Livebythepark Palm Springs, LP v. Arch Specialty Insurance Co.

405 F. App'x 215

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2010
• Docket: 09-56296
• Status: Unpublished

Opinion

MEMORANDUM ***

Because the parties are familiar with the underlying facts, we repeat only those necessary to our decision.

Appellee had a duty to defend the Thompson action for negligently failing to provide adequate security. The attacker falsely imprisoned the tenant, however briefly, in the elevator before and distinct from the assault. The imprisonment began the moment the attacker stopped the elevator and continued throughout the entire subsequent assault, battery, and attempted rape, until he pushed the tenant out of the elevator. 1 A reasonable layperson reading the policy would believe it covered a false imprisonment claim that preceded an assault. Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 1088-84, 17 Cal.Rptr.2d 210, 846 P.2d 792 (1993); General Ins. Co. v. Am. Safety Indem. Co., 185 Cal.App.4th 1515, 111 Cal.Rptr.3d 403 (2010); see Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317 (11th Cir.2005); Ledbetter v. Concord General Corp., 665 So.2d 1166 (Sup.Ct.La.1996). Thus, Appellee’s reliance on the assault and battery exclusion fails.

The Court rejects Appellee’s conelusory argument that the policy would cover a false imprisonment only if committed by the insured. Appellee does not cite any language in the policy to support that view. In any event, the argument fails because the tenant alleged that all of her injuries arose out of the landlord’s failure to respond to the complaint that an “unkempt transient” was loitering on the grounds. See Minkler v. Safeco Ins. Co. of Am., 49 Cal.4th 315, 317, 110 Cal.Rptr.3d 612, 232 P.3d 612 (2010).

REVERSED AND REMANDED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . The attacker entered a guilty plea to false imprisonment.