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IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
PRESLEY HOMES, INC.,
Plaintiff and
Appellant,
v.
AMERICAN STATES INSURANCE
COMPANY,
Defendant and
Respondent
G023182
(Super. Ct. No. 773048)
OPINION
Appeal
from a judgment of the Superior Court of Orange County, Robert J. Polis,
Judge. Reversed.
Newmeyer &
Dillion, Gregory L. Dillion, Gene M. Witkin, Timothy S. Menter, and Reed
N. Archambault for Plaintiff and Appellant.
Richards, Watson &
Gershon, Erwin E. Adler, Benjamin Barnouw, and Thomas M. Jimbo for Defendant
and Respondent.
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* *
Plaintiff Presley
Homes, Inc. sued defendant American States Insurance Company seeking damages,
plus declaratory and injunctive relief. Defendant cross-complained
against plaintiff for declaratory relief. The action involves a dispute
over the extent of defendant's obligation under the additional insured
endorsements of two insurance policies to provide plaintiff with a defense
in a third party's construction defects lawsuit.
Each party moved for
summary adjudication of issues. Plaintiff requested a finding that
defendant "had a duty. . .to provide [plaintiff] with a full and complete
(100%) defense of all claims, covered and noncovered, arising out of the
[third party] action. . . ." Defendant sought a finding the complaint
lacked merit, in part, because plaintiff was "not entitled to a 'full and
complete defense' under the [policies'] additional insured endorsements."
The trial court denied plaintiff's motion, granted defendant's motion,
and directed a judgment be entered for defendant on each of plaintiff's
causes of action. Shortly after the court issued a ruling, defendant
dismissed the cross-complaint.
Plaintiff appealed
from the trial court's order. At our request, the parties jointly
obtained entry of a final judgment, and we treat this appeal as taken from
that judgment. Since plaintiff was entitled to have defendant provide
a defense to the entire action as a matter of public policy, we reverse
the trial court's decision.
FACTS
Plaintiff, a real estate
developer, contracted with Darrell Link Construction and Sunrise Framers
to work on a residential construction project named Andora. Link's
agreement required it to install concrete foundations, driveways, walkways,
and stoops. Sunrise agreed to purchase the lumber and perform the
project's rough carpentry work. The contracts required Link and Sunrise
to amend their liability insurance policies to name plaintiff as an additional
insured.
Link and Sunrise each
had a commercial general liability policy with defendant. Under the
policies, defendant agreed to "pay those sums that the insured becomes
legally obligated to pay as damages because of 'bodily injury' or 'property
damage'." The policies also provided defendant "will have the right
and duty to defend any 'suit' seeking those damages."
Link's policy included
an endorsement amending the definition of an insured "to include [plaintiff].
. .subject to the following provisions. [] 1. This insurance applies only
with respect to liability: [] a. Arising out of 'your work' for that insured
by or for you; or [] b. Arising from the general supervision of 'your work'
by [plaintiff]. [] 2. This insurance does not apply to 'bodily injury'
or 'property damage' arising out of the sole negligence or willful misconduct
of, or for defects in design furnished by, [plaintiff]." The endorsement
also modified Link's policy to declare "[t]his insurance is primary, and
our obligations are not affected by any other insurance carried by such
additional insured whether primary, excess, contingent, or on any other
basis." The additional insured endorsement in Sunrise's policy stated
as follows: "WHO IS AN INSURED (Section II) is amended to include [plaintiff]
as an insured. . ., but only with respect to liability arising out of 'your
work' for that insured by or for you."
Daniel and Denise
Cassidy sued plaintiff seeking damages for defects in the construction
of a residence they purchased in the Andora project. Plaintiff cross-complained
for indemnity against several subcontractors, including Link and Sunrise.
Plaintiff tendered
the defense of the Cassidy action to defendant. The latter agreed
to share in plaintiff's defense, but denied having a duty to defend plaintiff
against all of the Cassidys' claims. With respect to Sunrise, defendant
proposed to retain separate counsel on the framing issues. The parties
also discussed the possibility of defendant paying a percentage of plaintiff's
defense costs based on Sunrise and Link's work on the Cassidy residence.
When the parties failed to reach agreement, plaintiff sent defendant a
letter demanding it provide a "full and complete defense," and that defendant
"acknowledge its obligation to [plaintiff] by its immediate agreement to
reimburse [plaintiff] for its attorney's fees and costs incurred. . .in
this action. . . ." (Emphasis in original.) Defendant maintained
the position that it had a duty to defend plaintiff against only the claims
relating to Link and Sunrise's work.
The Cassidy action
was resolved by a settlement with the subcontractors contributing to it.
Plaintiff did not pay any part of the settlement, but did incur legal expenses
in defending against the suit. Defendant presented declarations from
claims supervisors asserting it settled plaintiff's indemnification claims
for the defense costs attributable to Link and Sunrise's work.
DISCUSSION
The trial court ruled
defendant did not have an obligation to provide plaintiff with a full and
complete defense of all claims asserted in the Cassidy action. Plaintiff
challenges the validity of this ruling. We conclude the trial erred
by holding defendant did not have a duty to defend the entire lawsuit.
The duty of an insurer
to provide a defense is broad and applies when there is only a potential
for coverage even if no covered loss is ultimately incurred. (Aerojet-General
Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 59; County of San
Bernardino v. Pacific Indemnity Co. (1997) 56 Cal.App.4th 666, 679-680.)
Division One of this district has recognized a subcontractor's insurer
must provide a defense to a developer listed as an additional insured under
the subcontractor's liability to policy when the developer is sued by a
third party for construction defects allegedly resulting from the subcontractor's
work. (Maryland Casualty Co. v. Nationwide Ins. Co. (1998) 65 Cal.App.4th
21, 31.)
Defendant recognized
it had a duty to defend plaintiff when it agreed to share in the cost of
plaintiff's defense in the Cassidy action. Link's additional insured
endorsement expressly described the policy as "primary" insurance, unaffected
by plaintiff's other insurance coverage. On appeal, defendant's brief
repeatedly emphasizes the limited scope of its policies' "coverage" for
plaintiff. While the additional insured endorsements may have limited
defendant's indemnity obligation to cases where plaintiff is held vicariously
liable for work performed by Link or Sunrise (see Maryland Casualty Co.
v. Nationwide Ins. Co., supra, 65 Cal.App.4th at pp. 30, 33), the issue
in this case is whether defendant properly limited the scope of its defense
obligation to plaintiff.
It is settled that
where an insurer has a duty to defend, the obligation generally applies
to the entire action, even though the suit involves both covered and uncovered
claims, or a single claim only partially covered by the policy. (Aerojet-General
Corp. v. Transport Indemnity Co., supra 17 Cal.4th at pp. 59-60; Buss v.
Superior Court (1997) 16 Cal.4th 35, 48-49; Horace Mann Ins. Co. v. Barbara
B. (1993) 4 Cal.4th 1076, 1081; Hogan v. Midland National Ins. Co. (1970)
3 Cal.3d 553, 563; Blackfield v. Underwriters at Lloyd's London (1966)
245 Cal.App.2d 271, 275.) The additional insured endorsements amended
the policies' definition of the term "insured" to include plaintiff.
Defendant assumed a duty to defend an action seeking damages for injury
to property. While the endorsements limited the coverage for plaintiff
to "liability" arising from Link or Sunrise's work, nothing in either the
policies or the endorsements limited defendant's obligation to provide
plaintiff with a defense.
A similar contention
was rejected in Maryland Casualty Co. v. Nationwide Ins. Co., supra, 65
Cal.App.4th 21. There Nielsen, a general contractor, hired subcontractors
insured by Nationwide. The subcontractors' liability policies contained
endorsements which listed Nielsen as an additional insured where Nielsen
was "held liable" for the subcontractor's work. A third party sued
Nielsen for construction defects. Nielsen tendered the action to
Nationwide, but it refused to provide a defense. Plaintiffs, Nielsen's
insurers, defended Nielsen and then sought contribution from Nationwide.
The Court of Appeal
rejected a claim the limiting language contained in Nationwide's additional
insured endorsements restricted its duty to provide Nielsen with a defense.
"The additional insured endorsements made Nielsen an 'insured' under policies
that expressly imposed a defense duty. The endorsements did not expressly
or implicitly limit this defense obligation. Nationwide argues the
requirement that the insurance applies 'only to the extent' Nielsen is
'held liable' is a clear and unambiguous statement eliminating its duty
to defend Nielsen. But is it just as reasonable to view this phrase
as referring only to the scope of Nationwide's indemnity obligation and
limiting this obligation to situations where Nielsen is held liable for
the acts of the named insured. Since a defense duty is broader than
an indemnification obligation, the limitation on the scope of coverage
does not eliminate the defense duty, but instead merely forms the parameters
for that duty. [Citation.]" (Maryland Casualty Co. v. Nationwide
Ins. Co., supra, 65 Cal.App.4th at p. 31.)
Defendant contends
that in this case nothing supports a finding plaintiff had an objectively
reasonable expectation of a full and complete defense, and this court lacks
the power to rewrite the policies. This argument lacks merit because
an insurer's duty to defend the entire action is based on public policy,
not the terms of the parties' contract. In Buss v. Superior Court,
supra, 16 Cal.4th 35, the Supreme Court explained the basis for this rule:
"We cannot justify the insurer's duty to defend the entire 'mixed' action
contractually, as an obligation arising out of the policy, and have never
even attempted to do so. . . . [] That being said, we can, and do, justify
the insurer's duty to defend the entire 'mixed' action prophylactically,
as an obligation imposed by law in support of the policy. To defend
meaningfully, the insurer must defend immediately. [Citation.]
To defend immediately, it must defend entirely. It cannot parse the
claims, dividing those that are at least potentially covered from those
that are not. To do so would be time consuming. It might also
be futile: The 'plasticity of modern pleading' [citation] allows the transformation
of claims that are at least potentially covered into claims that are not,
and vice versa." (Id. at pp. 48-49, fn. omitted.)
As noted, by agreeing
to pay a share of plaintiff's defense costs, defendant effectively admitted
it owed a duty to provide plaintiff with a defense. Its effort during
the pendency of the Cassidy action to limit its defense obligation to the
portion attributable to Link and Sunrise's potential exposure, and the
delay in providing a defense while the parties attempted to reach a mutually
acceptable percentage, highlights the very reason the Supreme Court requires
an insurer to provide a complete defense even where the underlying lawsuit
includes both covered and uncovered claims. (See Haskel, Inc. v.
Superior Court (1995) 33 Cal.App.4th 963, 976, fn. 9.)
This rule does not
result in any unfairness to defendant. Had defendant provided plaintiff
with a complete defense in the Cassidy action, it could have sought contribution
from other insurers obligated to defend the claim against plaintiff.
(Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27, 36-37; Maryland
Casualty Co. v. Nationwide Mutual Ins. Co. (2000) 81 Cal.App.4th 1082,
1089; Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th
1279, 1293.)
Defendant also focuses
on the fact that plaintiff did not pay a premium for the additional insured
endorsements added to Link and Sunrise's policies. Maryland Casualty
Co. v. Nationwide Ins. Co., supra, 65 Cal.App.4th 21 considered and rejected
this argument as well. "Viewing the totality of the circumstances,
we are unpersuaded the premium cost establishes the insureds would have
expected they were purchasing indemnity agreements without a duty to defend.
First, as explained above, an insured would be entitled to reasonably rely
on the policy language to conclude Nationwide had assumed a duty to defend
Nielsen for potentially covered claims. Additionally, because the
parties purchased the endorsements as protection against potential construction
defect litigation, it is reasonable to assume they expected Nationwide
to defend the general contractor. Since construction defect litigation
is typically complex and expensive, a key motivation in procuring an additional
insured endorsement is to offset the cost of defending lawsuits where the
general contractor's liability is claimed to be derivative. [Citation.]"
(Id. at p. 33; see also Pardee Construction Co. v. Insurance Co. of the
West (2000) 77 Cal.App.4th 1340, 1361.)
The payment of an
additional premium would appear to be a matter of contract between defendant
and the subcontractors it agreed to insure. Presumably, Link and
Sunrise considered the cost of their liability insurance, including the
additional insured endorsement, when each submitted a bid on the Andora
project. If, as defendant asserts, it simply provided the additional
insured endorsements without increasing the amount of the subcontractors'
premiums, that still would not affect a covered party's reliance on the
policies' language and the nature of the activity covered by them.
DISPOSITION
The judgment is reversed
and the matter remanded to the superior court for further proceedings.
Appellant shall recover its costs on appeal.
RYLAARSDAM, J.
WE CONCUR:
SILLS, P.J.
BEDSWORTH, J.
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Comments
by Low, Ball & Lynch
Construction defect lawsuits
commonly involve a dispute over the extent of an insurer's obligation under
an additional insured endorsement to provide a defense to the additional
insured. This case addresses that issue.
Presley Homes, Inc. contracted
to build a residential construction project called "Andora." Various subcontractors
were hired, including Link Construction, which was to install concrete
foundations, driveways, walkways and stoops, and Sunrise Framers, who agreed
to provide lumber and perform rough carpentry work. Each contractor named
Presley Homes as an additional insured on their comprehensive general liability
policies. The additional insured endorsement provided coverage for liability
arising out of the work of the named insured for the additional insured.
Daniel and Denise Cassidy
sued Presley Homes seeking damages for defects in their residence. Presley
Homes cross-complained for indemnity against the subcontractors, including
Link and Sunrise. American States Insurance Company insured Link and Sunrise.
Presley Homes tendered the defense of the action to American States. American
States agreed to defend as to the claims related to its named insureds,
but denied having a duty to defend all of the claims.
The Cassidy action was eventually
resolved. This included settlement of claims against Link and Sunrise.
Presley Homes paid no part of the settlement.
Presley Homes then initiated
an action against American States seeking recovery of the sums it paid
for its defense.
Each side moved for summary
judgment. The trial court denied plaintiff's motion and entered judgment
for defendant. Presley Homes appealed.
The Court of Appeal reversed
the trial court. The Court noted a subcontractor's insurer must provide
a defense to a developer listed as an additional insured on the subcontractor's
liability policy when the developer is sued for construction defects allegedly
resulting from the subcontractor's work. The Court noted that the additional
insured endorsements limited the insurer's obligation to pay indemnity
in cases where Presley Homes was held vicariously liable for work performed
by Link or Sunrise. There was no such limitation on the defense.
The duty to defend applies
to an entire action, even though a suit involves both covered and uncovered
claims. In this case, while coverage was limited to liability arising from
Link's or Sunrise's work, nothing in either policy limited the obligation
to provide a defense. When American States agreed to pay a part of Presley
Homes' defense costs, it admitted it owed a duty to provide a defense.
American States' effort to limit its defense obligation to the portion
attributable to Link's and Sunrise's potential exposure was improper.
The Court noted that this
was not unfair. A defendant who has the duty to defend can seek contribution
from other insurers obligated to also provide a defense. The Court reversed
the trial court ruling and remanded the matter to the trial court for further
proceedings. |