                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 21 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TRAVELERS COMMERCIAL                             No. 15-15841
INSURANCE COMPANY,
                                                 D.C. No. 3:14-cv-04379-RS
              Plaintiff-counter-
              defendant-Appellee,
                                                 MEMORANDUM*
 v.

JENNIFER A.,

              Defendant-counter-claimant-
              Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                             Submitted May 16, 2017**
                              San Francisco, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HUCK,*** District

Judge.

         Defendant-Appellant Jennifer A. (“Appellant”) appeals the district court’s

order granting judgment on the pleadings to Plaintiff-Appellee Travelers

Commercial Insurance Company (“Travelers”). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

         This is an insurance coverage dispute between a claimant, Appellant, and an

insurer, Travelers, which provided a homeowners’ liability insurance policy to the

insured, third-party Jeffrey W. Jeffrey had contemporaneous, unprotected sex with

multiple partners, thereby placing Appellant in fear of contracting HIV and

hepatitis. Jeffrey’s policy provided a duty to defend or indemnify claims for

bodily injury caused by an “occurrence,” which is defined as “an accident.” The

issues are whether Jeffrey’s conduct triggers a duty to indemnify or defend Jeffrey,

and whether an alleged ambiguity affirmative defense precluded judgment on the

pleadings.

         Jeffrey’s acts of unprotected sex with other women, the conduct for which

liability was imposed, were deliberate acts and therefore were not accidents within



         ***
             The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
                                            2
the meaning of the policy. See Delgado v. Interins. Exch. of Auto. Club of S. Cal.,

211 P.3d 1083, 1086 (Cal. 2009); Merced Mut. Ins.Co. v. Mendez, 261 Cal. Rptr.

273, 279 (Ct. App. 1989). As such, Travelers had no duty to indemnify Jeffrey

under the homeowners’ insurance policy. Additionally, because these facts, as

pleaded in Appellant’s complaint, create no potential for coverage, “there is no

duty to defend.” Uhrich v. State Farm Fire & Cas. Co., 135 Cal. Rptr. 2d 131, 137

(Ct. App. 2003) (quoting Quan v. Truck Ins. Exch., 79 Cal. Rptr. 2d 134, 138 (Ct.

App. 1998)). Therefore, Travelers had no duty to defend Jeffrey against

Appellant’s lawsuit because the allegations did not raise any possibility of

coverage. See Gray v. Zurich Ins. Co., 419 P.2d 168, 176–77, 176 n.15 (Cal.

1966).

      Finally, Appellant’s ambiguity defense is a defense that challenges the prima

facie case put forward by Travelers in its complaint for declaratory judgment. See

State Farm Mut. Auto. Ins. Co. v. Superior Court, 279 Cal. Rptr. 116, 118 (Ct.

App. 1991). Appellant’s defense does not foreclose judgment on the pleadings.

Because contractual ambiguity is a question of law for the court to decide,

Sprinkles v. Associated Indem. Corp., 114 Cal. Rptr. 3d 887, 891 (Ct. App. 2010),

and because the term “accident” is not ambiguous under California law, Delgado,

211 P.3d at 1086, the district court appropriately granted judgment on the


                                          3
pleadings, see Dunlap v. Credit Prot. Ass’n, L.P., 419 F.3d 1011, 1012 n.1 (9th

Cir. 2005).

      Each party shall bear its own costs.

      AFFIRMED.




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