Kerns v. Cse Ins. Group

Decision Date19 February 2003
Docket NumberNo. A092076.,A092076.
CourtCalifornia Court of Appeals Court of Appeals
PartiesDarlene KERNS, Plaintiff and Appellant, v. CSE INSURANCE GROUP, Defendant and Respondent.

Semansky & Jenny and Scott E. Jenny, Law Office of Scott E. Jenny and Scott E. Jenny, Martinez, for Plaintiff and Appellant.

Greines, Martin, Stein & Richland LLP and Marc J. Poster, Los Angeles, Prestholt & Fidone, LLP, Los Angeles, and Marjorie E. Motooka for Defendant and Respondent.


Darlene Kerns appeals from summary judgment entered in favor of respondent CSE Insurance Group upon the latter's motion pursuant to Code of Civil Procedure section 437c1 and the denial of her cross-motion for summary judgment. Appellant, the assignee of respondent's insureds, had filed suit to enforce respondent's alleged duty to defend its insureds in a previously-settled personal injury lawsuit. At issue on this appeal are the following contentions: (a) the trial court acted in excess of its jurisdiction by entertaining and ruling on respondent's motion for summary judgment when a different judge had previously denied the identical motion and the renewed motion was in violation of the controlling procedural requirements set forth in section 1008; (b) the trial court erred in determining as a matter of law that there was no potential for coverage under respondent's policy and thus no duty to defend the insureds, appellant's assignors; and (c) the undisputed facts demonstrate that appellant herself was entitled to summary judgment on the issue of respondent's duty to defend.

On the procedural and factual record presented, we conclude that the trial court exceeded its jurisdiction by entertaining respondent's renewed motion for summary judgment, because in so doing it violated the exclusive and controlling procedural prerequisites set by section 1008 for the reconsideration or renewal of a previously denied motion. The trial court left unaddressed and undecided important triable issues of material fact on the basis of which summary judgment had previously been denied. For these reasons, we must reverse.


On February 12, 1997, respondent issued a personal homeowners policy (the Policy) to C. M., effective for the policy period from January 28, 1997, to January 28, 1998. In the portion dealing with coverage for personal liability, the Policy specified that respondent would defend and indemnify claims made against the insured on account of bodily injury or property damage "caused by an occurrence."2 The Policy specifically defined "occurrence" as "an accident, including continuous and repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: [¶] a. bodily injury; or [¶] b. property damage." The specified limit of liability on coverage "for all damages resulting from any one occurrence" was $100,000, "regardless of the number of insureds, claims made or persons injured." Among the standard endorsements expressly incorporated in the Policy were exclusions from liability coverage for (a) any bodily injury "which is expected or intended by an insured or which is the forseeable [sic ] result of an act or ommission [sic] intended by an insured"; and "any illegal act commited [sic] by or at the direction of an insured."3

In the early morning hours of March 1, 1997, C. M.'s daughter, 16-year-old D. M, was arrested for vandalizing a house with a crowbar. When searched by a Contra Costa County deputy sheriff, she was found in possession of two hypodermic syringes. She was released to the custody of her father. Approximately two hours later, she broke a window of appellant's house and entered. According to D.'s own deposition testimony, she had been using "[c]rank," or methamphetamine, for at least two months, and found it "addicting." At the time of the incident she was feeling "temporarily schiz," "paranoid," and was "hearing voices," as she had for some "[t]wo months or so." Even when she made a conscious attempt to stop using crank, she continued to hear voices and have visual and auditory hallucinations. Appellant "had some plants and stuff hanging." When D. "heard" the hanging plants, "[s]omething triggered" her, causing her to break into appellant's house, grab a knife from the kitchen, go into appellant's room, and stab her. D. had never met or known appellant before this incident. D. did not know whom she was attacking, and actually thought she was attacking "[a] man." She "[n]ever intended to hurt" appellant "if I would have known it was a woman," although she "intended to injure the person who was putting the symbols [the hanging plants] up in the front porch. That's what I intended to do."

D. was arrested outside appellant's home. She told police that she had recently resumed her heavy methamphetamine use, and was feeling "paranoid" before the incident, as though people were following her. She entered appellant's house because the hanging plants reminded her of a man who had sexually attacked her. A doctor who examined her at juvenile hall opined that she "may be psychotic." D. entered a plea of no contest to attempted second degree murder with personal use of a deadly weapon and infliction of great bodily injury. She was sentenced to a California Youth Authority facility.

In September 1997, appellant filed a complaint against D. and her parents (the M. family), alleging four causes of action and seeking damages for assault, battery, negligence and negligent supervision.4 In the first cause of action, for assault, appellant alleged that D. "placed [her] in fear for her personal safety" by threatening her with bodily injury with a knife, and that "[i]n doing the acts as alleged above, [D.] intended to cause or place [appellant] in apprehension of a harmful and offense [sic ] contact with [appellant's] person," as a result of which appellant suffered injuries and damages. Each of the three subsequent causes of action incorporated by reference and thereby realleged these particular allegations of intentionality on D.'s part "the same as if [they] had been expressly repeated" in the other causes of action.

Appellant also made additional specific allegations that D.'s behavior was intentional in the second cause of action, for battery. Thus, in count two appellant alleged that D. stabbed appellant multiple times in the area of appellant's head and shoulders; "[i]n doing the acts as alleged above, defenants [sic], and each of them, acted deliberately and with the intent to make a contact with [appellant's] person; and "[t]he aforementioned conduct of [D.] ... was willfull [sic ] and malicious and was intended to oppress and cause injury to [appellant]." In the third cause of action, appellant realleged the earlier allegations that D. acted "deliberately and with the intent to make ... contact" with appellant's person, adding allegations that in doing so she "negligently injured" appellant and "negligently consumed drugs, alcohol, medication, or failed to consume medication, such that she was unable to "control her own behavior." Finally, in the fourth cause of action against D.'s parents for negligent supervision, appellant again realleged the earlier allegations that D.'s acts were intentional, and added specific allegations that her parents were "liable for the aforementioned intentional and negligent acts ... based upon California Civil Code Section 1714.1."5

CM. notified respondent of appellant's claim against him and D. on March 28, 1997. On April 23, 1997, respondent sent Mr. M. a letter reserving its rights under the various applicable endorsements of the Policy, including the exclusions for bodily injury "expected or intended" by an insured or which is the foreseeable result of an act or omission intended by an insured, and for "any illegal act committed by or at the direction of an insured." After an investigation, respondent informed its insured by letter dated October 8, 1997, that it would not defend or indemnify appellant's claims and lawsuit. Respondent's letter stated that it had "determined" that "the actions of D. were willful, intentional, malicious and illegal," and therefore excluded by the provisions of the Policy and by Insurance Code section 533.6 On November 13, 1997, through his attorney, Mr. M. asked respondent to reconsider its decision not to defend. Respondent thereafter obtained the independent legal opinion of outside coverage counsel that there was no coverage or duty to defend any of the insureds under the Policy. On this basis, respondent again denied Mr. M.'s claim by letter dated December 11,1997.

Appellant's case against the M. family proceeded to settlement. Mr. M.'s attorney notified respondent in writing of an impending settlement conference scheduled for April 9, 1998, and informed respondent that appellant had proposed a stipulated settlement judgment in the amount of $250,000, with a covenant not to execute against the M. family in exchange for an assignment of their rights against respondent. Mr. M.'s attorney stated that he would recommend the M. family accept the offer, with a reservation of their right to seek attorney fees and costs from respondent. On the day of the settlement conference, appellant settled with the M. family without a trial on the merits, on the terms outlined in the letter of Mr. M.'s attorney to respondent. Thereafter, the trial court entered judgment in favor of appellant and against D. and Mr. and Mrs. M. in the amount of $250,000, pursuant to appellant's covenant not to execute on or enforce the judgment and the concurrent assignment by the M. family of their rights against respondent, with the exception of their rights to attorney's fees incurred as a result of respondent's failure to defend them.

On December 1, 1998, appellant filed this action against respondent for declaratory relief, breach of contract and breach of the implied...

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