Metropolitan Property & Casualty Insurance Company v. Kenneth Victor Nieto

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
METROPOLITAN PROPERTY &
CASUALTY INSURANCE COMPANY,
Plaintiff-Appellee,
v.
KENNETH VICTOR NIETO,
Defendant,
and
JOSH PEMBERTON,
Defendant-Appellant.
No. 14-35565
D.C. No. 3:13-cv-05805-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 7, 2017**
Seattle, Washington
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
FILED
MAR 09 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Josh Pemberton appeals from the entry of summary judgment in favor of
Metropolitan Property and Casualty in this insurance coverage dispute. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court correctly determined that Metropolitan had no duty to
defend or indemnify Karen and Kenneth Nieto because their liability did not arise
from an “occurrence” as defined in the policy. Pemberton’s injuries did not result
from an “accident” because Karen and Kenneth Nieto each engaged in deliberate
acts and the injuries were a reasonably foreseeable result of those acts, see Safeco
Ins. Co. of Am. v. Butler, 823 P.2d 499, 509 (Wash. 1992); Grange Ins. Ass’n v.
Roberts, 320 P.3d 77, 87 (Wash. Ct. App. 2013), regardless whether the Nietos
subjectively intended to injure Pemberton, see Butler, 823 P.2d at 510; United
Servs. Auto. Ass’n v. Speed, 317 P.3d 532, 540 (Wash. Ct. App. 2014).
Because his injuries did not result from an “accident,” Pemberton cannot
establish that “the loss falls within the scope of the policy’s insured losses.”
Moeller v. Farmers Ins. Co. of Wash., 267 P.3d 998, 1001 (Wash. 2011) (quoting
McDonald v. State Farm Fire & Cas. Co., 837 P.2d 1000, 1003–04 (Wash. 1992)).
Summary judgment was therefore proper.
AFFIRMED.
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