Interstate Fire & Casualty Co. v. Roman Catholic Church of the Diocese of Phoenix

Does “any” mean “any,” or does “any” mean “any one”? The answer to this seemingly simple question dictates the result in this insurance coverage case, which arises from the alleged sexual abuse of adolescent males by priests in the Roman Catholic Church of the Diocese of Phoenix (“the Diocese”). The excess indemnity policy provided by Interstate Fire & Casualty Company, Inc. (“IFC”) to the Diocese excludes “liability of any Assured for assault and battery committed by or at the direction of such Assured.... ” Based on the ordinary meaning of this exclusion and consistent with Arizona law, we conclude that “the language ‘any insured’ ... expresses] a contractual intent to prohibit recovery by innocent co-insureds.” Am. Family Mut. Ins. Co. v. White, 204 Ariz. 500 , 65 P.3d 449, 457 (Ariz.Ct.App.2003). We reverse the district court’s judgment in favor of the Diocese, and vacate and remand its grant of attorneys’ fees and taxable costs.

This action follows the Diocese’s settlement of four lawsuits for alleged sexual abuse by its priests, after which the Diocese filed a declaratory judgment action seeking entitlement to indemnification under IFC’s excess liability indemnity…

dissenting:

Because I believe that the plain language of the policy provision relied on by IFC excludes coverage only for those individuals who commit or direct an assault or battery, I would affirm the district court. I respectfully dissent.

I agree with the majority that this case turns on what exactly the plain meaning of the phrase “such Assured” refers back to. See Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. 529 , 647 P.2d 1127, 1132 (1982). In my view, however, the definition of “such” adopted and applied by the majority — “having a quality already or just specified — used to avoid repetition of a descriptive term[,]” — does not refer back to the class of “any Assured[s]” “just specified.” Instead, “such” refers to those Assureds “having a quality already or just specified.” Maj. Op. at 955 (emphasis added). Referring to the language of the exclusion, I see three possible qualities that “such” can refer to. First, the exclusion identifies “the liability of any Assured,” so “such” may refer to those Assureds facing liability. Second, the exclusion references “any Assured,” meaning that “such” might refer to the entire class of those covered by the policy. Finally, the…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTERSTATE FIRE & CASUALTY No. 12-17195 COMPANY, INC., an Illinois corporation, D.C. No. Plaintiff-Counter-Defendant– 2:09-cv-01405- Appellant, NVW

v.

ROMAN CATHOLIC CHURCH OF THE

DIOCESE OF PHOENIX, a corporation sole, by and through Bishop Thomas J. Olmsted, his predecessors and successors, Defendant-Counter-Claimant– Appellee.

INTERSTATE FIRE & CASUALTY No. 12-17264 COMPANY, INC., an Illinois corporation, D.C. No. Plaintiff-Counter-Defendant– 2:09-cv-01405- Appellee, NVW

v.

ROMAN CATHOLIC CHURCH OF THE

DIOCESE OF PHOENIX, a corporation sole, by and through Bishop Thomas J. Olmsted, his predecessors and successors, Defendant-Counter-Claimant– Appellant.

INTERSTATE FIRE & CASUALTY No. 13-15223 COMPANY, INC., an Illinois corporation, D.C. No. Plaintiff-Counter-Defendant– 2:09-cv-01405- Appellant, NVW

v.

OPINION

ROMAN CATHOLIC CHURCH OF THE

DIOCESE OF PHOENIX, a corporation sole, by and through Bishop Thomas J. Olmsted, his predecessors…