

Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. Mr. Meyerowitz is the Director of the Insurance Coverage Law Center and editor-in-chief of journals on insurance law, banking law, bankruptcy law, energy law, government contracting law, and privacy and cybersecurity law, among other subjects. He may be contacted at smeyerowitz@meyerowitzcommunications.com.