                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CROWN TREE SERVICE, INC. and                    No.   16-17117
ANTHONY KOENN, DBA Crown Tree
Service,                                        D.C. No. 3:16-cv-01125-VC

                Plaintiffs-Appellants,
                                                MEMORANDUM*
 v.

ATAIN SPECIALTY INSURANCE
COMPANY, a Michigan corporation
domiciled in the State of Texas and doing
business in California,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Vince Chhabria, District Judge, Presiding

                     Argued and Submitted February 13, 2018
                            San Francisco, California

Before: HAWKINS and TALLMAN, Circuit Judges, and JACK,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Janis Graham Jack, United States District Judge for the
Southern District of Texas, sitting by designation.
      Anthony Koenn and Crown Tree Services, Inc. (collectively, Koenn) appeals

the grant of summary judgment in favor of Atain Specialty Insurance Company. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      This is an insurance coverage dispute arising from a commercial general

liability policy sold by Atain to Koenn. The Bear Yuba Land Trust sued Koenn after

he removed trees from Bear Yuba’s property under a belief the trees belonged to a

neighbor. Koenn’s policy provided a duty to defend claims for property damage

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

      There is inconsistent authority among California Court of Appeal cases on

whether an insured’s reasonable belief, as was Koenn’s here, transforms an

intentional act into an accident. Compare Fire Ins. Exch. v. Superior Court, 104

Cal. Rptr. 3d 534, 538–41 (Ct. App. 2010) (holding an intentional act cannot be an

accident based on the insured’s subjective beliefs), and Albert v. Mid-Century Ins.

Co., 187 Cal. Rptr. 3d 211, 219 (Ct. App. 2015) (same), with Karpe v. Great Am.

Indem. Co., 11 Cal. Rptr. 908, 911–12 (Ct. App. 1961) (holding an insured’s

dispatch of another’s cow to the slaughterhouse was potentially accidental because

the insured might have confused the cow for one of his own).

      We predict the California Supreme Court would hold that an insured’s

subjective belief—no matter how reasonable—cannot transform an intentional act

into accidental conduct. See, e.g., Std. Fire Ins. Co. v. Peoples Church of Fresno,


                                        2
985 F.2d 446, 449–50 (9th Cir. 1993) (analyzing how the California Supreme Court

would resolve an unresolved question of insurance policy interpretation); A-Mark

Fin. Corp. v. CIGNA Prop. & Cas. Cos., 40 Cal. Rptr. 2d 808, 814–15 (Ct. App.

1995) (same). Karpe, which held to the contrary, appears to have been implicitly

overruled. First, Karpe equated negligence with accidental conduct, which the

California Supreme Court has subsequently rejected as overly simplistic.          See

Delgado v. Interins. Exch. of Auto. Club of S. Cal., 211 P.3d 1083, 1091–92 (Cal.

2009). Second, although the California Supreme Court has held that an insured’s

unreasonable belief cannot turn a “purposeful and intentional act” into “an

accident,” id. at 1092, California courts have recognized that Delgado’s holding was

not limited to unreasonable beliefs, see Fire, 104 Cal. Rptr. 3d at 538 n.2; Albert,

187 Cal. Rptr. 3d at 219. In contrast, no California court has relied on Karpe for its

holding that subjective belief may influence the accident analysis.

      Further, a potential for coverage does not exist merely because California

courts have interpreted the policy term “accident” differently. See State Farm Mut.

Auto. Ins. Co. v. Longden, 242 Cal. Rptr. 726, 730 (Ct. App. 1987) (“We know of

no case suggesting that an insurer has a duty to defend where the only potential for




                                          3
liability turns on resolution of a legal question.”). Thus, because there was no

potential for coverage, Atain did not owe Koenn a duty to defend.1

      AFFIRMED.




      1
            Because we affirm the grant of summary judgment on the basis that
Koenn lacked any potential for coverage, we do not reach Atain’s alternative
arguments that coverage was excluded.

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