                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 15 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PATRICK GALVANI,                                 No. 12-16627

              Plaintiff - Appellant,             D.C. No. 4:11-cv-03848-PJH

  v.
                                                 MEMORANDUM*
TOKIO MARINE AND NICHIDO FIRE
INSURANCE CO., LTD.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                          Submitted November 6, 2013**
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

       Patrick Galvani appeals the district court’s denial of summary judgment to

him and grant of summary judgment to Tokio Marine and Nichido Fire Insurance

Company, his liability insurer, on his declaratory judgment and breach of contract

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action based on his insurer’s failure to defend or indemnify him in a suit for the

wrongful death of his wife. We have jurisdiction under 28 U.S.C. § 1291. We

review the district court’s judgment de novo, and we affirm.

      Under California law, “the [initial] burden is on the insured to bring the

claim within the basic scope of coverage” by showing that coverage is possible.

Delgado v. Interinsurance Exchange of Automobile Club of S. Cal., 211 P.3d 1083,

1090 (Cal. 2009) (quoting Waller v. Truck Ins. Exchange, Inc., 900 P.2d 619, 625

(Cal. 1995)). Galvani’s policy covered “damages because of bodily injury or

property damage, to which this insurance applies, caused by an occurrence.” The

policy defined “occurrence” as “an accident.” Although the policy did not define

“accident,” the California Supreme Court has construed the term, as used in a

similar policy, to mean “an unexpected, unforeseen, or undesigned happening or

consequence from either a known or an unknown cause.” Id. at 1086 (quoting

Geddes & Smith, Inc. v. St. Paul-Mercury Indem. Co., 334 P.2d 881, 884 (Cal.

1959)) (internal quotation marks omitted). When damage “is the direct and

immediate result of an intended . . . event,” there is no accident. State Farm Gen.

Ins. Co. v. Frake, 128 Cal. Rptr. 3d 301, 310 (Cal. Ct. App. 2011) (alteration in

original) (quoting Shell Oil Co. v. Winterthur Swiss Ins. Co., 15 Cal. Rptr. 2d 815,

838 (Cal. Ct. App. 1993)).

                                          2
      Here, Galvani’s wife’s death could not have resulted from an accident. The

only indication in the record of her cause of death is an autopsy report stating that

she died from strangulation. Her death was therefore the direct and immediate

result of someone’s intentional action, whether or not the perpetrator was Galvani.

      Contrary to Galvani’s argument, since his wife’s death could not have been

caused by an accident, it is irrelevant that the complaint alleges he might have

killed his wife “negligently.” See Quan v. Truck Ins. Exchange, 79 Cal. Rptr. 2d

134, 141 (Cal. Ct. App. 1998). Moreover, the fact that Galvani might not have

strangled his wife does not make her death an accident. To hold otherwise would

be inconsistent with the term’s plain meaning, the purpose of the parties in entering

into the insurance contract, and California precedent. See Delgado, 211 P.3d at

1087-92. Since the complaint does not allege that Galvani engaged in negligent

conduct in addition to the conduct resulting in his wife’s death, Horace Mann

Insurance Co. v. Barbara B., 846 P.2d 792 (Cal. 1993), is distinguishable. In that

case, the complaint alleged negligent conduct as well as intentional conduct, so

there was a possibility of coverage and thus a duty to defend. Here, there was no

possibility of coverage and thus no duty to defend.

      AFFIRMED.




                                          3
4
