                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUL 26 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
WESTERN NATIONAL ASSURANCE                       No.   15-35071
COMPANY, a Minnesota corporation,
                                                 D.C. No. 3:13-cv-05373- RBL
              Plaintiff-counter-
              defendant-Appellee,

 v.                                              MEMORANDUM*

SALLY WIPF, Personal
Representative/Administrator of the Estate
of Michael A. Erb,

              Defendant,

 and

ROBERT WARGACKI, Substitute
Administrator estate of Michael A Erb
personal representative of Anne-Marie
Wargacki estate of Anne-Marie Wargacki,

              Defendant-counter-claimant-
              Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                        Argued and Submitted July 13, 2017
                               Seattle, Washington

Before:      TASHIMA, McKEOWN, and NGUYEN, Circuit Judges.

      In June 2010, Michael Erb shot Anne-Marie Wargacki, his pregnant

girlfriend, immediately killing both her and her unborn child. Moments later, Erb

shot himself in the head. The police concluded it was a murder-suicide. Three

months later, Wargacki’s Estate filed a wrongful death lawsuit against Erb’s

Estate.1 After Erb’s Estate conceded liability, a jury awarded Wargacki’s Estate

more than $7 million in damages.

      During the pendency of the wrongful death suit, Erb’s Estate contacted

Appellee Western National Assurance Co. (“Western”) to obtain a copy of Erb’s

homeowner’s insurance policy. In two letters to Western, Erb’s Estate recounted

the facts of the shooting, requested a copy of the policy, and sought a coverage

determination. In January 2011, after obtaining a copy of the wrongful death

complaint, Western denied coverage.

      Ten months after entry of judgment – and more than two years after Western

denied coverage – Wargacki’s Estate sent a letter to Western demanding payment



      1
       Robert Wargacki (“Wargacki”), now acting as administrator of both the
Wargacki and Erb Estates, is here the Appellant.
                                          2
of the $7 million judgment. In response, Western initiated this action for

declaratory relief that Erb’s homeowner’s policy does not cover any liability

arising out of the shooting. Wargacki then filed a counterclaim for bad faith

insurance practices.

      Western filed a motion for summary judgment as to its duty to indemnify.

The district court granted the motion. Thereafter, the parties filed cross-motions

for summary judgment as to Western’s duty to defend and whether its refusal to

defend amounted to bad faith. After concluding that Western did not owe a duty to

defend under the policy, the court granted Western’s motion and denied

Wargacki’s.

      Wargacki now appeals the district court’s two summary judgment orders.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      We review de novo the district court’s grants of summary judgment. See

Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011) (citation

omitted). Viewing the evidence in the light most favorable to the nonmoving

party, we must determine “whether there are any genuine issues of material fact

and whether the district court correctly applied the relevant substantive law.” Id.

(citation omitted).




                                          3
      1.     Under Washington law, Western’s duty to indemnify turns on

whether, on a full evidentiary record, Erb is actually liable to the claimant and that

this liability is actually covered under the policy. See Hayden v. Mut. of Enumclaw

Ins. Co., 1 P.3d 1167, 1171 (Wash. 2000). Here, the undisputed facts – i.e., that

Erb took a loaded gun, pointed it at Wargacki’s head at close range, and pulled the

trigger – confirm that he was, at a minimum, criminally negligent. Western’s

policy unambiguously excludes from coverage injuries that result from Erb’s

“criminal acts.”2 Therefore, because Western had no duty to indemnify, the district

court did not err in granting summary judgment to Western on the duty to

indemnify claim.

      2.      In Washington, “[t]he duty to defend ‘arises at the time an action is

first brought, and is based on the potential for liability.’” Woo v. Fireman’s Fund

Ins. Co., 164 P.3d 454, 459 (Wash. 2007) (citation and emphasis omitted). “An

insurer has a duty to defend when a complaint against the insured, construed

liberally, alleges facts which could, if proven, impose liability upon the insured



      2
         Wargacki urges us to adopt a “strict construction” of the policy’s
exclusion provision such that it would apply to criminal acts only if they are
“expected, directed, or intentional.” We decline to do so because such an
interpretation is inconsistent with a plain reading of the provision’s text and
conflicts with our interpretation of similar language in other contexts. See, e.g.,
Rose v. U.S. Postal Serv., 774 F.2d 1355, 1360 n.14 (9th Cir. 1984).
                                           4
within the policy’s coverage.” Id. at 459 (internal quotation marks omitted).

Generally, “[t]he duty to defend . . . is determined from the ‘eight corners’ of the

insurance contract and the underlying complaint.” Expedia, Inc. v. Steadfast Ins.

Co., 329 P.3d 59, 64 (Wash. 2014).

      To determine whether Western had a duty to defend, then, we begin with the

complaint’s factual allegations. To be sure, the facts alleged in the wrongful death

complaint are sparse, consisting of a mere four paragraphs. Nevertheless,

Wargacki contends the complaint alleged that Erb accidentally or negligently shot

Wargacki, facts which, if proven, would not amount to a crime and therefore

Western would have a duty to defend. Even if we accept Wargacki’s premise that

an accidental or negligent shooting does not necessarily trigger the “criminal acts”

exclusion, but see Allstate Ins. Co. v. Raynor, 21 P.3d 707, 712 (Wash. 2001), his

argument fails. Although the complaint uses the term “negligently,” there are no

facts alleged that support this version of events. And, problematically, there are

several allegations – for example, that Erb’s conduct went “far beyond the pale of

human decency” and revealed a “callous disregard” for the safety of others – that

are entirely inconsistent with an accidental shooting. See Woo, 164 P.3d at 459

(noting that the insurer’s burden in a duty to defend case is “to determine if there




                                           5
are any facts in the pleadings that could conceivably give rise to a duty to defend”

(emphasis added) (citation omitted)).

      Because even a liberal construction of the complaint puts the reader on

notice that the shooting was criminal, Western’s duty to defend was not implicated.

Accordingly, the district court did not err in granting Western’s motion for

summary judgment on the duty to defend.

      3.     Because we affirm the district court that Western did not have a duty

to defend, it follows that we must likewise affirm the district court’s denial of

Wargacki’s motion for summary judgment on his bad faith claim. See Kirk v. Mt.

Airy Ins. Co., 951 P.2d 1124, 1126 (Wash. 1998) (“Bad faith will not be found

where a denial of coverage or a failure to provide a defense is based upon a

reasonable interpretation of the insurance policy.”).



AFFIRMED.




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