Royal Globe Ins. Co. v. Whitaker
Decision Date | 23 May 1986 |
Court | California Court of Appeals Court of Appeals |
Parties | ROYAL GLOBE INSURANCE CO., Plaintiff and Respondent, v. Susan E. WHITAKER and Larry Elder, Defendants and Appellants. Civ. 24491. |
Weintraub, Genshlea, Hardy, Erich & Brown and William A. Wilson, Sacramento, for plaintiff and respondent.
*
This is an appeal from a trial court's ruling in a declaratory judgment that the respondent, Royal Globe Insurance Company, owed no duty to defend its insured in an underlying action for fraudulent inducement and breach of contract. We shall affirm.
The lower court's description of the "abbreviated and skeletal nature of the trial in this case" may be something of an understatement. It was submitted on the following stipulated facts.
Royal Globe issued a comprehensive business insurance policy to Jerry L. Knighten Construction Co. ("Knighten") in 1979. In the general liability schedule of the policy, the basic coverage was described as "[t]he company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of [p ] A. bodily injury or [p ] B. property damage [p ] to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damages, even if the allegations are groundless, false, or fraudulent...." (Emphasis added.) In the general provisions applying to the general liability schedule, "occurrence" was defined as meaning "an accident ... which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured, ..."
The construction of the policy before us is one of law because it is based on stipulated evidence and the terms of the insurance contract. We thus are not bound by the trial court's interpretation and it is our duty ultimately to resolve the question under the applicable principles of law. (Economy Lumber Co. v. Insurance Co. of North America (1984) 157 Cal.App.3d 641, 645, 204 Cal.Rptr. 135.)
In Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168, the basic coverage in the contract before the court made "two wide promises:" to pay for all damages for bodily injury for which the insured was liable, and to defend any suit in which bodily injury damages were alleged. (Id. at p. 272, 54 Cal.Rptr. 104, 419 P.2d 168.) It excluded from these broad promises any coverage for bodily injury damages " '... caused intentionally by or at the direction of the insured.' " (Id. at p. 267, 54 Cal.Rptr. 104, 419 P.2d 168.) Looking to "the nature and the kind of risk covered by the policy as a limitation upon the duty to defend," (id. at p. 275, 54 Cal.Rptr. 104, 419 P.2d 168), the court held that since the complaint filed in the underlying action alleged bodily injury, and since the exclusion for intentional acts was unclear because an act can be intentional but cause unintentional harm (id. at pp. 269-275, 54 Cal.Rptr. 104, 419 P.2d 168), "the insurer bore the obligation to defend because the policy led plaintiff reasonably to expect such defense, and because the insurer's exclusionary clause did not exonerate it, ..." (Id. at p. 275, 54 Cal.Rptr. 104, 419 P.2d 168.) 2 As an alternative holding, the court pointed out "the carrier must defend a suit which potentially seeks damages within the coverage of the policy...." An insurer, therefore, bears a duty to defend its insured whenever it ascertains facts which give rise to the potential of liability under the policy. (Id. at pp. 275, 276-277, 54 Cal.Rptr. 104, 419 P.2d 168 [emphasis deleted].) The appellants seek to invoke these doctrines in the present case.
However, as pointed out in Giddings v. Industrial Indemnity Co. (1980) 112 Cal.App.3d 213, 218, 169 Cal.Rptr. 278, "The present case is readily distinguishable from Gray and many of the cases following it, which have broadly interpreted the insurer's duty to defend. [Citing, inter alia, Mullen v. Glen Falls Ins. Co. (1977) 73 Cal.App.3d 163, 140 Cal.Rptr. 605.] In each of these cases, damages of the type covered by the policy had undisputably occurred, and the insurer relied on an unclear exclusionary clause in asserting it was not obligated to defend its insured.[ 3 Here, on the other hand, the question concerns the scope of the basic coverage itself...." (Emphasis added.) (Accord, St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 161 Cal.App.3d 1199, 1203 n. 1, 208 Cal.Rptr. 5 ["St. Paul" ].) The significance of this distinction lies in the burden of proof. While the burden is on the insurer to prove a claim covered falls within an exclusion (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 880, 151 Cal.Rptr. 285, 587 P.2d 1098), the burden is on the insured initially to prove that an event is a claim within the scope of the basic coverage. (California Union Ins. Co. v. Trinity River Lands Co. (1980) 105 Cal.App.3d 104, 111, 163 Cal.Rptr. 802; American Home Assurance Co. v. Essy (1960) 179 Cal.App.2d 19, 23, 3 Cal.Rptr. 586.)
The language of the basic coverage in this case is readily distinguishable as well from that used in Gray 4 and is indistinguishable from that used in St. Paul, supra, 161 Cal.App.3d at p. 1201, 208 Cal.Rptr. 5; Economy Lumber, supra, 157 Cal.App.3d at p. 646, 204 Cal.Rptr. 135; and Giddings, supra, 112 Cal.App.3d at p. 217, 169 Cal.Rptr. 278. In each of those cases and here, the insurer only promises to indemnify or defend actions involving bodily injury caused by an accident resulting in bodily injury neither expected nor intended by the insured. It was therefore the appellants' burden to show they came within this definition. All the evidence they have adduced shows the act by their assignor, Knighten, was intentional. An intentional act is not an "accident" 5 within the plain meaning of the word. (St. Paul, supra, 161 Cal.App.3d at pp. 1202-1203, 208 Cal.Rptr. 5; Economy Lumber, 157 Cal.App.3d at pp. 647-648, 204 Cal.Rptr. 135; cf. Giddings, supra, 122 Cal.App.3d at pp. 218-220, 169 Cal.Rptr. 278 ["property damage"] .) The same roadblock at the definition of "accident" halts any argument claiming the appellants' assignor intended his act but not the resulting harm.
To the extent that Gray' § "alternative holding" 6 constitutes a separate analytic framework (Mullen, supra, 73 Cal.App.3d at p. 172, 140 Cal.Rptr. 605 [citing Gray, supra, 65 Cal.2d at pp. 275-277, 54 Cal.Rptr. 104, 419 P.2d 168] ), the present case is again distinguishable on the ground the appellants' have failed to satisfy their burden of proof. In Gray, the insured offered evidence he had made his insurer aware of the complaint and the facts of his defense which would negate intention; the same is true in Mullen. (73 Cal.App.3d at p. 170, 140 Cal.Rptr. 605.) Here, there is a total failure of proof of what facts were before Royal Globe when it made its decision not to defend. For all we know, it may have made an investigation uncovering facts which brought the claim outside the basic coverage. (Dillon v. Hartford Acc. & Indem Co. (1974) 38 Cal.App.3d 335, 344, 113 Cal.Rptr. 396 [ ]; State Farm Mutual Auto Ins. Co. v. Flynt (1971) 17 Cal.App.3d 538, 548, 95 Cal.Rptr. 296.) Thus, the appellants have not shown facts known to Royal Globe that demonstrated potential liability under the policy. 7
In addition, although the trial court apparently agreed with appellant's assertion that the underlying complaint contained a potential claim for unintentionally caused--accidentally caused--bodily injury, 8 we do not. Appellant's claim against Knighten was based on an allegation that Knighten intentionally made a...
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