Dart Industries, Inc. v. Commercial Union Insurance Co.

52 P.3d 79, 124 Cal. Rptr. 2d 142, 28 Cal. 4th 1059, 2002 Cal. Daily Op. Serv. 7534, 2002 Daily Journal DAR 9479, 2002 Cal. LEXIS 5465
CourtCalifornia Supreme Court
DecidedAugust 19, 2002
DocketS086518
StatusPublished
Cited by117 cases

This text of 52 P.3d 79 (Dart Industries, Inc. v. Commercial Union Insurance Co.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dart Industries, Inc. v. Commercial Union Insurance Co., 52 P.3d 79, 124 Cal. Rptr. 2d 142, 28 Cal. 4th 1059, 2002 Cal. Daily Op. Serv. 7534, 2002 Daily Journal DAR 9479, 2002 Cal. LEXIS 5465 (Cal. 2002).

Opinions

Opinion

MORENO, J.

This appeal requires us to determine what an insured must prove in order to establish its rights under a lost or destroyed insurance policy. The trial court found that the insured had introduced sufficient secondary evidence to prove the substance of the policy’s material provisions, and rendered judgment for the insured. The Court of Appeal held that the insured was required instead to prove the actual words of those provisions, and reversed the judgment. As will appear, we conclude that the holding was erroneous, and therefore reverse the Court of Appeal’s judgment, with some issues outside the scope of review to be determined on remand.

Facts

From the 1940’s until the late 1960’s, Rexall Drug Company (Rexall), predecessor in interest of plaintiff Dart Industries, Inc. (Dart), was one of a number of pharmaceutical companies that manufactured and marketed the prescription drug diethylstilbestrol (DES), a synthetic estrogen widely used at the time to prevent miscarriages.

Throughout this period, Rexall carried comprehensive general liability (CGL) insurance under policies issued in sequence by its three primary [1065]*1065carriers: Employers Liability Assurance Corporation, Ltd. (Employers), predecessor in interest of defendant Commercial Union Insurance Corporation (Commercial Union), for the years 1946-1951; Liberty Mutual Insurance Company (Liberty Mutual), for the years 1951-1966; and Continental Insurance Company (Continental), for the years 1967-1981.

From the mid-1970’s onward, a large number of claimants alleging personal injuries caused by exposure to DES began filing actions for damages against DES manufacturers nationwide. The majority of claimants were adult women whose mothers had ingested DBS while the claimants were in útero and who, when they reached childbearing age themselves, manifested precancerous and cancerous vaginal and cervical lesions, as well as various deformities of their reproductive organs resulting in infertility or miscarriages. (See generally Brown v. Superior Court (1988) 44 Cal.3d 1049 [245 Cal.Rptr. 412, 751 P.2d 470]; Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 [163 Cal.Rptr. 132, 607 P.2d 924, 2 A.L.R.4th 1061].) Many of the complaints were filed against Dart, both in California and in other jurisdictions, alleging exposure to DES in each of the foregoing time periods. Dart tendered the defense of these actions to Commercial Union, Liberty Mutual, and Continental. All three carriers denied coverage and refused to provide a defense.

In October 1984, Dart filed the present action for declaratory relief and damages against Commercial Union, Liberty Mutual, and Continental. The primary relief sought was a declaratory judgment (Code Civ. Proc., § 1060) establishing that the policies defendants sold to Dart and its predecessor obligate them to provide a defense to the DES actions and to indemnify Dart for any liability assessed against it in those actions.

In October 1986, Dart settled with Liberty Mutual and Continental. Commercial Union declined to participate in the settlement. The remaining issue in the case, accordingly, was whether Dart was entitled to a defense and indemnity from Commercial Union under the policy in effect for the period of September 1, 1946, to September 1, 1951, i.e., Employers Policy No. CL92302.1 The question was complicated by the undisputed fact that the policy is lost and neither party has been able to find it or a copy of it. This fact, as we shall see, has led to the principal issue of law we address in this case.

This case has a long and convoluted procedural history, and has been the subject of no fewer than four appeals and four decisions of the Court of Appeal. We briefly review that history.

[1066]*1066After various pretrial proceedings, Dart moved for preference in trial setting. The motion was denied, and shortly thereafter the court dismissed the action for failure to bring it to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.) Dart appealed. In the first appeal, the Court of Appeal held the trial court abused its discretion in denying the motion for preference, and reversed and remanded for trial. (Dart Industries, Inc. v. Commercial Union Ins. Co. (Feb. 28, 1992, B047651) [nonpub. opn.] (Dart Industries I).) The court also concluded that the trial court had properly denied Dart’s motion for summary judgment, and held that at trial Dart must prove the contents of the insurance policy by a preponderance of evidence, rejecting Commercial Union’s contention that proof must be by clear and convincing evidence.

The case was initially tried in 1993 before Judge Newell Barrett, sitting without a jury. Dart undertook to prove the existence and the substance of the material terms of the lost policy by means of the testimony of Charles Pyne, an employee of Obrion, Russell & Co. (Obrion), which served as the insurance agent of Employers, Commercial Union’s predecessor and a broker for the Dart account during the relevant period, as well as by various items of documentary evidence. Judge Barrett entered a minute order announcing a tentative decision in favor of Commercial Union on the ground that Dart had not proved the lost policy’s limits of liability. Dart requested a statement of decision (Code Civ. Proc., § 632), but Judge Barrett died before issuing such a statement. A second judge thereupon signed a judgment for Commercial Union based on Judge Barrett’s minute order. Dart appealed and the Court of Appeal reversed the judgment on the ground that a second judge is not authorized to sign a judgment based only on the first judge’s tentative decision. (Dart Industries, Inc. v. Commercial Union Ins. Co. (May 26, 1995, B083165) [nonpub. opn.].)

The case was assigned for retrial to Judge Loren Miller, Jr. By stipulation, the parties submitted the matter to him for decision on the basis of the record of the first trial, including the reporter’s and clerk’s transcripts and the exhibits, a videotape of the testimony given at the first trial, and new briefs. After reviewing this record, Judge Miller entered a minute order announcing a tentative decision in favor of Dart. He then issued a statement of decision at Commercial Union’s request, and entered judgment accordingly. Commercial Union appealed.

The Court of Appeal held that Judge Miller’s statement of decision was insufficient as a matter of law because it failed to adequately explain the factual or legal basis for his decision on a number of issues identified by Commercial Union and deemed by the Court of Appeal to constitute “principal controverted issues at trial” (Code Civ. Proc., § 632). On this ground, [1067]*1067the Court of Appeal reversed the judgment with directions to Judge Miller to issue a new statement of decision addressing certain additional issues and to enter a new judgment based thereon. (Dart Industries, Inc. v. Commercial Union Ins. Co. (June 27, 1997, B105886) [nonpub. opn.].)

As directed by the Court of Appeal and after further hearing, Judge Miller issued a substantially more detailed 29-page statement of decision and judgment.

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Bluebook (online)
52 P.3d 79, 124 Cal. Rptr. 2d 142, 28 Cal. 4th 1059, 2002 Cal. Daily Op. Serv. 7534, 2002 Daily Journal DAR 9479, 2002 Cal. LEXIS 5465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dart-industries-inc-v-commercial-union-insurance-co-cal-2002.