Clarendon America Insurance v. General Security Indemnity Co. of Arizona

193 Cal. App. 4th 1311, 124 Cal. Rptr. 3d 1, 2011 Cal. App. LEXIS 377
CourtCalifornia Court of Appeal
DecidedMarch 2, 2011
DocketNo. B223566
StatusPublished
Cited by18 cases

This text of 193 Cal. App. 4th 1311 (Clarendon America Insurance v. General Security Indemnity Co. of Arizona) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clarendon America Insurance v. General Security Indemnity Co. of Arizona, 193 Cal. App. 4th 1311, 124 Cal. Rptr. 3d 1, 2011 Cal. App. LEXIS 377 (Cal. Ct. App. 2011).

Opinion

Opinion

CHAVEZ, J.

Clarendon America Insurance Company (Clarendon) filed a complaint for declaratory relief, equitable contribution, and equitable indemnity against General Security Indemnity Company of Arizona as the attorney in fact for General Security Indemnity Company (General Security) after settling an action against Hilmor Development (Hilmor), a company that both Clarendon and General Security had insured during different timeframes. General Security cross-complained for declaratory relief and the trial court resolved competing motions for summary judgment in General Security’s [1314]*1314favor. Clarendon appeals from the final judgment entered after the trial court granted summary judgment against it. We affirm.

CONTENTIONS

Clarendon contends that the trial court incorrectly interpreted the “products-completed operations hazard” provision of the commercial general liability (CGL) policy issued by General Security, and that the action against Hilmor fell within the scope of General Security’s coverage under that provision. Clarendon further contends that exclusions j(5) and j(6) of the General Security policy, as well as the “claims in progress” exclusion of that policy, do not preclude coverage.

BACKGROUND

Clarendon insured Hilmor under a CGL policy effective July 1, 2000, to July 1, 2001. General Security insured Hilmor under a CGL policy effective July 1, 2001, to July 1, 2002.

On or about September 30, 1999, Hilmor entered into a written construction contract with Haim and Lucinda Revah to serve as the general contractor for the construction of the Revahs’ custom single-family home located at 705 North Alta Drive in Beverly Hills, California. The construction contract provided that Hilmor would perform “all work necessary to demolish the existing residence” and to “construct and complete the Improvements in accordance with the Contract Documents.” The “Improvements” called for in the construction contract included “construction of a new residence . . . consisting of an approximately 14,000 square foot single family home and related hardscape, landscape, fencing and other improvements.” The construction contract provided several conditions that had to be met before the Revahs’ home would be considered complete, including, among other things, the recording of a notice of completion and the Revahs’ ability to beneficially occupy the entire property.

On May 18, 2001, prior to the completion of the Revah residence, the Revahs terminated their contract with Hilmor. In June 2001, Hilmor assigned all subcontracts to the Revahs as required under the construction contract. It was undisputed that the construction of the Revah residence was not completed at the time of Hilmor’s termination from the project. Construction of the residence continued without further participation of any kind from Hilmor. A temporary certificate of occupancy for the Revahs’ residence was issued on September 24, 2001.

On November 12, 2004, the Revahs filed an action against Hilmor alleging defects in the construction of their home. (Revah v. Hilmor Development [1315]*1315Corp. (Super. Ct. L.A. County, 2009, No. BC324407) (the Revah action).) They also sued the general contractor hired to complete construction of their residence, as well as various subcontractors, alleging construction defects and continuing and progressive damage. They alleged that the interior and exterior of their home were damaged as a result of various construction defects.

Hilmor tendered its defense and indemnification in the Revah action to Clarendon. Clarendon accepted the tender and retained the law firm of Pierce & Weiss to defend Hilmor in the Revah action. Clarendon withdrew its defense in May 2006, then later agreed to defend after Hilmor’s counsel threatened to file an insurance bad faith lawsuit against various carriers, including Clarendon. Clarendon retained Small, Henstridge, Cabodi & Pyles, which associated in as counsel on or about January 30, 2008.

Hilmor’s defense and indemnification had been tendered to General Security on April 14, 2004, by Pierce & Weiss. At first, General Security agreed to participate in Hilmor’s defense through Pierce & Weiss. On May 15, 2006, General Security withdrew its defense on the ground that there was no coverage or potential for coverage under the General Security policy because (1) Hilmor did not complete all of the work called for in Hilmor’s contract with the Revahs prior to the inception of the General Security policy, therefore the products-completed operations hazard clause was not triggered; and (2) the faulty workmanship exclusions and other exclusions in the General Security policy operated to exclude coverage for the claims and damages asserted by the Revahs.

In October 2008, Clarendon settled with the Revahs, allegedly agreeing to pay its full policy limit of $1 million plus contributions of defense costs that it received from some of the subcontractors that worked on the Revah project. In addition, Clarendon allegedly paid defense fees in the amount of $473,463.29 to the Small, Henstridge, Cabodi & Pyles firm.

PROCEDURAL HISTORY

On February 13, 2009, Clarendon filed this action against General Security seeking contribution for the amounts Clarendon paid to defend and indemnify Hilmor in the Revah action. General Security filed a cross-complaint for declaratory relief seeking a judicial declaration regarding both its duty to defend and its duty to indemnify Hilmor in the Revah action.

[1316]*1316On November 6, 2009, Clarendon filed a motion for summary judgment, or in the alternative summary adjudication, seeking a determination that Clarendon was entitled to contribution from General Security for the amounts Clarendon actually incurred to defend and indemnify Hilmor in the Revah action.

On November 19, 2009, General Security filed its motion for summary judgment, or in the alternative summary adjudication, on the ground that there was no coverage or potential for coverage of the Revahs’ claims against Hilmor under the General Security policy.

The parties’ motions were heard as cross-motions. On February 4, 2010, the trial court determined that General Security had met its burden of showing that there was no possibility of coverage under the General Security policy. First, the trial court analyzed the products-completed operations hazard clause in General Security’s contract. The court held that there was “no triable issue of fact as to whether the products completed operations hazard coverage under Defendant’s policy applied here. It did not.” The court next determined that exclusions j(5) and (6) of the General Security policy precluded coverage for “property damage arising out of Hilmor’s work at the Revahs’ residence during construction related to defective work and material or satisfactory work damaged by defective work and materials.” Finally, the trial court determined that the “claim(s) in progress” exclusion in Defendant’s policy clearly excludes coverage from continuing and progressive property damage that began before the inception of the policy. The trial court denied Clarendon’s motion and granted General Security’s motion.

On April 5, 2010, Clarendon filed its notice of appeal.

DISCUSSION

I. Standards of review of summary judgment

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Cite This Page — Counsel Stack

Bluebook (online)
193 Cal. App. 4th 1311, 124 Cal. Rptr. 3d 1, 2011 Cal. App. LEXIS 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarendon-america-insurance-v-general-security-indemnity-co-of-arizona-calctapp-2011.