Brent Lambi v. American Family Mutual Ins. Co ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2453
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Brent Lambi
lllllllllllllllllllll Plaintiff - Appellant
v.
American Family Mutual Insurance Company
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 17, 2013
Filed: February 11, 2013
[Unpublished]
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Before BYE and MELLOY, Circuit Judges, and KOPF,1 District Judge.
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PER CURIAM.
Brent Lambi sued his homeowner's insurance carrier, American Family Mutual
Insurance Company (American Family), after the insurer failed to defend or
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
indemnify Lambi in a lawsuit brought against him by Brian Potter. Potter's lawsuit
alleged Lambi infected him with human immunodeficiency virus (HIV) while the two
men were engaged in sexual activity. The district court2 granted summary judgment
in favor of American Family after concluding the coverage provisions of Lambi's
policy were not triggered by this litigation. The district court further determined two
exclusions in the policy applied even assuming coverage was somehow initially
triggered.
Reviewing de novo, see Clinkscale v. St. Therese of New Hope, 701 F.3d 825,
827 (8th Cir. 2012), we affirm. To trigger coverage or a duty to defend under the
policy, the bodily injury alleged in Potter's lawsuit had to be included within the
policy's definition of bodily injury and Potter's injuries could not fall within any
exclusions. The policy stated bodily injury did not include:
a. any of the following which are communicable: disease, bacteria,
parasite, virus, or other organism which are transmitted by any insured
to any other person;
b. the exposure to any such communicable disease, bacteria, parasite,
virus, or other organism; or
c. emotional or mental distress, mental anguish, mental injury, or any
similar injury unless it arises out of actual bodily harm to the person.
The district court held that Lambi failed to establish Potter's alleged exposure to HIV
triggered coverage because the definition of bodily injury excepted from its meaning
the transmission of communicable diseases, such as infecting a sexual partner with
HIV. The policy also had an "abuse" exclusion for bodily injury arising out of or
resulting from any actual or alleged sexual molestation or contact, and another
2
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
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exclusion for bodily injury arising out of the actual or alleged transmission of a
communicable disease. The district court held that American Family established the
applicability of both of these exclusions.
Lambi contends the policy's definition of bodily injury is ambiguous because
it includes "sickness" but not "communicable disease." We need not decide that
issue, however, because it is clear both of the exclusions apply even assuming
coverage was initially triggered under the policy. See Brake Landscaping &
Lawncare, Inc. v. Hawkeye-Security Ins. Co., 625 F.3d 1019, 1023 n.3 (8th Cir. 2010)
(declining to reach an initial coverage question where it was clear a policy exclusion
applied even if coverage was triggered); see also Westfield Ins. Co. v. Robinson
Outdoors, Inc., 700 F.3d 1172, 1174-75 (8th Cir. 2012) ("We will assume, without
deciding, that the claims in the underlying lawsuits are covered by the insurance
policies because even if [the insured] could prove the underlying lawsuits were
covered, we hold the exclusion provision precludes coverage."). The policy's "abuse"
exclusion unambiguously excludes coverage for bodily injury arising out of actual or
alleged sexual contact, which is precisely the type of bodily injury Potter alleged in
his lawsuit. Similarly, the policy excluded bodily injury arising out of the actual or
alleged transmission of a communicable disease, and infecting another with the HIV
virus clearly falls within the plain and ordinary meaning of the transmission of a
communicable disease.
We affirm the judgment of the district court.
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