Brodkin v. State Farm Fire & Casualty Co.

• Decision Date: 21 December 1989
• Docket Number: No. G007004,G007004
• Citation: 265 Cal.Rptr. 710,217 Cal.App.3d 210
• Court: California Court of Appeals Court of Appeals
• Parties: Steven BRODKIN et al., Plaintiffs and Appellants, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant and Respondent.

Page 710

265 Cal.Rptr. 710

217 Cal.App.3d 210

Steven BRODKIN et al., Plaintiffs and Appellants, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant and Respondent.

No. G007004.

Court of Appeal, Fourth District, Division 3, California.

Dec. 21, 1989.

Review Denied March 29, 1990.

[217 Cal.App.3d 212] Lipsky & Blickenstaff, Kenneth C. Blickenstaff, Claremont, J. Edward Noneman, Jr., Shernoff, Scott & Bidart, and Michael J. Bidart, Claremont, for plaintiffs and appellants.

Wolf & Leo, Jeffrey H. Leo, Douglas R. Irvine, Jeffrey S. King, Los Angeles, Horvitz & Levy, Peter Abrahams and Lisa Perrochet, Encino, for defendant and respondent.

OPINION

SCOVILLE, Presiding Justice.

The sole issue presented by this appeal is whether the corrosion of a house foundation due to soil contamination is a covered peril under an "all-risk" homeowner's insurance policy. The trial court found that it was excluded under the terms of the policy and granted summary judgment in favor of the insurer. We agree and affirm the judgment.

I The Complaint

Plaintiffs Steven and Francine Brodkin are the owners of a single-family residence in La Palma. They were insured by defendant State Farm Fire and Casualty under a homeowner's insurance policy which provided coverage for "accidental direct physical loss" to the dwelling. ¹

In July 1985 the Brodkins discovered numerous cracks in the floor and foundation of the house. They filed a claim with State Farm, but the claim was denied on the ground the damages were excluded under the terms of the policy.

Two months later the Brodkins filed an action against State Farm and Chiquita Ector, the claims adjuster, alleging the damage to the foundation was "caused by the presence in the underlying soils of, among other things, cow urine which, due to the negligence of the builder, developer, and constructor of the residence, was allowed to remain in the soil and for which no adequate precautionary or remedial efforts were taken." In addition, they alleged State Farm breached its duty of good faith and fair dealing by, inter alia, failing to pay benefits when it knew the claim was covered under the policy, refusing to conduct a geological survey to discover the nature and extent of the problem, and selectively denying their claim while paying benefits to other homeowners similarly situated.

The Brodkins also alleged a statutory cause of action under Insurance Code section 790.03 for misrepresentation as to whether the claim was covered (subd. (h)(1)), failure to adopt standards for the prompt investigation and processing of claims (subd. (h)(3)), failure to effect a prompt, fair or equitable settlement of claims when liability was reasonably clear (subd. (h)(5)), and denying benefits without a reasonable explanation as to the basis of the denial (subd. (h)(13)). The complaint sought both compensatory and punitive damages.

The Insurance Policy

State Farm denied the allegations in the complaint and alleged loss was excluded under the policy. The policy provides in pertinent part:

"SECTION I--LOSSES INSURED

"COVERAGE A--DWELLING

"We insure for accidental direct physical loss to the property described in Coverage A except as provided in SECTION I--LOSSES NOT INSURED.

"...........................)27

"SECTION I--LOSSES NOT INSURED

"1. We do not insure for loss to the property described in Coverage A either consisting of, or directly and immediately caused by, one or more of the following:

"...........................)27

"b. freezing, thawing, pressure or weight of water or ice, whether driven by wind or not, to a fence, pavement, patio, swimming pool, foundation, retaining wall, bulkhead, pier, wharf or dock;

"...........................)27

"e. leakage or seepage of water or steam unless sudden and accidental from a: [p] (1) heating or air conditioning or automatic fire protective sprinkler system; [p] (2) household appliance; or [p] (3) plumbing system, including from or around any shower stall or other shower bath installation, bath tub or other plumbing fixture; ...

"f. wear, tear, marring, deterioration, inherent vice, latent defect and mechanical breakdown;

"g. rust, mold, wet or dry rot;

"h. contamination, smog, smoke from agricultural smudging or industrial operations;

"i. settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs, or ceilings;

"...........................)27

"2. We do not insure under any coverage for loss (including collapse of an insured building or part of a building) which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: a) the cause of the excluded event; or b) other causes of the loss; or c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss:

"a. Ordinance or Law, meaning enforcement of any ordinance or law regulating the construction, repair or demolition of a building or other structure.

"b. Earth Movement, meaning any loss caused by, resulting from, contributed to or aggravated by earthquake; landslide; mudflow; sinkhole; erosion; the sinking, rising, shifting, expanding or contracting of the earth....

"...........................)27

"3. We do not insure under any coverage for loss consisting of one or more of the items below:

"a. conduct, act, failure to act, or decision of any person, group, organization or governmental body whether intentional, wrongful, negligent, or without fault;

"b. defect, weakness, inadequacy, fault or unsoundness in: [p] (1) planning, zoning, development surveying, siting; [p] (2) design, specifications, workmanship, construction, grading, compaction; ..."

The Summary Judgment Motion

State Farm moved for summary judgment on the ground the insurance policy does not cover earth movement, third-party negligence, contamination or deterioration. It contended the exclusions were clear and unambiguous and that similar claims by other policyholders under identical policy language were held to be caused by excluded perils. (See State Farm Fire and Cas. Co. v. Martin (9th Cir.1989) 872 F.2d 319; State Farm Fire and Cas. Co. v. Martin (C.D.Cal.1987) 668 F.Supp. 1379.) The motion was supported by the declaration of Chiquita Ector.

The Brodkins opposed the motion on the ground State Farm failed to meet its burden of proving the Brodkins' loss was excluded under the policy. Characterizing the declaration of State Farm's adjuster was unsupported by any evidence, they asserted there was no proof their loss was due to earth movement. They submitted copies of geotechnical engineering reports prepared for other residences in La Palma which confirmed that corrosives in the soil caused and contributed to the damage to concrete foundations and metal piping in the area. The reports theorized that the corrosives were due either to cow urine because the land was previously the site of a dairy operation, or to the natural condition of the land, because the land was once a swamp.

Relying on Sabella v. Wisler (1963) 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889 and State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (limited by Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 412, 257 Cal.Rptr. 292, 770 P.2d 704), the Brodkins asserted that "coverage may be found not only where the included risk is the efficient or moving cause of the harm, but also where an included risk is a concurrent proximate cause of the harm." (Farmers Ins. Exchange v. Adams (1985) 170 Cal.App.3d 712, 722, 216 Cal.Rptr. 287, emphasis in the original, limited by Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d 395, 411-412, fn. 10, 257 Cal.Rptr. 292, 770 P.2d 704.) They contended that the existence of contaminants in the soil was a concurrent proximate cause and therefore their claim was covered under the terms of the policy.

The trial court reviewed the homeowner's policy and determined the loss was excluded. Summary judgment was granted in favor of State Farm on the coverage issue. A motion for reconsideration was denied and the Brodkins appeal from the judgment.

II

The Brodkins argue State Farm failed to prove the loss was excluded by the terms of the policy since there was no evidence as to the cause of the loss, and the proximate cause of the loss, corrosive soils, was not excluded. The arguments are without merit.

Under Code of Civil Procedure section 437c, summary judgment is proper where there is no triable issue of fact and the sole question is one of law. (Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 45, 261 Cal.Rptr. 273.) The interpretation of an insurance policy presents a question of law when the underlying facts are undisputed. (Royal Globe Ins....