No Duty to Defend ADA Lawsuit Under CGL Policy - Summary Judgment Granted in Favor of Insurer in Declaratory Relief Action

July 1, 2003

The U.S. District Court, Eastern District of California, ruled that a liability insurer had no duty to defend a lawsuit against the insured, a resort-hotel, under the Americans with Disabilities Act and granted summary judgment in favor of the insurer with respect to the resort's bad faith lawsuit. Jean M. Lawler prepared the pre-litigation coverage opinion and handled the resulting declaratory relief action.  James S. Williams drafted the motion for summary judgment. The matter was coordinated with local counsel who argued the motion.

The plaintiff in the underlying ADA suit used a wheelchair to get around. She alleged that the insured's resort failed to meet ADA wheelchair-access requirements, and, as a result, that she was repeatedly thwarted in her attempts to gain access to various areas of the resort. In her complaint, the disabled plaintiff deliberately used terms and phrases commonly found in Commercial General Liability (CGL) policies in an apparent effort to create a basis for coverage for her claims under the resort's policy. For example, in an effort to trigger coverage under Coverage A, plaintiff generally alleged "bodily injury" and "negligence," and pleaded that her frequent encounters with so-called "architectural barriers," which allegedly denied her access to various portions of the resort, constituted "repeated exposure to substantially the same general harmful conditions," which is a phrase taken from the definition of "occurrence." She attempted to trigger Coverage B by alleging that the denial of access to various areas of the resort constituted "wrongful eviction."

The court was unswayed by these pleading contrivances and held that neither the creation of the "architectural barriers" by the resort nor plaintiff's deliberate encounters with those barriers constituted "occurrences" under Coverage A of the resort's CGL policy. The court also ruled that denial of access to various areas of the resort did not constitute "wrongful eviction," as that term is used in Coverage B.