Remmer v. Glens Falls Indem. Co.

• Decision Date: 21 March 1956
• Citation: 57 A.L.R.2d 1379,295 P.2d 19,140 Cal.App.2d 84
• Parties: , 57 A.L.R.2d 1379 Elmer F. REMMER and Helen L. Remmer, Plaintiffs and Appellants, v. GLENS FALLS INDEMNITY COMPANY, a Corporation, Defendant and Respondent. Civ. 16532.
• Court: California Court of Appeals Court of Appeals

Page 19

295 P.2d 19

140 Cal.App.2d 84, 57 A.L.R.2d 1379

Elmer F. REMMER and Helen L. Remmer, Plaintiffs and Appellants, v. GLENS FALLS INDEMNITY COMPANY, a Corporation, Defendant and Respondent.

Civ. 16532.

District Court of Appeal, First District, Division 1, California.

March 21, 1956.

Spurgeon Avakian, Oakland, for appellants.

Bronson, Bronson & McKinnon, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiffs filed this action against the Glens Falls Indemnity Company claiming that they had incurred a liability for which the company was required to indemnify them under the terms of a policy issued by defendant. The trial court found that the damages involved occurred after the policy was cancelled, and for that reason were not covered by the policy. From a judgment for the defendant, plaintiffs appeal.

Plaintiffs own a lot in Contra Costa County. A Mr. and Mrs. Morris own a lot contiguous to that of plaintiffs on the downhill side of plaintiffs' lot. During the year 1947 the plaintiffs graded and filled portions of their lot. On January 21, 1952, large quantities of earth and rock slid from the fill on plaintiffs' property onto the property of the Morrises. The plaintiffs became obligated to reimburse the Morrises for part of that damage. The question presented is whether that loss was covered by the policy in question.

That policy, a comprehensive personal liability policy, was issued to the plaintiffs on October 26, 1945, and was for a three-year-period. The policy was cancelled on January 15, 1948, and has never been renewed. Thus, the policy was in effect when plaintiffs, in 1947, graded and filled their property, but was not in effect in January of 1952 when the slide occurred that damaged the property of the Morrises. The policy contained the following agreements on the part of defendant:

'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law * * * for damages because of injury to or destrution of property, including the loss of use thereof.'

It also contained the agreement of defendant, insofar as 'such insurance as is afforded by the other terms of this policy,' to

'(a) defend in his name and behalf any suit against the insured alleging such injury, * * * or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * *

'(b) pay * * * all costs taxed against the insured in any such suit, * * * all interest accruing after entry of judgment * * *'

Another provision of the policy was to the effect that 'This policy applies only to occurrences during the policy period.' The term 'occurrence' is defined in the policy as 'an accident, or a continuous or repeated exposure to conditions, which results in injury during the policy period, provided the injury is accidentally caused. All damages arising out of such exposure to substantially the same general conditions shall be considered as arising out of one occurrence.'

After the slide had occurred in January of 1952, the Morrises, on April 18, 1952, brought suit against plaintiffs. Plaintiffs notified defendant of the filing of this suit, and urged that, under the policy, they were entitled to have defendant undertake plaintiffs' defense of that suit. The defendant refused such defense on the ground that the claims made by the Morrises were not based on any 'occurrence' happening while the policy was in effect.

The complaint in Morris v. Remmer alleged that the Remmers:

'On a date unknown * * * but prior to the 21st day of January, 1952, * * * negligently and carelessly caused the natural contours of Lot 8 to be altered and changed, * * * and negligently and carelessly placed * * * [many hundreds of tons of earth and rock] on the hillside at a point on or near where the above described natural canyon or gully discharged from Lot 8 to Lot 9, without securing the same, and without taking reasonable precautions, or any precautions or steps to prevent its movement or encroachment onto or upon Lots 9 or 60, with the result that said canyon or gully became filled and blocked, and the aforesaid mass of earth and rocks became perilously poised on the hillside above both Lots 9 and 60; ever since the date upon which said changes and alterations were so negligently and carelessly caused by defendants, as aforesaid, the defendants * * * continued to negligently and carelessly maintain the said Lot 8 in the manner and condition alleged.

'On or about the 21st day of January, 1952, * * * an unknown number of tons of rock and earth slid from the fill caused by defendants, * * * and then and there followed down * * * the above mentioned natural canyon or gully, through Lot 9, and onto and over Lot 60, * * * thereby damaging and injuring plaintiffs' * * * [property]; on the date hereof said fill has not yet stopped moving, but remains in a continuous process of sliding * * * on to plaintiffs' real property * * *' In a second count the Morrises averred a cause of action for trespass, while a third cause of action, characterizing the fill as a nuisance, was for an injunction. Both the second and third causes of action incorporated in substance the above quoted allegations.

In the Morris v. Remmer case the trial court found that:

'During the early months of the year 1947 the defendants [plaintiffs herein], * * * caused the contours of the Remmer property to be altered in the manner and with the result set forth in * * * [the] complaint, excepting, only, that the Court finds that said work and alterations were not executed in a negligent manner;

'Defendants * * * [the Remmers] continued to maintain their real property in the condition above described, from the early months of the year 1947, throughout the balance of the period ending January 21, 1952, culminating in a slide which occurred on or about said late; and that except for the portion of fill which then gave away and slid * * * have continued to maintain the same thereafter; and * * * [that such] is in danger or further movement and in danger of further engulfing * * * [the Morris] property * * *.

'By the alteration of their said property * * *, defendants * * * [the Remmers] created on their said property a condition which, continuously during all the time since then, has constituted and now does constitute a nuisance in that it has threatened and continues to threaten injury to plaintiffs' said property.'

In the Morris v. Remmer action the Morrises were not entitled to recover from the Remmers for the physical damages caused to their property by the slide, which amounted to $5,000, because the Morrises had received that sum from the contractor who had done the grading and filling of plaintiffs' property in return for a covenant not to sue the contractor, and were, of course, not entitled to a double recovery....