Duarte & Witting, Inc. v. Universal Underwriters Insurance

Ninth Circuit

Duarte & Witting, Inc. v. Universal Underwriters Insurance

291 F. App'x 807

Court of Appeals for the Ninth Circuit·Decided August 18, 2008·No. No. 06-16653·Published

Opinion

MEMORANDUM

***

Duarte & Witting, Inc. and the Eghtesads appeal the district court’s grant of summary judgment in favor of Universal Underwriters Insurance Company. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. Leonel v. Am. Airlines, Inc., 400 F.3d 702, 708 (9th Cir. 2005). We affirm.

Appellants argue that the district court erred by holding that the loss manifested prior to the effective date of the Universal policy. California follows the manifestation rule to determine insurer liability for first party property losses in which the losses progress over several policy periods. Prudential-LMI Com. Ins. v. Super. CL, 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230, 1246 (1990). The date of manifestation or inception of the loss occurs:

when appreciable damage occurs and is or should be known to the insured, such that a reasonable insured would be aware that his notification duty under the policy has been triggered.

Id. at 1232. The loss manifests when appreciable damage occurs, not when the extent of the damage is known by the insured. Campanelli v. Allstate Life Ins. Co., 322 F.3d 1086, 1094 (9th Cir.2003). “[Ijnsurers whose policy terms commence after initial manifestation of the loss are not responsible for any potential claim relating to the previously discovered and manifested loss.” Prudential-LMI, 274 Cal.Rptr. 387, 798 P.2d. at 1246-47.

Summary judgment was proper in this case. The undisputed facts establish that, [809]*809prior to the effective date of the policy, the walls of the unreinforced masonry building were cracked from the top to the bottom of the building. The cracks had been patched and had reopened. The cracks were large enough that daylight was showing through the cracks. Appreciable damage had occurred, should have been known to the insured, and a reasonable insured would have been aware of the damage prior to the June 1, 2003 start of the policy. Because the loss occurred before the policy began, there is no coverage, and for that reason, it is unnecessary to pass upon the applicability of any policy exclusions.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

***

Duarte & Witting, Inc. and the Eghtesads appeal the district court’s grant of summary judgment in favor of Universal Underwriters Insurance Company. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. Leonel v. Am. Airlines, Inc., 400 F.3d 702, 708 (9th Cir. 2005). We affirm.

Appellants argue that the district court erred by holding that the loss manifested prior to the effective date of the Universal policy. California follows the manifestation rule to determine insurer liability for first party property losses in which the losses progress over several policy periods. Prudential-LMI Com. Ins. v. Super. CL, 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230, 1246 (1990). The date of manifestation or inception of the loss occurs:

when appreciable damage occurs and is or should be known to the insured, such that a reasonable insured would be aware that his notification duty under the policy has been triggered.

Id. at 1232. The loss manifests when appreciable damage occurs, not when the extent of the damage is known by the insured. Campanelli v. Allstate Life Ins. Co., 322 F.3d 1086, 1094 (9th Cir.2003). “[Ijnsurers whose policy terms commence after initial manifestation of the loss are not responsible for any potential claim relating to the previously discovered and manifested loss.” Prudential-LMI, 274 Cal.Rptr. 387, 798 P.2d. at 1246-47.

Summary judgment was proper in this case. The undisputed facts establish that, [809]*809prior to the effective date of the policy, the walls of the unreinforced masonry building were cracked from the top to the bottom of the building. The cracks had been patched and had reopened. The cracks were large enough that daylight was showing through the cracks. Appreciable damage had occurred, should have been known to the insured, and a reasonable insured would have been aware of the damage prior to the June 1, 2003 start of the policy. Because the loss occurred before the policy began, there is no coverage, and for that reason, it is unnecessary to pass upon the applicability of any policy exclusions.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Duarte & Witting, Inc. v. Universal Underwriters Insurance, 291 F. App'x 807 (9th Cir. 2008).

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291 F. App'x 807 (Duarte & Witting, Inc. v. Universal Underwriters Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Vito Campanelli Peggy Campanelli John Caudillo Barbara Caudillo Neil Damrow Gayle Damrow Nancy Durrant Garfield Ecung Debra Ecung George Giakoumakis Mary Lou Giakoumakis Donald Huner Tommie Jenkins Carrie Jenkins Brenda Kalosh Donald Menck Florence Menck Cheryl Mondheim William Noah Terry Noah Roy Rosenblatt Lorraine Rosenblatt Darla Severn Loyal Smith Mildred Stafford Marilyn Taber, and James House Pat House v. Allstate Life Insurance Company, an Illinois Corporation, and Shadowbrook Design Group, Inc., a California Corporation W.S.C., a California Corporation, Dba Western States Construction, Dba Western States Geotechnical, AKA Western States Companies, Vito Campanelli Peggy Campanelli John Caudillo Barbara Caudillo Neil Damrow Gayle Damrow Nancy Durrant Garfield Ecung Debra Ecung George Giakoumakis Mary Lou Giakoumakis James House Pat House Donald Huner Tommie Jenkins Carrie Jenkins Brenda Kalosh Donald Menck Florence Menck William Noah Terry Noah Roy Rosenblatt Lorraine Rosenblatt Darla Severn Loyal Smith Mildred Stafford Marilyn Taber, and Cheryl Mondheim v. Allstate Life Insurance Company, an Illinois Corporation, and Shadowbrook Design Group, Inc., a California Corporation W.S.C., a California Corporation, Dba Western States Construction, Dba Western States Geotechnical, AKA Western States Companies, Vito Campanelli Peggy Campanelli John Caudillo Barbara Caudillo Neil Damrow Gayle Damrow Nancy Durrant Garfield Ecung Debra Ecung James House Pat House Tommie Jenkins Carrie Jenkins Brenda Kalosh Donald Menck Florence Menck Cheryl Mondheim William Noah Terry Noah Roy Rosenblatt Lorraine Rosenblatt Darla Severn Loyal Smith Mildred Stafford Marilyn Taber Donald Huber, and George Giakoumakis Mary Lou Giakoumakis v. Allstate Life Insurance Company, an Illinois Corporation, Vito Campanelli Peggy Campanelli John Caudillo Barbara Caudillo Neil Damrow Gayle Damrow Nancy Durrant Garfield Ecung Debra Ecung George Giakoumakis Mary Lou Giakoumakis James House Pat House Donald Huner Tommie Jenkins Carrie Jenkins Brenda Kalosh Donald Menck Florence Menck Cheryl Mondheim Roy Rosenblatt Lorraine Rosenblatt Darla Severn Loyal Smith Mildred Stafford Marilyn Taber, and William Noah, Terry Noah v. Allstate Life Insurance Company, an Illinois Corporation, and Shadowbrook Design Group, Inc., a California Corporation W.S.C., a California Corporation, Dba Western States Construction, Dba Western States Geotechnical, AKA Western States Companies

322 F.3d 1086 (Ninth Circuit, 2003)

Walber Leonel v. American Airlines, Inc., Richard Branton v. American Airlines, Inc., Vincent Fusco v. American Airlines, Inc.

400 F.3d 702 (Ninth Circuit, 2005)

Prudential-LMI Commercial Insurance v. Superior Court

798 P.2d 1230 (California Supreme Court, 1990)

Opinion

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