Conway v. Northfield Ins. Co.
Citation | 399 F.Supp.3d 950 |
Decision Date | 16 July 2019 |
Docket Number | Case No. 18-cv-06407-YGR |
Parties | Shirley CONWAY, Plaintiff, v. NORTHFIELD INSURANCE COMPANY, Defendant. |
Court | U.S. District Court — Northern District of California |
A. Geoffrey Hutchinson, John R. Campo, Attorney at Law, Redwood City, CA, for Plaintiff.
Lenell Topol McCallum, Bruce D. Celebrezze, Alexander Eugene Potente, Clyde & Co. U.S. LLP, San Francisco, CA, for Defendant.
ORDER GRANTING CONWAY'S MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING NORTHFIELD'S CROSS-MOTION FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 18, 19
The Court considers herein cross motions for summary judgment by plaintiff Shirley Conway ("Conway") and defendant Northfield Insurance Company ("Northfield") regarding the latter's duty to defend in an underlying landlord-tenant action. (Dkt. Nos. 18, 19.) The Court heard oral argument on the motions on April 30, 2019.
Having considered the parties' written and oral arguments, and the admissible evidence submitted, and for the reasons set forth herein, the Court ORDERS as follows: (1) Conway's motion for partial summary judgment is GRANTED , and (2) Northfield's cross-motion for summary judgment is DENIED . The Court finds that the undisputed material facts show that there is a potential for coverage under the insurance policies at issue for claims raised in the underlying litigation. More specifically, the underlying action involves potential claims arising under Coverage A and Coverage B, and no relevant exclusions apply. Accordingly, Northfield has a duty to defend.
The instant complaint stems from a coverage dispute related to an action filed in the Superior Court for the State of California, County of San Francisco, captioned Supmitchotima v. Conway , Case No. CGC-18-564336. The complaint in the underlying action, filed February 14, 2018, concerns a property owned by Conway located at 3295 Mission Street in San Francisco. (Joint Appendix of Exhibits ("JA"), Ex. A ("Compl.") ¶¶ 6-7.) That complaint alleges, in pertinent part, as follows:
The complaint includes claims for, among other things, tortious interference with prospective economic relations and contract, breach of contract, negligence, and fraud. (Id. ¶¶ 22-74.)
On June 15, 2018, Conway filed a cross-complaint in the underlying action seeking, among other things, to have Supmitchotima removed from the property. (JA, Ex. F ("Cross-Compl.") ¶¶ 43-44.) The cross-complaint alleges that Supmitchotima told Conway that she had obtained all necessary permits to install a kitchen and bathroom on the property and had certified the residential space for use as a dwelling, all of which was false. (Id. ¶ 7.) The cross-complaint further alleges that Supmitchotima hired unlicensed individuals to perform repairs on the property without Conway's consent. (Id. ¶ 9.)1
Northfield issued two successive commercial general liability policies to Conway, with effective policy periods of August 26, 2016 through August 26, 2017, and August 26, 2017 through August 26, 2018. (JA, Exs. D and E (collectively, the "Policies").)2
"Coverage A" of the Policies provides coverage for "bodily injury and property damage liability." (JA, Ex. D at 21; JA, Ex. E at 21.)3 "Property damage," as defined in the Policies, includes "loss of use of tangible property that is not physically injured." (JA, Ex. D at 51; JA, Ex. E at 51.) The Policies provide that any such loss of use "shall be deemed to occur at the time of the ‘occurrence’ that caused it." (JA, Ex. D at 51; JA, Ex. E at 51.) "Occurrence," in turn, is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." (JA, Ex. D at 34; JA, Ex. E at 34.)
"Coverage B" provides coverage for "personal and advertising injury liability." (JA, Ex. D at 25; JA, Ex. E at 25.) "Personal and advertising injury" is defined in the Policies as any injury, other than bodily injury, that arises out of, among other things, "[t]he wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling[,] or premises that a person occupies, committed by or on behalf of its owner, landlord[,] or lessor." (JA, Ex. D at 34; JA, Ex. E at 34.)
In relevant part, the Policies contain the following exclusions from coverage:
(JA, Ex. D at 68; JA, Ex. E at 68.)
(JA, Ex. D at 42; JA, Ex. E at 42.)
The Policies also exclude from coverage "[p]roperty damage" to "[p]roperty [the insured] own[s], rent[s], or occup[ies]," as well as "[p]roperty damage" to "[t]hat particular part of real property on which you or any contractors or subcontractors working ... on your behalf are performing operations[.]" (JA, Ex. D at 24; JA, Ex. E at 24.)
The parties each have filed motions for summary judgment on the issue of whether Northfield has a duty to defend Conway. Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its own merits." Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two , 249 F.3d 1132, 1136 (9th Cir. 2001) (alteration and internal quotation marks omitted). Thus, "[t]he court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." Id. ( ). If, however, the cross-motions are before the court at the same time, the court must consider the evidence proffered by both sets of motions before ruling on either one. Riverside Two , 249 F.3d at 1135-36.
An "insurer has a duty to defend an insured if it becomes aware of, or if [a] third party lawsuit pleads, facts giving rise to the potential for coverage under the insuring agreement." Waller v. Truck Ins....
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