Hartford Fire Ins. Co. v. Superior Court

• Decision Date: 28 March 1983
• Citation: 142 Cal.App.3d 406,191 Cal.Rptr. 37
• Court: California Court of Appeals Court of Appeals
• Parties: , 39 A.L.R.4th 189 HARTFORD FIRE INSURANCE COMPANY, Hartford Accident and Indemnity Company, Petitioners, v. SUPERIOR COURT of California, COUNTY OF LOS ANGELES, Respondent. Joann TOBIN, individually and as administratrix of the Estate of Thomas F. Tobin, deceased, et al., Real Parties in Interest. Civ. 65697.

Page 37

191 Cal.Rptr. 37

142 Cal.App.3d 406, 39 A.L.R.4th 189

HARTFORD FIRE INSURANCE COMPANY, Hartford Accident and Indemnity Company, Petitioners, v. SUPERIOR COURT of California, COUNTY OF LOS ANGELES, Respondent Joann TOBIN, individually and as administratrix of the Estate of Thomas F. Tobin, deceased, et al., Real Parties in Interest.

Civ. 65697.

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

March 28, 1983.

Overton, Lyman & Prince, Laurence H. Schnabel and Kelley K. Beck, Los Angeles, for petitioners.

Steven W. Murray, Los Angeles, for Joann Tobin, real party in interest.

Cotkin, Collins, Kolts & Franscell, Raphael Cotkin, William D. Naeve and Georgette Herget, Los Angeles, for Unigard Mut. Ins. Co., real party in interest.

Stearns & Nelson and Vincent W. Heublein, Los Angeles, for Transamerica Ins. Co., real party in interest.

Kern, Wooley & Maloney and Richard F. Runkle, Los Angeles, for American Safety Equipment Corp., real party in interest.

Mendes & Mount and David S. Brown, Beverly Hills, for Piper Aircraft Corp., real party in interest.

Billips & Desimone, Santa Monica, for P. Dennis Keenan, real party in interest.

Magana, Cathcart, McCarthy & Pierry and Peter T. Cathcart, Los Angeles, for Jean Peterson and Thomas Carroll, real parties in interest.

No appearance for respondent.

DANIELSON, Associate Justice.

On June 22, 1982, Hartford Fire Insurance Company and Hartford Accident and Indemnity Company (hereafter Hartford or Hartford Fire or Hartford Accident) filed with this court a verified petition for writ of mandate, seeking to compel the superior court to set aside its ruling of June 11, 1982, which had determined that Joann Tobin, individually, and as personal representative of the estate of her husband Thomas Tobin, was entitled to a defense provided by Hartford. Hartford also sought to compel the superior court to grant its motion for summary judgment.

On July 16, 1982, we denied the petition "without prejudice to petitioner's right to contend that the insured[s] are not entitled to coverage under the policy." This order had reference to the fact that the writ petition sought to challenge the denial of Hartford's motion for summary judgment, and that there was, as yet, no final judgment in the action. (Cf. Aetna Casualty & Surety Co. v. Superior Court (1980) 114 Cal.App.3d 49, 54-55, 170 Cal.Rptr. 527.)

On September 30, 1982, our Supreme Court granted Hartford's petition for hearing and retransferred the case to this court with directions to issue an alternative writ, citing State Farm Fire & Cas. Co. v. Camera (1976) 63 Cal.App.3d 48, 133 Cal.Rptr. 600.)

Accordingly, on October 29, 1982, we issued our alternative writ of mandate ordering respondent court to vacate its order of June 11, 1982, denying Hartford's motion for summary judgment, and make a new and different order granting that motion, or to show cause why a peremptory writ should not issue. ¹

Joann Tobin, real party in interest, has opposed issuance of the peremptory writ.

Unigard Mutual Insurance Company, real party in interest, has also opposed issuance of the peremptory writ, ² as have Piper Aircraft Jean Peterson, Thomas Carroll, and Transamerica Insurance Company.

FACTS

On April 5, 1982, Joann Tobin, individually, and as personal representative of the estate of her deceased husband, Thomas F. Tobin, filed a complaint in the superior court for damages for breach of contract, breach of covenant of good faith and fair dealing, intentional infliction of emotional distress, negligence, and breach of statutory duty, against several insurers, namely, Unigard Mutual Insurance Company (hereafter Unigard), Transamerica Insurance Company (hereafter Transamerica), and Hartford.

The complaint alleged as follows: On July 24, 1977, at Lake Tahoe, California, Thomas Tobin was piloting a Piper aircraft while trying to take off, with four passengers. Joann Tobin was not in the aircraft. The plane crashed shortly after takeoff, killing Thomas Tobin and one passenger, and seriously injuring three passengers. Complaints for personal injuries and wrongful death were filed against Joann Tobin, individually, and as personal representative of the estate. All of the community property of Joann and Thomas Tobin was placed in probate at Thomas' death, and claims in the personal injury actions were made against that property. The surviving passengers and surviving relatives of the deceased passenger asserted claims against Piper Aircraft, El Monte Flight Service, Norman and Dixie Hueckel, and American Safety Equipment Corporation, as well as against Joann Tobin; and those defendants filed cross-complaints against Joann Tobin, seeking indemnity and equitable contribution. On February 17, 1982, judgment for El Monte Flight Service was entered against Joann Tobin. All of the actions were then pending against Joann Tobin in the superior court, as part of Coordinated Case Number 799.

Joann Tobin's complaint further alleged that she had tendered the claims made against her by third parties to the insurers, but that they had declined to settle or defend the cases. As to Hartford, her complaint alleged that Hartford Fire had issued a policy of general liability insurance, in the sum of $100,000, which included a promise to defend. A partial copy of the policy was attached to and incorporated in the complaint. Hartford Fire declined to defend the personal injury actions filed against Joann Tobin, denied coverage under the policy and refused to satisfy settlement demands or the judgment for El Monte Flight Service. Hartford Accident also issued a policy of insurance covering general liability, in the amount of $1 million, which included a promise to defend. A partial copy of that policy was also attached to and incorporated in the complaint. Hartford Accident refused to provide coverage or defense under that policy.

The Hartford Fire policy was a so-called homeowner's policy issued to Thomas and Joann Tobin.

Petitioner has not provided this court with a complete copy of the Hartford Fire policy, but the copy of certain policy pages, placed before the trial court with the complaint, shows the following terms:

"Coverage E--PERSONAL LIABILITY

"This Company agrees to pay on behalf of the Insured all sums which insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Company's liability has been exhausted by payment of judgments or settlements."

The policy provided the following exclusion:

"This policy does not apply:

"Under Coverage E--Personal Liability ...

"a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

"(1) any aircraft ..."

The Hartford Accident policy was a so-called "excess indemnity policy." Thomas F. Tobin was the named insured. The policy pages attached to the complaint reveal the following coverage and exclusion:

"Section A--Personal Liability"

"1. Coverage: The Company will indemnify the insured for ultimate net loss which the insured shall become legally obligated to pay, in excess of the applicable underlying (or retained) limit, because of personal injury or property damage occurring during the policy period; provided that: (Emphasis in original.)

"Exclusions--This insurance does not apply:

"....

"(d) to the ownership, maintenance, operation, use, loading or unloading of any aircraft owned or operated by the insured or chartered without crew by or on behalf of the insured; but this exclusion shall not apply to liability for personal injury to any employee of the insured arising out of and in the course of his employment by the insured;" (Emphasis in original.)

"2. Defense of Suits Not Covered by Other Insurance: The Company shall defend any suit seeking damages which are not payable on behalf of the insured under the terms of the underlying policies of insurance ... but which are payable under the terms of Section A1 [the section on coverage and exclusions]...." (Emphasis in original.)

Hartford answered the complaint. As an affirmative defense, Hartford alleged that neither the Hartford Fire nor the Hartford Accident policy created an obligation to defend or indemnify for the liabilities arising out of the air crash.

Joann Tobin moved the court for an order specifying certain issues to be without substantial controversy. Those issues were as follows:

"A. Against Unigard, Hartford, and Transamerica:

"1. Joann Tobin, as an individual and as an insured, is entitled to a defense against the damage action in the coordinated tort case.

"2. Joann Tobin, as administratrix, is entitled to a defense against the damage actions ... because of alleged negligent acts of Thomas F. Tobin, independent of those involving the aircraft.

"3. Joann Tobin, individually, as an insured, is the victim of a groundless, false and fraudulent lawsuit because any judgment rendered in the tort case is enforceable against her community property, as a proximate result of her 'act' of marrying Thomas F. Tobin, not of using an aircraft."

In support of her motion, Joann Tobin attached copies of her deposition taken in connection with the coordinated personal injury actions. In her deposition of June 15, 1981, she said that she recalled seeing her husband at home making flight preparations and plans before the accident flight.

Hartford noticed a motion for summary judgment, together with its...