Rhonda Cerny shot Craig Cerny in the chest with a .22 caliber revolver from a distance of five to ten feet. Rhonda pleaded guilty to Aggravated Assault. The factual basis for her plea agreement was that “she recklessly caused serious physical injury to C. Cerny by use of a deadly weapon, a gun.” Rhonda sought liability coverage for the resulting injuries under her American Automobile Insurance Company (“AAIC”) homeowners policy, claiming that “the gun inadvertently fired.”
AAIC filed a declaratory judgment action requesting a ruling that the shooting was not covered because 1) it was not an occurrence; and 2) it was excluded by the Intentional/Criminal Acts Exclusion. On July 12, Judge Susan Bolton of the U.S. District Court for the District of Arizona ruled in favor of AAIC—but did so in an Order that is not binding on either state or federal courts. In the Order, Judge Bolton found that Ms. Cerny “could not ignore” the statements made in her plea agreement.
Distinguishing Arizona cases that analyze similar facts under an intentional acts exclusion, the Court focused on whether the civil complaint against Ms.Cerny alleged an “accident” that would constitute an “occurrence” under the policy. Although no Arizona case was directly controlling, she was persuaded by opinions from other jurisdictions that criminally reckless conduct was not an “accident.”
Because she found that there was no occurrence, Judge Bolton did not reach the application of the Intentional/Criminal Acts Exclusion.
Am. Auto. Ins. Co., Plaintiff, v. Rhonda Cerny, et al., Defendants., No. CV-18-01597-PHX-SMB, 2019 WL 3068200 (D. Ariz. July 12, 2019).
