Fragomeno v. Insurance Co. of the West

• Citation: 255 Cal.Rptr. 111,207 Cal.App.3d 822
• Decision Date: 31 January 1989
• Docket Number: No. B033011,B033011
• Court: California Court of Appeals
• Parties: Domenico FRAGOMENO and Adriana Fragomeno, Plaintiffs and Appellants, v. INSURANCE COMPANY OF THE WEST, Defendant and Respondent.

Page 111

255 Cal.Rptr. 111

207 Cal.App.3d 822

Domenico FRAGOMENO and Adriana Fragomeno, Plaintiffs and Appellants, v. INSURANCE COMPANY OF THE WEST, Defendant and Respondent.

No. B033011.

Court of Appeal, Second District, Division 7, California.

Jan. 31, 1989.

Review Denied April 19, 1989.

Bleiweis, Belshaw, Melka & Wall, Jay S. Belshaw, Torrance, for plaintiffs and appellants

Chapman & Glucksman, Arthur J. Chapman, Santa Monica, Catherine M. Adams, Los Angeles, for defendant and respondent.

FRED WOODS, Associate Justice.

Appellants Domenico and Adriana Fragomeno (the Fragomenos) appeal from the summary judgment in favor of respondent Insurance Company of the West (ICW) in an action involving causes of action for declaratory relief, breach of contract and breach of the covenant of good faith and fair dealing. The trial court concluded that the personal injury endorsement of the Fragomenos' insurance policy did not provide coverage for the unlawful detainer action brought against the Fragomenos by their lessor and entered summary judgment for respondent ICW.

SCOPE OF REVIEW OF GRANT OF MOTION FOR SUMMARY JUDGMENT

A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact. (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist and not to decide the merits of the issues themselves. (Walsh v. Walsh (1941) 18 Cal.2d 439, 441, 116 P.2d 62.)

Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134.) It should therefore be used with caution, so that it does not become a substitute for trial. (Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97, 443 P.2d 561.) The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 437, 74 Cal.Rptr. 895, 450 P.2d 271.)

A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. (Stationers Corp. v. Dun & Bradstreet, supra, 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. (Ibid.) We shall examine the grant of summary judgment in this case with the foregoing standard in mind.

ISSUE ON APPEAL

In this appeal, we consider whether a lessee's alleged unlawful possession of the leased premises constitutes an "invasion of the right of private occupancy" within the meaning of the lessee's insurance policy as a matter of law so as to require ICW to defend and indemnify the lessee for any judgment which might be rendered against the lessee as a result of the detainer action.

FACTUAL SYNOPSIS

On December 26, 1984, the Fragomenos entered into an agreement with E & L General Partnership (E & L) to lease certain premises for the operation of a dry cleaning business. On August 14, 1985, ICW issued to the Fragomenos a "Comprehensive Policy for Dry Cleaners and Laundry Owners" (the policy). The policy contained a "Personal Injury Liability Insurance Endorsement." This endorsement provided: "The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury (herein called 'personal injury') sustained by any person or organization and arising out of one or more of the following offenses:

"Group A--false arrest, detention or imprisonment or malicious prosecution.

"Group B--the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual's right of privacy except publications or utterances in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the named insured.

"Group C--wrongful entry or eviction, or other invasion of the right of private occupancy."

The endorsement also provided: "When used in reference to this insurance 'damages' means only those damages which are payable because of personal injury arising out of an offense to which this insurance applies."

On April 15, 1986, E & L filed an unlawful detainer action against the Fragomenos. ¹ On June 18, 1986, E & L filed a second unlawful detainer action against the Fragomenos alleging the Fragomenos breached their lease agreement by, inter alia, operating their cleaning store beyond permitted load capacity, operating a shoe and handbag repair service, and cleaning The Fragomenos tendered the defense of these two actions to ICW. ICW subsequently denied coverage for both unlawful detainer actions. The Fragomenos then commenced an action against ICW for declaratory relief, breach of contract and breach of the covenant of good faith and fair dealing.

clothing brought in from other outlets. E & L sought recovery of the premises, damages for reasonable rental value of $189.63 per day, costs, attorney's fees and punitive damages.

ICW moved for summary judgment arguing there was no duty to defend or indemnify the Fragomenos under the policy. The Fragomenos brought a cross-motion for summary adjudication on their declaratory relief action. In their cross-motion, the Fragomenos argued that the basis for E & L's unlawful detainer actions was the damage to its property allegedly caused from excessive heat emanating from the Fragomeno's business.

The trial court granted ICW's motion for summary judgment and denied the Fragomeno's motion for summary adjudication. The Fragomenos timely appealed from the summary judgment.

DISCUSSION

I. THE TRIAL COURT DID NOT ERR IN GRANTING ICW'S SUMMARY JUDGMENT MOTION.

A. The Standard of Review.

The facts here are undisputed. Accordingly, we are only required to review the trial court's construction of the policy. Since the interpretation of an insurance policy is an issue of law, " 'it is the duty of the appellate court ... to make its own independent determination of the meaning of the language used in the contract under consideration.' " (Bareno v. Employers Life Ins. Co. (1972) 7 Cal.3d 875, 881, 103 Cal.Rptr. 865, 500 P.2d 889.)

Our construction of the policy is governed by certain, well-settled principles. The words used in an insurance policy are to be construed according to their plain meaning and the reasonable expectations of the insured. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807-808, 180 Cal.Rptr. 628, 640 P.2d 764.) Therefore, the insurance policy is construed from the perspective of a reasonable lay person. (Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 115, 95 Cal.Rptr. 513, 485 P.2d 1129.) Any ambiguity must be resolved in favor of the insured. (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 464, 113 Cal.Rptr. 711, 521 P.2d 1103.) However, courts should not indulge in strained constructions to find coverage. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 912, 226 Cal.Rptr. 558, 718 P.2d 920.)

B. The Unlawful Detainer Action Does Not Constitute An Invasion Of The "Right To Private Occupancy" Within The Meaning of the Policy.

ICW is correct in suggesting that the policy only covers tort, as opposed to contract, liability. The Fragomenos concede to this position. The policy provides that ICW "will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages...." Courts have construed this language to limit coverage to tort liability only. (See Fireman's Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 997-998, 216 Cal.Rptr. 796; International Surplus Lines Ins. Co. v. Devonshire Coverage Corp. (1979) 93 Cal.App.3d 601, 610-611, 155 Cal.Rptr. 870.)

Accordingly, ICW is obligated to defend and indemnify the Fragomenos for any act constituting an invasion of the right of private occupancy which incurs tort liability as opposed to contract liability.

The facts are undisputed that the Fragomenos took possession of the subject property in accordance with a written lease. It is well settled in California that a written lease is a form of contractual arrangement between parties to the lease pertaining to property as well as constituting a conveyance of property. (Parker v. Superior Court (1970) 9 Cal.App.3d 397, 400, 88 Cal.Rptr. 352.) Accordingly, any In this instance the landlord used the summary device of an unlawful detainer action to dispossess the Fragomenos of the premises, as a result of an alleged breach of the contractual provisions of the lease other than for failure to pay rent. It is undisputed that the events giving rise to the action in the trial court occurred during the unexpired term of the lease.

breach of the lease will give rise to contractual damages in accordance with the provisions of the lease, usually in the form of rents when the breach is for failure to pay rent.

Paramount to our considerations is whether or not the unlawful detainer action sounds in contract or in tort. Several decisions in California have contained dictum which...