DocketNumber： D011407
Judges： Froehlich
Filed Date： 5/22/1992
Status： Precedential
Modified Date： 11/3/2024
Opinion
Robert and Susan Devin (Devins) appeal from a judgment entered in favor of United Services Automobile Association (USAA)
I
Factual And Procedural Background
1. The Third Party Lawsuit
Devins owned a home on Cavan Circle in Huntington Beach, which they sold to McNairs in 1984. Escrow closed September 5, 1984, and McNairs took possession four days later. Devins later bought a home on Basalto Street in Carlsbad.
In 1986, McNairs sued numerous parties. The complaint pleaded claims against Devins for intentional and negligent misrepresentation. The complaint alleged the house was sliding, slipping, settling, sinking, fracturing and buckling. McNairs further alleged Devins . . knew or should have known, that the property had experienced extensive subsidence damage and that said subsidence problems were continuing, and would continue to cause severe structural damage to the house and the property.” According to McNairs’ complaint, Devins failed to disclose these defects to them. Mc-Nairs sought damages for the decreased value of the home which these defects had caused and would continue to cause in the future, as well as damages for emotional and physical distress. The factual basis for these allegations is unclear, and McNairs’ complaint sets forth no dates establishing when the subsidence damages supposedly occurred.
Devins timely tendered defense of McNairs’ action to USAA under their homeowners’ policies.
2. The Insurance Policies
Devins were insured under two homeowners’ policies issued by USAA. The first policy covered the Cavan Circle home through September 6, 1984, i.e., through the close of escrow on the sale to McNairs, and the second policy insured the Basalto Street home starting on October 18, 1984.
The relevant policy language regarding indemnity and defense was identical in both policies. The policies provided: “Coverage E—Personal Liability. If a claim is made or a suit is brought against an insured for damages
The policies defined “occurrence” to mean “an accident, including exposure to conditions, which results, during the policy period, in: a. bodily injury; or b. property damage.” “Property damage” was defined as “physical injury to, destruction of, or loss of use of tangible property.”
The policies also contained various exclusions. Personal liability coverage was excluded for bodily injury or property damage “arising out of a premises (1) owned by an insured . . . that is not an insured location, . . .” and personal liability coverage was excluded for property damage “to property owned by insured.”
3. Investigation and Rejection of the Tender of Defense
USAA retained Mr. Lukas to investigate the claim shortly after receiving the tender from Devins. When he was unsuccessful in contacting Devins’ attorney by phone, Lukas corresponded in mid-March requesting a meeting to gather information about the claim. He eventually was able to contact McNairs’ attorney to arrange a site inspection, although McNairs’ counsel postponed the inspection until May 4, 1987. Lukas also had difficulty obtaining interviews with Devins, their counsel refusing to allow such a meeting until May when counsel could be present. The May 12 meeting was again postponed by Devins’ counsel and reset for May 21. Lukas also sought documentation concerning the claim, which documentation was finally completed in mid-June.
Within three weeks after obtaining the documents, USAA rejected Devins’ tender of defense. Based on the complaint and the facts learned by USAA, the tender was rejected because there was (1) no occurrence which resulted in property damage or bodily injury under the terms of the policy; (2) no property damage or bodily injury as defined by the policy; (3) no coverage
At trial of the bad faith action,
4. The Nonsuit Motion
The case was tried before a jury. After Devins rested their case, USAA moved for a nonsuit, arguing (1) as a matter of law, there was no duty to defend or indemnify in this case; (2) the legal issues had already been adjudicated by a pretrial ruling that McNairs’ complaint did not allege either property damage or bodily injury damages;
Devins filed a timely appeal from the judgment as well as from the rulings granting summary adjudication of issues.
Standard of Review
In Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 [253 Cal.Rptr. 97, 763 P.2d 948], our Supreme Court summarized the law on nonsuits as follows:
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintifffs) evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff(’s) favor.’ ” [Citation.] A mere ‘scintilla of evidence’ does not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the necessary conflict.’ [Citation, italics in original.] [][] In reviewing a grant of nonsuit, [the appellate court is] ‘guided by the same rule . . . .’ [Citation.]”
Our review is also governed by the familiar admonition that “ ‘. . . a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ [Citation.]” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [112 Cal.Rptr. 786, 520 P.2d 10].) Thus, where a nonsuit has been granted for the wrong reason but the order itself is correct based on other grounds, we must affirm the order. (Walker v. Northern San Diego County Hospital Dist. (1982) 135 Cal.App.3d 896, 899-900 [185 Cal.Rptr. 617]; Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 158-159 [144 Cal.Rptr. 794].)
We therefore must determine whether the facts, viewed in the light most favorable to Devins, show USAA had no duty to defend.
III
Analysis
A. The Duty to Defend Exists Only When There Is Potential for the Third Party to Assert a Claim Covered by the Policy
USAA argued below, and now urges on appeal, the nonsuit was proper because there is no evidence of any possibility McNairs’ lawsuit could have encompassed a covered claim.
Additionally, the duty to defend is measured at the outset of the litigation because, unlike the duty to indemnify, which is determinable only after the basis for the insured’s liability is finally established, the duty to defend is based on the potential for the establishment of a covered claim, not the actual establishment of a covered claim. (CNA Casualty of California v. Seaboard Surety Co., supra, 176 Cal.App.3d at p. 605.) The duty to defend arises as long as the facts (either as expressed or implied in the third party’s complaint or as learned from other sources) give rise to a potentially covered claim (Fresno Economy Import Used Cars, Inc. v. United States Fid. & Guar. Co. (1977) 76 Cal.App.3d 272, 279 [142 Cal.Rptr. 681]), even though the insurer’s investigation produces facts showing the claim is baseless. It is the insurer’s duty to prove the allegations false. (CNA Casualty of California v. Seaboard Surety Co., supra, 176 Cal.App.3d at p. 606.) Finally, if an insurer is bound to defend an action based on the assertion of one covered claim, it must defend the entire action even though some portions of it involve noncovered claims. (Hogan v. Midland National Ins. Co. (1970) 3 Cal.3d 553, 564 [91 Cal.Rptr. 153, 476 P.2d 825].)
The foregoing authorities show the duty to defend is indeed a wide-ranging obligation. However, such duty, while broad, is not unlimited. Where there is no potential for the third party to recover on a covered claim, there is no duty to defend. (Fire Ins. Exchange v. Jiminez (1986) 184 Cal.App.3d 437, 440-442 [229 Cal.Rptr. 83]; Dillon v. Hartford Acc. & Indem. Co. (1974) 38 Cal.App.3d 335, 339-345 [113 Cal.Rptr. 396].)
With these general principles in mind, we must evaluate whether the evidence, viewed in the light most favorable to Devins,
We first reject Devins’ claim that there was a potentially covered claim for “property damage.” The policy specifically limits coverage to occurrences causing property damage, and defines property damage as “physical injury to, destruction of, or loss of use of, tangible property.” Where a third party’s suit alleges the insured’s wrongful conduct caused only economic injury, and there is no suggestion of any wrongful conduct causing injury to tangible property, the insurer does not owe a defense, there being no damage or injury to tangible property within the meaning of the policy. (Giddings v. Industrial Indemnity Co. (1980) 112 Cal.App.3d 213, 218-220 [169 Cal.Rptr. 278].)
Here, McNairs alleged claims for intentional and negligent misrepresentation causing a pecuniary loss—the lost fair market value of the house.
C. There Was No Potential for McNairs to Assert a Covered Claim for Bodily Injury
Our review of the policies, together with the allegations of McNairs’ complaint and the facts learned by USAA, also shows there was no possibility McNairs could assert a claim for bodily injury which would be covered under the policies.
First, even assuming McNairs could recover their emotional distress damages under the “bodily injury” coverages, any emotional distress they suffered could only have arisen after they took possession and discovered the falsity of the representations. These events all occurred after the Cavan Circle policy expired. Since the Cavan Circle policy only provided coverage for an “ ‘occurrence’ . . . which results, during the policy period, in . . . bodily injury” (italics added), and the injury here occurred after the policy terminated, the Cavan Circle policy does not cover the injury. (See Maples v. Aetna Cas. & Surety Co. (1978) 83 Cal.App.3d 641, 647-650 [148 Cal.Rptr. 80] [“occurrence” policy covers injuries based on time of injury, not time of negligent act]; Hallmark Ins. Co. v. Superior Court (1988) 201 Cal.App.3d 1014, 1017-1019 [247 Cal.Rptr. 638] [same]; see also State Farm Fire and Cas. Co. v. Neumann (N.D.Cal. 1988) 698 F.Supp. 195, 196 [negligent
Accordingly, even if the emotional distress suffered by McNairs could otherwise qualify as a covered claim, coverage must be found under the Basalto Street policy.
*1161 “Were this not the case, the premises exclusion would essentially become meaningless as to any property over which the insured may have at any time had control .... H] As a matter of ‘Accepted popular, as well as legal, definition,’ we believe that a renter or homeowner, and his insurer, would not ordinarily intend or reasonably expect coverage for the accident such as the one involved here under policy terms similar to those relied upon here.” (42 Cal.3d at pp. 120-121.)
We find the Preston rationale convincing and controlling. Homeowners’ policies are ordinarily designed to provide first party casualty coverage for damages to the home, and third party liability coverage when conduct or an accident occurring on the insured premises injures third persons. (See generally, Warner v. Fire Ins. Exchange, supra, 230 Cal.App.3d 1029, 1032-1036.) Where conduct occurs away from the insured premises, we perceive neither an intent to provide coverage nor a reasonable expectation of providing coverage.
Yet another reason supports the conclusion there was no potential for the assertion of a covered claim: McNairs’ complaint in fact did not assert a claim against the insureds for emotional distress which caused physical injury,
Here, the negligent act (the misrepresentation) caused only economic harm. Even apart from the special limitations on fraud damages under Civil Code section 3343, it is the general rule that negligence which causes only monetary harm does not support an award of emotional distress damages. (See Quezada v. Hart (1977) 67 Cal.App.3d 754, 761-763 [136 Cal.Rptr. 815] [where gravamen of action is negligence, causing only monetary harm, damages do not include emotional distress]; Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012-1013 [200 Cal.Rptr. 746] [negligent infliction of property damage to home does not support award of emotional distress damages].)
Since there was no possibility McNairs could recover on a claim for bodily injury on the facts (either as pleaded, later learned or even potentially assertable), there was no duty to defend.
Disposition
The judgment is affirmed.
Huffman, Acting P. J., concurred.
Although the term “accident” is not defined in the USAA policies, a “Quick Reference— Policy Summary” provided to Devins by USAA stated: “This policy insures your home and other structures located on and appertaining to your residence premises. In addition, this policy gives you coverage for your personal property and provides financial protection when you are held liable for damage to the property of others or for injury to others—both on and off your property. These coverages are subject, however, to those limitations and restrictions specifically identified and further explained where necessary.”
The invocation of this exclusion was apparently directed at McNairs’ allegation that Devins had intentionally defrauded them. The USAA property examiner assigned to the case indicated that, based on USAA’s investigation, he had no reason to disbelieve Devins’ claim that they were unaware of the alleged problems or that they intended to injure McNairs. Moreover, Devins testified they were unaware of the problems when they sold the house.
USAA ultimately paid the McNairs $5,000, and the McNairs dismissed with prejudice their action against Devins. In the remaining bad faith action, Devins sought reimbursement from USAA of $3,900.24—the total fees and costs incurred by Devins in defending McNairs’ case.
USAA had previously filed a motion seeking summary judgment or, alternatively, summary adjudication of seven issues. Among the issues presented were: (1) the allegations in McNairs’ complaint did not fall within the definition of occurrence as defined by the policy; (2) McNairs’ complaint did not allege property damage against Devins; (3) McNairs’ complaint did not allege bodily injury damages against Devins; and (4) the policy is clear and unambiguous with respect to its exclusion from coverage of the intentional conduct of its insureds. The court denied the request for summary judgment, but granted summary adjudication of issues 1 to 4. Although the motion was premised on interpreting the Cavan Circle policy, both policies contain identical language defining occurrence, bodily injury, defense provisions and exclusions. We therefore find no merit in Devins’ argument that the ruling on the summary adjudication of issues was irrelevant at the time of trial.
The evidence at trial included testimony of plaintiff’s expert, who opined USAA should have provided a defense because he “believed” the McNairs’ complaint alleged facts which
The dissent suggests a nonsuit was improper because we must accept the trial court’s ruling admitting the opinion, a premise with which we disagree (see Code Civ. Proc., § 906 [respondent may raise errors committed against him to show judgment should be affirmed despite appellant’s claims]). With such opinion as “evidence,” the dissent concludes, a nonsuit was barred. The dissent overlooks the specific statement in Natty v. Grace Community Church, supra, 47 Cal.3d at page 291, that the propriety of a nonsuit depends on the evidence being given only such weight to which it is legally entitled, requiring us to disregard incompetent evidence to which a proper objection was lodged. Although the dissent claims Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910 [148 Cal.Rptr. 389, 582 P.2d 980] validates expert testimony, the dissent fails to note that Neal did not involve opinions on the legal question of whether coverage existed (since coverage concededly was present in Neal), but instead involved opinions on questions concerning such factual issues as the promptness of the insurer’s responses to settlement overtures. (Id. at pp. 921-924.) Opinions approving admission of expert testimony as to factual matters such as industry standards for dealing with covered claims cannot be read to authorize experts to opine in the first instance as to the existence of coverage.
The dissent reasons there must have been injury to tangible property, and not mere economic harm, by emphasizing that USAA settled and paid McNairs $5,000, assertedly as “cost of repair” to the property. The dissent’s characterization is both factually incorrect and
More importantly, the dissent’s treatment of the settlement payment, as some sort of implied admission that coverage was owed, is disingenuous. USAA specified the payment to McNairs was to end McNairs’ lawsuit, “would be without prejudice to USAA’s coverage position, and would be based upon the specific agreement of the parties hereto that it would not constitute any admission of liability on the part of USAA for any indemnity payments.” The settlement check was forwarded with a similar admonition. Despite this understanding, the dissent seeks to use this as a weapon against USAA. The dissent’s approach would frustrate the very policy the dissent seeks to further, i.e., it would discourage insurers from settling with third parties for fear the settlement will become evidence against them in any coverage dispute.
The same analysis of noncoverage also applies to the creative musings of the dissent as to how a covered claim might have been asserted. The dissent, noting that Mr. Devin had been a carpenter and at trial saw pictures of the crawl space in the house, the workmanship of which he testified was “shoddy,” claims the “only logical inference” to be drawn from those questions is that McNairs could have amended to state a claim for “simple negligence,” which we can only interpret to mean a “negligent repair by Devin” theory. We disagree this is the only inference to be drawn from those questions, since Mr. Devin’s knowledge of the defective repairs is also pertinent to the fraud claims, i.e., failure to disclose known problems. More importantly, however, the “negligent repair by Devin” theory was neither raised by the pleadings nor argued at trial.
Nor was the “negligent repair by Devin” theory raised by the parties in their appellate briefs. Since the “negligent repair by Devin” theory first appears in the dissent, the wisdom of the injunction against deciding cases on appeal based on matters not briefed by the parties (Gov. Code, § 68081) becomes clear: We can only speculate what USAA’s response to this argument might have been had it been raised by Devins. We surmise, however, that even if such a claim had been raised by Devins, USÁA could well have pointed to the various exclusions discussed in this section. That is, to the extent Mr. Devin’s repairs caused damages which first appeared before he sold the house, they would be subject to the exclusion against personal liability coverage for damage to property owned by the insured. To the extent Mr. Devin’s repairs caused damages which first appeared after he sold the house, they would not be covered under the Cavan Circle Policy because the injury would not have occurred while such policy was in effect. Nor would coverage be available under the Basalto Street policy for the reasons more particularly specified in Preston v. Goldman, (1986) 42 Cal3d 108 [227 Cal.Rptr. 817, 720 P.2d 476] i.e., it would be an injury arising out of an uninsured location.
The exclusion here is substantively indistinguishable. It excludes from personal liability coverage those injuries “arising out of a premises: (1) owned by an insured; (2) rented by an insured; or (3) rented to others by an insured . . . that is not an insured location.”
The federal courts are in accord. In State Farm Fire & Cas. Co. v. Thomas (N.D.Cal. 1991) 756 F.Supp. 440, the court evaluated a claim identical to that asserted here: whether misrepresentation in the sale of a prior home could be covered under a homeowners’ policy on the seller’s new home. The State Farm court, relying heavily on Preston, concluded the injuries “arose from” the former home (an uninsured premises under the later policy), and rejected the insured’s claim that because he did not own the former premises at the time the injury arose, the exclusion for uninsured premises did not apply. The State Farm court rejected such an interpretation because it would make a later insurer liable for injuries arising out of any formerly owned premises, even though the policy was designed to cover liability only for injuries connected to currently owned premises. Under Preston, the State Farm court concluded, no insured or insurer would reasonably expect coverage for conduct which occurred at previously owned premises absent explicit coverage to the contrary. (Id. at pp. 444-445; cf. American Empire Surplus Lines Ins. v. Bay Area Cab (N.D.Cal. 1991) 756 F.Supp. 1287, 1289-1290 [premises policy does not cover injuries occurring away from insured premises].)
Although the complaint pleaded both emotional and physical distress, it originally sought such recovery from parties other than Devins. McNairs never told USAA they sought damages for emotional distress causing physical injury as against the insured; instead, USAA understood from the investigation there was no bodily injury “except mental.” A claim for mental distress unaccompanied by physical injury is not “bodily injury” within the terms of a liability policy. (Aim Insurance Co. v. Culcasi, supra, 229 Cal.App.3d at pp. 224-228 [“bodily injury” does not encompass mere emotional distress, and there was no duty to defend absent notice of facts suggesting emotional injury also included physical injury].) Although Devins claim United Pacific Ins. Co. v. McGuire Co. (1991) 229 Cal.App.3d 1560 [281 Cal.Rptr. 375] disagreed with Aim Insurance, the United Pacific court rested its holding on an entirely