The opinion of the court was delivered by: WARE
JAMES WARE, UNITED STATES DISTRICT JUDGE
By the instant motion for judgment on the pleadings, Allstate Insurance Company ("Allstate") seeks a declaration that it has no duty to defend or indemnify its insured, Lisa LaPore, in a defamation action filed in state court by Mark Jozwiak. Allstate contends that (1) the policy only covers "accidents," and defamatory statements may not be accidentally uttered; and (2) the policy only covers "bodily injury" and "property damage," and defamation damages do not constitute either one. Good cause appearing therefor, plaintiff's motion for judgment on the pleadings is hereby granted.
The following facts are undisputed. At all times relevant to this action, Allstate insured defendant Lisa LaPore ("LaPore") under a policy of homeowner's insurance. Ms. LaPore has been sued in the underlying action, Santa Clara Superior Court Case No. 691820, by defendant Mark D. Jozwiak ("Jozwiak" or "claimant").
In his complaint, Jozwiak alleges that Ms. LaPore falsely publicized in October 1988 and December 1988 that she had sexual intercourse with Jozwiak on at least two occasions. Mr. Jozwiak alleges damages of "loss of reputation, shame, mortification and hurt feelings" and "injury to his occupation." Jozwiak asserts claims for slander, slander per se, libel and libel per se, and seeks general, special, and punitive damages.
Ms. LaPore tendered her defense of the underlying action to Allstate, which agreed to defend the underlying action under a reservation of rights.
A motion brought pursuant to Federal Rule of Civil Procedure 12(c) should be granted if it is clear from the pleadings that there is no triable issue of fact and that the moving party is entitled to judgment as a matter of law. Hal Roach Studios v. Richard Feiner and Co., 883 F.2d 1429, 1436 (9th Cir. 1989). The construction of an insurance policy is a matter of law for the court in the absence of a genuine dispute as to the material facts. Continental Casualty Co. v. City of Richmond, 763 F.2d 1076, 1079 (9th Cir. 1985).
A. Allstate's Duty to Defend
Ms. LaPore's policy provides that "Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damages arising from an accident and covered by this part of the policy." Allstate Policy, at 23, Exhibit A to Complaint.
The insurer has the duty to defend the insured against loss of the nature and kind against which it was insured. Dyer v. Northbrook Property & Casualty Co., 210 Cal. App. 3d 1540, 1547, 259 Cal. Rptr. 298 (1989), citing Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 275, 54 Cal. Rptr. 104, 419 P.2d 168 (1966). By negative implication, the insurer has no duty to defend the insured against loss of the nature and kind that is not within the coverage of the policy. Id. Where the scope of the basic coverage is at issue, as it is here, the insured has the burden of showing that the event is a claim within the scope of the basic coverage. Hartford Fire Ins. Co. v. Karavan Enterprises, Inc., 659 F. Supp. 1075, 1076 (N.D. Cal. 1987), citing Royal Globe Insurance Co. v. Whitaker, 181 Cal. App. 3d 532, 537, 226 Cal. Rptr. 435 (1986). Thus, Ms. LaPore must prove that the underlying action arises from an "accident," and that the underlying action seeks damages on account of "bodily injury" or "property damage."
While acknowledging that the duty to defend is broader than the duty to indemnify, the Court finds that Ms. LaPore's statements were not accidental, and that Mr. Jozwiak seeks personal injury damages, ...