Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment order of the Superior Court of Orange County, No. 30-2009-00118514 Robert J. Moss, Judge.
Law Offices of John M. Kremer, John M. Kremer; and Kristen Martin for Defendant and Appellant.
SNR Denton US and Susan M. Walker for Plaintiff and Respondent.
OPINION
FYBEL, J.
I. Introduction
George Armitage appeals from a judgment declaring Finial Insurance Company (Finial) did not have a duty to defend or indemnify him under the terms of a commercial lines insurance policy in a personal injury lawsuit brought by Douglas Harp. That lawsuit arose out of an incident in which Armitage drove a large dump truck into a parked pickup truck in which Harp was seated, causing Harp to suffer injuries. Armitage later pleaded nolo contendere to a charge of assault with a deadly weapon other than a firearm or by means of force likely to cause great bodily injury.
We affirm because substantial evidence supported a finding Armitage’s acts were not an accident within the meaning of the insuring agreement of the policy and California law. Armitage’s nolo contendere plea was an admission he committed the elements of assault with a deadly weapon. Though not conclusive, Armitage’s nolo contendere plea constituted evidence of matters admitted by the plea, and those matters included the element of intent to commit the acts causing the injury.
Because Armitage acted intentionally, his actions did not constitute an accident under the terms of the insuring agreement of the policy. Finial therefore had no duty to defend Armitage in Harp’s lawsuit or to indemnify him from the judgment resulting from it. Armitage also appealed from a postjudgment order denying his motion to vacate the statement of decision and judgment; we conclude that order was not appealable and dismiss that portion of the appeal.
II. Facts
A. Underlying Facts
The facts adduced at trial were based on 10 stipulated facts and seven exhibits received in evidence (trial exhibits 1 through 5, 8, and 9). At Armitage’s request, the trial court took judicial notice of our opinion in Harp v. Armitage, supra, G040817 and the order, filed January 14, 2010, modifying that opinion. The court did not “accept as evidence the recitation of facts in that opinion.” At Finial’s request, the trial court took judicial notice of the felony complaint against Armitage.
Finial was formerly known as Converium Insurance (North America) Inc. (Converium). Converium issued commercial lines policy No. SCI-PK-006153 (the Policy) to Leading Edge for the policy period March 17, 2003 to March 17, 2004.
On November 26, 2003, Harp was injured when his parked pickup truck was struck by a large dump truck owned by Leading Edge and driven by Armitage (the November 26, 2003 incident).
In September 2004, Converium’s claims manager sent Armitage a reservation of rights under the Policy for Harp’s claim for bodily injury allegedly sustained in the November 26, 2003 incident. The reservation of rights letter to Armitage states: “Mr. Harp is making a personal injury claim as a result of the above incident. Per the crime report pertaining to the [November 26, 2003] incident, a vehicle operated by you rammed a vehicle operated by Mr. Harp. The crime report indicates that you intentionally rammed the vehicle operated by Mr. Harp and pushed it off the road, down an embankment. Additionally, the crime report and other information indicate that immediately prior to the incident, you were in the process of attempting the theft of acetylene bottles. Finally, we are in receipt of information that the vehicle you were operating at the time of the incident (a dump truck) was stolen and/or being used without the permission or consent of Leading Edge.” The letter also states: “Per the crime report and our investigation conducted thus far, you intentionally rammed another vehicle and pushed it off of the roadway. Mr. Harp claims bodily injury as a result. As set forth in the above exclusion, the Converium policy does not cover expected or intended injury.”
Armitage waived his right to select independent defense counsel for Harp’s claim against him related to the November 26, 2003 incident.
In March 2005, Harp filed a lawsuit entitled “Douglas C. Harp v. George Armitage Jr., et al.” in Orange County Superior Court, case No. 05CC04257 (the Harp Lawsuit). The Harp Lawsuit asserted, among other things, causes of action against Armitage for motor vehicle negligence and negligence. Converium provided Armitage a defense to the Harp Lawsuit subject to a reservation of rights.
On June 12, 2008, a third amended judgment (the Judgment) was entered in the Harp Lawsuit. The Judgment awarded Harp damages jointly and severally against Armitage and Leading Edge in the amount of $1,092,500 and against Armitage severally in the amount of $294,000.
Armitage and Leading Edge appealed from the Judgment. We affirmed the Judgment against Leading Edge in Harp v. Armitage (Dec. 18, 2009, G040817) (nonpub. opn.). We affirmed the Judgment against Armitage in Armitage v. Mesa Contracting Corp. (Mar. 3, 2010, G040803) (nonpub. opn.). In response to a petition for rehearing filed by Leading Edge, we modified Harp v. Armitage, supra, G040817 without a change in judgment and denied the petition for rehearing on January 14, 2010. The parties stipulated Leading Edge’s petition for review “is pending before the California Supreme Court.” On our own motion, we take judicial notice of the fact the California Supreme Court has denied Leading Edge’s petition for review. (Evid. Code, §§ 452, subds. (c) & (d), 459.)
On June 25, 2008, Armitage pleaded nolo contendere to charges he violated Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury) and section 647, subdivision (a) (engaging in lewd or dissolute conduct in a public place). The court minutes for that date state, “Defendant’s motion to WITHDRAW GUILTY PLEA to count(s) 1, 3 granted. [¶]... To the Original Complaint defendant pleads NOLO CONTENDERE as to count(s) 1, 3.” The charges against Armitage stemmed from the November 26, 2003 incident.
B. Relevant Policy Terms
The Policy’s insuring agreement in Section II - Liability Coverage extends insurance coverage to losses caused by an accident: “We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’” (Italics added.)
The Policy defines “accident” as follows: “‘Accident’ includes continuous or repeated exposure to the same conditions resulting in ‘bodily injury’ or ‘property damage.’”
The Policy includes the following exclusion: “EXPECTED OR INTENDED INJURY [¶] ‘Bodily injury’ or ‘property damage’ expected or intended from the standpoint of the ‘insured.’”
III. Procedural History
In February 2009, Finial filed its complaint seeking a declaration it had no duty under the Policy to defend Armitage in the Harp Lawsuit or to indemnify Armitage for the Judgment. In March 2010, a trial was held based on the stipulated facts, exhibits, matters of which the court took judicial notice, and trial briefs.
On March 9, 2010, the trial court issued a tentative decision in favor of Finial, which prepared and submitted a proposed statement of decision. Armitage filed objections to the proposed statement of decision, and, on the same day, the trial court signed the statement of decision and the Judgment.
In the statement of decision, the trial court made the legal conclusions “[a] nolo contendere plea to a felony crime is ‘the same as that of a plea of guilty for all purposes,’” “[a] plea of guilty admits all elements of the crime charged,” and “[a] nolo contendere plea is admissible as a party admission.” On the ultimate issue, the trial court found: “Armitage’s nolo contendere plea... is an admission of an intentional act which would negate coverage under the Policy for Armitage for Harp’s damages in the Underlying Suit and which is inherently harmful conduct that is uninsurable under [Insurance Code] Section 533. While Armitage’s admission standing alone is not conclusive proof, it is substantial proof that his conduct in driving the dump truck into Harp’s parked vehicle was not an accident, but rather was intentional, inherently harmful conduct likely to produce great bodily injury and that he expected or intended to injure Harp in the November 26, 2003 Incident. [¶] In response, Armitage offered no proof to the contrary. Thus, with no evidence offered to rebut the admission, the Court finds that [Finial] has shown by a preponderance of the evidence at trial that Armitage’s conduct was intentional and not covered by the Policy.”
Armitage moved ex parte to vacate the statement of decision. He contended the trial court signed it without considering his objections. After the trial court denied the ex parte motion, Armitage moved on regular notice to vacate the statement of decision and the Judgment on the same ground. The trial court denied the motion and in its minute order stated: “The defendant’s objections to the statement of decision have been considered by the court and are overruled. The statement of decision accurately reflects the court’s decision in regard to defendant Armitage.”
Armitage timely appealed from the Judgment entered in Finial’s favor and from the order denying his motion to vacate the statement of decision and the Judgment. An order denying a motion to set aside a previous judgment is generally not appealable, except in cases in which the law expressly provides for a motion to vacate, such as under Code of Civil Procedure section 473, subdivision (b). (Burnete v. La Casa Dana Apartments(2007) 148 Cal.App.4th 1262, 1265.) Armitage did not bring his motion to vacate the statement of decision and the Judgment under Code of Civil Procedure section 473, subdivision (b) and did not seek to vacate the Judgment on the statutory grounds of mistake, inadvertence, surprise, or excusable neglect. The order denying Armitage’s motion to vacate the statement of decision and the Judgment therefore was not appealable, and, consequently, we dismiss the appeal from that order.
IV. Standard of Review
The parties disagree on the applicable standard of review. Armitage contends we use a de novo standard because “this case was decided based on the interpretation of an insurance contract and an Insurance Code provision.” Finial contends we apply a substantial evidence standard to the trial court’s factual determinations.
Interpretation of an insurance policy is a question of law reviewed de novo. (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390.) We uphold the trial court’s findings of fact if they are supported by substantial evidence. (Wausau Underwriters Ins. Co. v. Unigard Security Ins. Co. (1998) 68 Cal.App.4th 1030, 1038.) The substantial evidence rule applies when, as in this case, stipulated facts leave an ultimate question of fact open for resolution. (Employers Mutual Casualty Co. v. Philadelphia Indemnity Ins. Co. (2008) 169 Cal.App.4th 340, 347.)
V. Discussion
A. Substantial Evidence Supported a Finding Armitage’s Acts Were Not an Accident Within the Meaning of the Policy’s Insuring Agreement.
The trial court found Armitage’s nolo contendere plea constituted evidence of an intentional act precluding coverage under the Policy. This finding was legally correct and supported by substantial evidence.
In the reply brief, Armitage argues the issue whether the November 26, 2003 incident was an “accident” was not presented at trial. That is not correct. Finial devoted three pages of its trial brief to the issue. Finial argued that by pleading nolo contendere, Armitage “admitted that his conduct which injured Harp was not accidental” and “[a]s such, it does not come within the Policy’s insuring agreement.”
The Policy’s insuring agreement provided coverage for losses caused by an “accident.” The California Supreme Court has defined the term “accident” to mean “‘“an unexpected, unforeseen, or undesigned happening or consequence from either a known or unknown cause.”’” (Hogan v. Midland National Ins. Co. (1970) 3 Cal.3d 553, 559; see Fire Ins. Exchange v. Superior Court (2010) 181 Cal.App.4th 388, 392 [“‘Accident’ is given a commonsense interpretation that it is an unintentional, unexpected, chance occurrence”].)
Whether an event is an accident is determined from “the injury-producing acts of the insured.” (Delgado v. Interinsurance Exchange of Automobile Club of Southern California (2009) 47 Cal.4th 302, 315.) The term “accident” refers to the insured’s intent to commit the act giving rise to liability, not to the insured’s intent to cause harm. (Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 810.) Thus, intentional conduct is not an accident regardless whether the insured intended the harm resulting from that conduct. (Id. at pp. 810 811; see also Fire Ins. Exchange v. Superior Court, supra, 181 Cal.App.4th at p. 392 [“Where the insured intended all of the acts that resulted in the victim’s injury, the event may not be deemed an ‘accident’ merely because the insured did not intend to cause injury”].)
Armitage argues the Policy defines the term “accident” to mean only “continuous or repeated exposure to the same conditions resulting in ‘bodily injury’ or ‘property damage.’” The Policy states the term “accident” “includes” (italics added) such continuous or repeated exposure; the Policy does not so limit the meaning of that term.
By statute, a nolo contendere plea to a felony is “the same as that of a plea of guilty for all purposes.” (Pen. Code, § 1016, subd. 3.) “A guilty plea admits every element of the charged offense and constitutes a conviction.” (In re Chavez (2003) 30 Cal.4th 643, 649.)
“Because a felony guilty plea is admissible as a party admission in a subsequent civil action arising out of the same offense, so too is a felony nolo contendere plea. The plea is not conclusive evidence; it is merely evidence against the party and the party may contest the truth of the matters admitted by his plea and explain why he entered the plea.” (Rusheen v. Drews (2002) 99 Cal.App.4th 279, 284; see also Century National Ins. Co. v. Glenn (2001) 86 Cal.App.4th 1392, 1397 [“Although it does not have collateral estoppel effect, [the insured]’s no contest plea and conviction constituted admissible evidence that he committed the crime as described in the statute”]; Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661, 672 [“Guilty and nolo pleas are admissible in a subsequent civil action, such as the underlying action, as an admission of the crime”].)
Armitage pleaded nolo contendere to a charge of assault with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1). His plea thus became evidence of the following elements of that crime:
1. Armitage did an act with a deadly weapon, or did an act, that by its nature would directly and probably result in the application of force to a person.
2. Armitage did that act willfully.
3. When Armitage acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.
4. When Armitage acted, he had the present ability to apply force likely to produce great bodily injury or with a deadly weapon to a person.
5. Armitage did not act in self defense.
(CALCRIM No. 875.)
Penal Code section 7, subdivision 1 states: “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” Assault with a deadly weapon thus is a general intent crime. The mental element for the assault charge is: “[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790; see also People v. Colantuono (1994) 7 Cal.4th 206, 214 [“Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm”]; In re Gavin T. (1998) 66 Cal.App.4th 238, 241 [“The crime of assault... requires a showing of criminal intent, or an intentional act whose reasonable and probable consequences are inherently dangerous to human life”].)
By pleading nolo contendere to assault with a deadly weapon, Armitage admitted he acted intentionally in driving the dump truck into Harp’s pickup truck. Because Armitage acted intentionally, his conduct was not an accident even if he did not intend to injure Harp. (Fire Ins. Exchange v. Superior Court, supra, 181 Cal.App.4th at p. 392; Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50.) Armitage’s admission constituted evidence his conduct was intentional and not an accident; as the trial court correctly found, “[w]hile Armitage’s admission standing alone is not conclusive proof, it is substantial proof that his conduct in driving the dump truck into Harp’s parked vehicle was not an accident.”
Substantial evidence therefore supported the finding Armitage’s “injury producing acts” were intentional and not an “accident” within the meaning of the insuring agreement of the Policy. Because Armitage’s acts were not an accident, they did not come within the Policy’s insuring agreement, and Finial did not have a duty under the terms of the Policy to defend Armitage in the Harp Lawsuit or to indemnify Armitage from the Judgment.
Because we conclude Armitage’s acts do not come within the Policy’s insuring agreement, we do not address whether the Policy exclusion for expected or intended injury, or the exclusion under Insurance Code section 533 for willful conduct, negated coverage.
B. The Trial Court Considered Armitage’s Objections to the Statement of Decision Before Signing It.
Armitage argues the trial court erred by failing to consider his objections to the proposed statement of decision before signing the statement of decision. The trial court signed the statement of decision on the same day Armitage filed his objections. But in denying Armitage’s motion to vacate the statement of decision, the trial court confirmed it had considered Armitage’s objections and had overruled them. The court stated, “[t]he statement of decision accurately reflects the court’s decision in regard to defendant Armitage.”
After the statement of decision was filed, Armitage again had the opportunity to object to the statement of decision and bring any ambiguities or omissions in it to the trial court’s attention. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59.) He did not do so.
VI. Disposition
The appeal from the order denying Armitage’s motion to vacate the statement of decision and the Judgment is dismissed. The Judgment is affirmed. Respondent shall recover costs incurred on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.