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ALLSTATE INS. CO. v. TANKOVICH

October 3, 1991

ALLSTATE INSURANCE COMPANY, Plaintiff,
v.
FRANK TANKOVICH, JAMES AHL, DEBORAH AHL and VICTORIA AHL, a minor, by and through her guardian, ad litem, JAMES AHL, Defendants


Robert F. Peckham, United States District Judge.


The opinion of the court was delivered by: PECKHAM

ROBERT F. PECKHAM, UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 We are presented with concurrent motions for summary judgment and application for default judgment by plaintiff Allstate Insurance Company ("Allstate"). The defendants in this action are Frank Tankovich, an Allstate Homeowner's Policy holder, and the Ahls, who have received a civil judgment in State Court against Mr. Tankovich for injuries caused by his racially motivated hate crimes. The Ahls claim that Mr. Tankovich's homeowners insurance policy should be used to satisfy their judgment. Allstate seeks a declaration that it owes neither a duty to defend nor indemnify the insured, Mr. Tankovich, for any losses suffered by the Ahls. In addition, Allstate seeks a default judgment against Mr. Tankovich who has failed to appear in this action.

 BACKGROUND

 This case is the product of a series of tragic events. Defendant Frank Tankovich and defendants James Ahl, his wife, Deborah Ahl, and his daughter, Victoria Ahl (the "Ahls"), were next door neighbors in Concord, California for a period of several months. The Ahls rented their house and Mr. Tankovich owned his house. The Ahls were victims of hate crimes perpetrated by Mr. Tankovich which forced them to change residences. Mr. Tankovich's alleged misconduct includes:

 
o telephoning the Ahls' landlord and leaving racially offensive and threatening messages on his answering machine;
 
o making loud offensive racial comments so that Deborah Ahl would overhear such comments;
 
o sending a dog owned by Mr. Tankovich to chase Victoria Ahl, a child, and Deborah Ahl, her mother;
 
o driving Mr. Tankovich's truck onto the Ahls' front lawn and banging on the Ahls' door threatening to kill them;
 
o throwing firecrackers onto the back lawn of the Ahls' house; and
 
o spray painting racially offensive words on the front of the home after the Ahls had vacated it.

 In March, 1990, Mr. Tankovich pleaded "no contest" and was found guilty on charges of violating various sections of the California Penal Code as a result of the misconduct alleged above, including:

 
o section 422.6(b) (applying to persons "who knowingly deface . . . [property] . . . for the purpose of intimidating or interfering [with another person's exercise of rights] . . . because of the other person's race . . .");
 
o section 594 (prescribing penalties for a person who "maliciously . . . defaces with paint . . ."); and
 
o section 653M(a) (prescribing penalties for a person who "with intent to annoy telephones another and addresses . . . any threat to inflict injury to the person or property of the person . . .").

 In May, 1990, the Ahls filed their second amended complaint suing Mr. Tankovich for damages resulting from his misconduct. In deposition, Mr. Tankovich admitted to telephoning the Ahls' landlord and leaving racially offensive and threatening messages on his answering machine, driving his truck onto the Ahls' lawn and threatening them, and spray painting racially offensive words on the Ahls' house. On September 25, 1990, following a civil trial, the Superior Court, Contra Costa County, entered judgment in favor of the Ahls and against Mr. Tankovich in the amount of $ 159,032.71, including $ 48,400 in actual damages, $ ...


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