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Fire Ins. Exch. v. Estate of Therkelsen

Fire Ins. Exch. v. Estate of Therkelsen

Supreme Court of Utah

June 8, 2001, Filed

No. 990716

Opinion

 [**557]  DURRANT, Justice:

 [*P1]  On the evening of November 8, 1997, Otto Therkelsen, Jr., shot Steven A. Ness with a 9-millimeter semi-automatic handgun. Immediately afterward, he shot and killed his wife, Linda Therkelsen, and then fatally shot himself. Ness survived. He filed a complaint against Otto Therkelsen's estate, alleging both [***2]  battery and negligence in the shooting. The estate tendered the defense of the lawsuit to Fire Insurance Exchange, which had issued a homeowners policy to Therkelsen. Fire Insurance then filed a complaint against the estate and Ness seeking a declaratory judgment regarding its obligation to defend and, ultimately, indemnify the estate. Fire Insurance argued that the facts related to the shooting did not support a claim for negligence, and, therefore, it should not be required to defend or indemnify the estate. The trial court agreed and granted summary judgment to Fire Insurance. The estate appeals. 1 

BACKGROUND

 [*P2]  ] "In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. . . . We state the facts in this case accordingly." Tretheway v. Miracle Mortgage, Inc., 2000 UT 12, P2, 995 P.2d 599 (citations omitted).  [***3]  

 [*P3]  Ness met Linda Therkelsen at a bowling league in the fall of 1996. At the time, Linda and Otto Therkelsen were married. Ness and Linda became friends, and their relationship evolved into an intimate affair by the summer of 1997. Linda filed for divorce in October 1997 and also obtained a protective order against her husband. At some point in the Therkelsens' marriage, Therkelsen had told his wife that if she ever divorced him he would kill her and himself. After filing for divorce, Linda became concerned for her and her husband's safety, so she asked her son, Kendall, to remove the guns from the Therkelsens' house.

 [*P4]  Shortly after filing for divorce, Linda began moving into Ness's home. She continued to work at her house during the day. Otto Therkelsen had apparently moved out of the house and was staying in a room above his business, Otto's Auto and Marine. He wrote several letters to his wife in an attempt to reconcile the relationship, but to no avail.

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2001 UT 48 *; 27 P.3d 555 **; 2001 Utah LEXIS 84 ***; 423 Utah Adv. Rep. 19

Fire Insurance Exchange, Plaintiff and Appellee, v. The Estate of Otto F. Therkelsen, Jr., and Steven A. Ness, Defendants and Appellant.

Subsequent History:  [***1]  Application for Rehearing Denied July 26, 2001. The Publication Status of this Document has been Changed by the Court from Unpublished to Published July 31, 2001.

Prior History: Third District, Salt Lake County. The Honorable J. Dennis Frederick.

Disposition: We reverse the trial court's ruling granting Fire Insurance's motion for summary judgment as it relates to the duty to defend. We remand this issue for reconsideration consistent with this opinion. We affirm that part of the trial court's ruling determining Fire Insurance has no duty to indemnify the estate in the underlying action.

CORE TERMS

duty to defend, insured, trial court, underlying action, shooting, duty to indemnify, gun, extrinsic evidence, occurrence, homeowner's policy, contractual, terms, allegations, indemnify, coverage, handgun, summary judgment motion, no duty, insurer's duty to defend, intentional act, load

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Appeals, Summary Judgment Review, Appropriateness, Discovery, Methods of Discovery, Genuine Disputes, Materiality of Facts, Supporting Materials, Discovery Materials, Business & Corporate Compliance, Contracts Law, Contract Conditions & Provisions, Indemnity Clauses, Insurance Law, Remedies, Declaratory Judgments, Property Insurance, Obligations, Pleading & Practice, Motion Practice, Content & Form, Opposing Materials, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Disclosure Obligations, Costs & Attorney Fees, Legal Ethics, Professional Conduct, Frivolous Claims & Conduct, Evidence, Admissibility, Demonstrative Evidence, Policy Interpretation, Parol Evidence