Premier Ins. Co. v. Welch
Decision Date | 10 March 1983 |
Docket Number | No. 50794,50794 |
Citation | 140 Cal.App.3d 720,189 Cal.Rptr. 657 |
Court | California Court of Appeals Court of Appeals |
Parties | PREMIER INSURANCE COMPANY, Plaintiff and Respondent, v. William E. WELCH, et al., Defendants and Appellants. A011905. 1 Civil |
Stephen McReavy, Linda E. Klamm, Hall, Henry, Oliver & McReavy, P.C., San Francisco, for defendants and appellants.
Raymond Coates, Low Ball & Lynch, Menlo Park, for plaintiff and respondent.
Defendants William E. Welch and Ann B. Welch (appellants or Welchs) appeal from a judgment rendered in favor of plaintiff Premier Insurance Company (respondent) in an action brought for declaration of rights under an "all risk" home-owners insurance policy.
The case was decided upon a stipulation of facts which reads as follows. 1
The homeowners insurance policy issued to appellants, which was in effect on or about January 15, 1978, the time of the incident, read in relevant part as follows:
Based upon the above-stated stipulated facts and the cited portions of the insurance policy the trial court, sitting without a jury, concluded that the efficient cause of the landslide which occasioned the loss to the property was the heavy rainfall rather than the damaged subdrain. In accordance therewith, the trial court held that the loss was excluded under the insurance policy and entered judgment in favor of respondent.
Appellants argue that the ruling of the trial court is erroneous for two reasons. One, contrary to the trial court's conclusion, the efficient or moving cause of the loss here incurred was the negligently maintained drainage system, a covered risk, rather the excepted peril of rainfall and landslide and as a consequence the insurer was liable under the "all risk" insurance policy (Sabella v. Wisler (1963) 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889; Sauer v. General Ins. Co. (1964) 225 Cal.App.2d 275, 37 Cal.Rptr. 303; Gillis v. Sun Ins. Office, Ltd. (1965) 238 Cal.App.2d 408, 47 Cal.Rptr. 868.) Two, even if the damaged subdrain was to be deemed only a concurrent proximate cause of the incident, respondent was still responsible under the prevailing case law. (State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123; Safeco Ins. Co. of America v. Guyton (9th Cir.1982) 692 F.2d 551.) For the reasons which ensue we agree with appellants and reverse the judgment.
Before discussing appellants' arguments on the merit, we note that where, as here, the facts on appeal are settled and not in dispute, the determination of proximate cause is not binding on the reviewing court. In such an instance, the proximate causation becomes a question of law which is subject to the appellate court's independent determination. (Sabella v. Wisler, supra, 59 Cal.2d at p. 32, 27 Cal.Rptr. 689, 377 P.2d 889; Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720, 726, 344 P.2d 307; Sauer v. General Ins. Co., supra, 225 Cal.App.2d 275 at p. 279, 37 Cal.Rptr. 303.) As another preliminary matter, it also bears emphasis that an "all risk" insurance policy, the type of policy issued to appellants, provides coverage for negligently caused damages unless the policy contains a specific provision expressly excluding the loss or losses thusly incurred (Associated Engineers, Inc. v. American Nat. Fire Ins. Co. (N.D.Cal.1959) 175 F.Supp. 352, 353, 88 A.L.R.2d 1122, 1125.) With these preliminary remarks in mind we now proceed to analyze and discuss appellants' contentions on the merit.
Briefly restated, the first issue revolves around a determination whether the efficient cause of loss was the negligently damaged subdrain which was covered under the all risk policy, or whether the loss to the dwelling occurred due to the heavy rainfall causing a number of conditions (flood, surface water; water backing up through sewers or drains; water accumulating below the surface or ground which exerts pressure on or flows, seeps or leaks through the foundations, walls, basement, floors or through openings in the foundations, walls or floors; or water causing landslide, mudflow, earth sinking, rising or shifting) which were exempted under the explicit provisions of the policy.
We start our discussion with the settled principle that where, as here, the loss occurs through a concurrence of covered and uncovered risks, the insurer's liability under the policy depends on whether the efficient cause of the loss (that is the cause that sets others in motion) is a covered peril. If it is, the insurer will be held liable even though other exempted causes also contribute to the loss. As stated in Sabella v. Wisler, supra, 59 Cal.2d 21, 31-32, 27 Cal.Rptr. 689, 377 P.2d 889: " '[I]n determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause--the one that sets others in motion--is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.' " (See also State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d 94, 104, fn. 10, 109 Cal.Rptr. 811, 514 P.2d 123: 6 Couch, Insurance (1930) § 1466.)
In the instant case, the causal sequence leading up to the loss of the appellants' house began with the negligent installation of the sewer line in 1972. This damaged the subdrain underlying appellants' property by impeding its capacity to release subsurface waters. Although the damage created no problem for several years, during the winter of 1977/1978 the drainage system was apparently unable to accommodate the unusually large amount of percolating rainwater. As a result, the fill became saturated, causing the movement which damaged appellants' house. While it is true that the heavy rainfall was the first link in the causal sequence, the immediate or proximate cause of loss was the damage to the drain which set in motion the chain of events leading to the...
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...Co. v. College Utilities Corp., 561 P.2d 1211 (Alaska 1977) (policyholder negligence). California: Premier Insurance Co. v. Welch, 189 Cal. Rptr. 657 (Cal. App. 1983) (policyholder negligence). Illinois: Triple-X Chemical Labs, Inc. v. Great American Insurance Co., 370 N.E.2d 70 (Ill. App. ......
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