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Safeco Ins. Co. of America v. Fireman's Fund Ins. Co.

Safeco Ins. Co. of America v. Fireman's Fund Ins. Co.

Court of Appeal of California, Second Appellate District, Division One

March 14, 2007, Filed

B187743

Opinion

 [**846]  MALLANO, Acting P. J.—In a prior action, an insured homeowner was found liable to a downhill neighbor for a landslide that inundated the neighbor's backyard with dirt and debris. The judgment totaled around $ 4 million. The homeowner's primary and excess insurers provided a defense and indemnity. This is a declaratory relief action between the insurers concerning the coverage provided  [**847]  under successive policies issued by the primary insurer.

Immediately after the landslide, the City of Los Angeles determined that the neighbor's backyard was [***2]  unusable and ordered the insured to repair the slope. But the slope went unrepaired for years, and the backyard remained unusable while each of the primary policies was in effect.

The primary insurer issued four successive policies that covered an “occurrence [of] property damage,” defined as an accident, including continuous exposure to the same conditions resulting in a loss of use during the policy period. The policies separately covered an “occurrence [of] personal injury,”  [*625]  which included “an act … that occurs during the policy period and which results [in wrongful entry or eviction].” Each policy had limits of $ 500,000 per occurrence.

CA(1)(1) In this case, the primary insurer contended it was liable for only one occurrence, or $ 500,000. The excess insurer argued that because both property damage and personal injury occurred in all four policy periods, the primary insurer was liable for up to $ 4 million. The trial court granted summary judgment for the primary insurer, stating that coverage under the primary policies was limited to $ 500,000. We agree. There was only one occurrence because the ensuing damage was the result of one cause: the landslide. Further, under the [***3]  policy language, the continuation of any damage into subsequent policy periods—for example, loss of use—did not give rise to multiple occurrences. The judgment is accordingly affirmed.

BACKGROUND

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148 Cal. App. 4th 620 *; 55 Cal. Rptr. 3d 844 **; 2007 Cal. App. LEXIS 352 ***; 2007 Cal. Daily Op. Service 2722; 2007 Daily Journal DAR 3483

SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff and Appellant, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant and Respondent.

Subsequent History: Rehearing denied by Safeco Ins. Co. of America v. Fireman's Fund Ins. Co., 2007 Cal. App. LEXIS 788 (Cal. App. 2d Dist., Apr. 12, 2007)

Prior History:  [***1]  APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC278196, Leon S. Kaplan, Judge.

CORE TERMS

occurrence, coverage, policies, insured, damages, property damage, policy period, landslide, personal injury, neighbors, loss of use, nuisance, slope, indemnity, triggered, italics, duty to defend, policy limit, eviction, uphill, backyard, limits, per occurrence, repair, conditions, settlement, wrongful entry, provisions, summary judgment, physical injury

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Burdens of Proof, Movant Persuasion & Proof, Appeals, Summary Judgment Review, Standards of Review, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Ordinary & Usual Meanings, Question of Law, Business Insurance, Commercial General Liability Insurance, Duty to Defend, Coverage, Triggers, Indemnification, Occurrences, Advertising & Personal Injuries, Personal Injuries