North Bay Schools Ins. Authority v. Industrial Indemnity Co., A054209

• Decision Date: 05 June 1992
• Docket Number: No. A054209,A054209
• Citation: 10 Cal.Rptr.2d 88,6 Cal.App.4th 1741
• Court: California Court of Appeals Court of Appeals
• Parties: , 76 Ed. Law Rep. 156 NORTH BAY SCHOOLS INSURANCE AUTHORITY, Plaintiff and Appellant, v. INDUSTRIAL INDEMNITY COMPANY et al., Defendants and Respondents.

Page 88

10 Cal.Rptr.2d 88

6 Cal.App.4th 1741, 76 Ed. Law Rep. 156

NORTH BAY SCHOOLS INSURANCE AUTHORITY, Plaintiff and Appellant, v. INDUSTRIAL INDEMNITY COMPANY et al., Defendants and Respondents.

No. A054209.

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

June 5, 1992.

Robin Leslie Stewart, Jeffrey M. Starsky, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, for plaintiff and appellant.

Kent J. Clancy, Andrew B. Downs, Derby, Cook, Quinby & Tweedt, San Francisco, for defendants and respondents.

WERDEGAR, Associate Justice.

North Bay Schools Insurance Authority (North Bay) appeals from a judgment entered in favor of Industrial Indemnity Company and California Insurance Company (Insurers) following cross-motions for summary judgment. The question presented is whether acts of vandalism and arson committed by several people out of the public view may collectively be considered a "riot" for purposes of an insurance policy which employs, but does not define, that term. We conclude they may not; we therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of this controversy are not disputed. On the afternoon and Charles Ware declared that about 4 p.m. he and three companions went to Loma Vista Elementary School (Loma Vista). They broke a window, and one of the group climbed through to open the door for the others. They then rifled through the contents of a storage room and set several fires in the room. The fire was reported to the fire department at 4:10 p.m. The four then went to Solano Junior High School (Solano Junior), gained entry by breaking a window, and "trashed" two classrooms.

evening of January 3, 1988, several young people broke into buildings on two neighboring school campuses in the Vallejo Unified School District, ransacked them, and set fire to them. The schools are located approximately two blocks from each other.

After leaving Solano Junior, Ware parted company with his three companions. About 6 p.m. he ran into two other friends and told them about his earlier activities. The three youths went to Ware's house for a time, then to Solano Junior. They reentered the classrooms Ware had vandalized earlier, did further damage, then set several fires "in order to destroy fingerprint evidence of our presence there." This second fire was reported at 8:07 p.m.

The three, joined by one of the participants in the earlier activities, went back to Solano Junior a short while later, but police personnel refused them entrance, and they left. They then went to Loma Vista, where one of the new vandals knew the combination to a staff lounge. They ransacked the lounge and set fires in it before leaving. The third fire alarm was at 9:18 p.m.

Ryan Wells declared he participated in the later rounds of vandalism and arson at Solano Junior and Loma Vista. Fires at both schools, he stated, were set in order to "get rid of the evidence" of their vandalism.

The Insurers' "California School Package Policy" insures North Bay and its members, such as Vallejo Unified School District, against certain first-party losses to school district property, among other things. The policy provides property coverage of more than $300,000,000 per location, per loss occurrence, subject to a self-insured retention of $100,000 each occurrence. The policy provides in relevant part:

"D. SELF-INSURED RETENTION.

"1. The Company shall be liable in each and every loss occurrence irrespective of the number and kinds of risks involved only for the excess over and above an initial net loss to the Insured of the amount stated as the Self-Insured Retention in the Declarations.

......

"3. For the purpose of this Section, the following terms are defined and limited as follows:

......

"b. LOSS OCCURRENCE shall mean a single event which causes damage or destruction of insured property by a peril or combination of perils insured against. When the term applies to loss or losses from windstorm, hail, riot, riot attending a strike or civil commotion, it shall be held to include those losses occurring or commencing during a period of 72 consecutive hours. When filing proof of loss, the Insured may elect the moment which the 72-hour period shall be deemed to have commenced." (Emphasis added.)

North Bay demanded the Insurers pay for all property damage to the schools in excess of $100,000. The Insurers rejected North Bay's demand on the ground that the claims involved three separate loss occurrences, thus triggering three separate self-insured retentions of $100,000 per loss occurrence for a total $300,000 self-insured retention.

North Bay filed suit for breach of contract and declaratory relief. It took the position that the actions of the young people in trashing and setting fire to the school buildings constituted a "riot" under the terms of the policy. The Insurers, and subsequently the trial court, disagreed. This appeal followed.

DISCUSSION

Summary judgment is proper if there is no triable issue of material fact and the moving party is entitled to judgment as a The sole dispute in the present case is the meaning of the word "riot," which is undefined in the insurance policy. ¹ The rules of interpretation of insurance contracts are settled. "Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ.Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The 'clear and explicit' meaning of these provisions, interpreted in their 'ordinary and popular sense,' unless 'used by the parties in a technical sense or a special meaning is given to them by usage' (id., § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. [Citations.]" (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822, 274 Cal.Rptr. 820, 799 P.2d 1253.)

matter of law. (Code Civ.Proc., § 437c, subd. (c).) Since the construction of an insurance policy is a matter of law where the underlying facts are not in dispute (State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100, 109 Cal.Rptr. 811, 514 P.2d 123; Northbrook Excess & Surplus Ins. Co. v. Coastal Rescue Systems Corp. (1986) 182 Cal.App.3d 763, 767, 227 Cal.Rptr. 639), the appellate court conducts an independent review. (Mancuso v. Southern Cal. Edison Co. (1991) 232 Cal.App.3d 88, 95, 283 Cal.Rptr. 300; Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.)

An ambiguity exists when the written language of an instrument is susceptible of two or more interpretations. (Estate of Russell (1968) 69 Cal.2d 200, 211, 70 Cal.Rptr. 561, 444 P.2d 353.) The question of ambiguity is one of law. (Evid.Code, § 310, subd. (a); Equitable Life Assurance Society v. Berry (1989) 212 Cal.App.3d 832, 840, 260 Cal.Rptr. 819.) Any ambiguity in an insurance policy is to be resolved against the insurer in favor of coverage. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807, 180 Cal.Rptr. 628, 640 P.2d 764.) Courts, however, "will not adopt a strained or absurd interpretation in order to create an ambiguity where none exists." (Ibid.)

Neither party argues that "riot" is ambiguous, and, insofar as relevant here, we find the term as understood by the layman to be unambiguous. ² The commonly understood meaning of the term, as discussed hereafter, includes public disturbance or tumult as an essential element. Vandalism, arson or other such acts, destructive as they may be, do not constitute a riot if they are conducted away from public view with the intent they remain unobserved.

The two dictionary definitions of "riot" that could apply to this case are: "1. a noisy, violent public disorder caused by a group or crowd of persons, ... 2. Law. a disturbance of the public peace by three or more persons acting together in a disrupting and tumultuous manner in carrying out their private purposes." (The Random House Dict. (1973) pp. 1235-1236, italics in original.) ³ Both these definitions connote The second dictionary definition cited above reflects the common law definition of criminal riot. One court, discussing an issue of civil statutory liability, reviewed the various formulations of the common law rule and distilled the following definition: "a tumultuous disturbance of the peace by a group of three or more persons having a common purpose who act in concert to accomplish their purpose through force or violence." (A & B Auto Stores of Jones St., Inc. v. City of Newark (1969) 106 N.J.Super. 491, 256 A.2d 110, 116 mod. (1971) 59 N.J. 5, 279 A.2d 693, 700 [modification added elements of large numbers of participants and public terror].) Similarly, a federal court determined that the following definition, included in an insurance contract, accorded with the common law concept: "any tumultuous disturbance of the public peace by three or more persons mutually assisting one another, or otherwise acting in concert, in the execution of a common purpose by the unlawful use of force and violence resulting in property damage of any kind." (Providence Washington Insurance Company v. Lynn (1st Cir.1974) 492 F.2d 979, 982.) Penal Code section 404, cited by North Bay below, is not materially different; it too requires force or violence "disturbing the public peace." ⁴

activity that is done in public and before witnesses; they do not include conduct that is surreptitious. The same is true of the dictionary definition North Bay cited below in its motion for summary judgment: "A violent public disorder; specifically: a tumultuous disturbance of the public peace by three or more persons assembled together and acting with a common intent." (Webster's Ninth New Collegiate Dict. (1986) p. 1017.)

Consequently, although the common law term denoted a crime, the common law meaning has...