Howell v. State Farm Fire & Casualty Co.

218 Cal. App. 3d 1446, 267 Cal. Rptr. 708, 1990 Cal. App. LEXIS 543

• Court: California Court of Appeal
• Decided: March 22, 1990
• Docket: A044405
• Status: Published

Opinions

Opinion

WHITE, P. J.

Plaintiff Barbara Howell appeals after the trial court granted State Farm Fire and Casualty Company’s motion for summary judgment in an action for damages arising from State Farm’s refusal to compensate Ms. Howell for landslide damage to her real property. We reverse.

This case presents two primary issues for our consideration. First, we must decide whether an insurer providing coverage under an “all risk” property insurance policy may contractually exclude coverage when an insured peril is the “efficient proximate cause” of a loss. We conclude that an insurer may not contractually limit its liability in this manner. Secondly, we must determine whether there is a triable issue of fact that the “efficient proximate cause” of the loss in this case was a covered peril (namely, fire). Since we conclude there is a triable issue of fact concerning this issue, we reverse the summary judgment.

Facts

Summary judgment is proper only if there is no triable issue of fact and, as a matter of law, the moving party is entitled to judgment. (Code Civ. Proc., § 437c.) “In reviewing a summary judgment, we are limited to the facts shown in the affidavits and those admitted and uncontested in the pleadings. We determine only whether the facts so shown give rise to a triable issue of fact. [In making this determination] the moving party’s papers are strictly construed, while those of the opposing party are liberally construed.” (Steele v. Totah (1986) 180 Cal.App.3d 545, 549 [225 Cal.Rptr. 635]; see also Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) Viewed in light of these rules, the record discloses the following facts:

Plaintiff and appellant Barbara Howell is the owner of a 17-acre parcel of land in Lafayette, California, which is the site of her home, three rental units, and a commercial dog kennel. At the time of the events pertinent to this appeal, State Farm insured Ms. Howell’s property through five separate policies: a homeowner’s policy for the residence, three identical rental dwelling policies for the rental units, and a commercial policy for the kennel.

The Howell property is located on a slope which is subject to landslides. In the summer of 1985, a fire destroyed much of the vegetation on the slope, and, during the following winter, unusually heavy rains drenched the property. Because of the loss of vegetation, the soils on the denuded slope could not withstand the severe rainfall and a major landslide occurred. According to appellant’s expert, the landslide probably would not have happened had the ground cover been intact. Specifically, the expert’s report concluded: “Although water was the slide’s actuating mechanism, resistance to failure was severely impaired by destruction of the area’s natural biotechnical slope protection. On 6/28/85 the slope that failed was devastated by a fire. The destruction of the vegetation and rooting at the surface caused a[n] adverse modification to the hydrologic regime in the soil. . . . [^] In my opinion, if the vegetation had not been destroyed by the fire, the slope failure . . . probably would not have occurred.” This conclusion was based in part on the fact that no slides had occurred when the vegetation was in place even though there had been greater amounts of rainfall in past years.

Shortly after the landslide occurred, Ms. Howell filed a claim for slide damage under each of her five State Farm policies. In a series of five letters written in the spring of 1986, State Farm denied Ms. Howell’s claims. Each letter stated that the loss was not covered because it was caused by perils (earth movement and water damage) which had been specifically excluded under the policies.

In particular, the homeowners and rental policies each provided coverage against “accidental direct physical loss” to the “dwelling” and “other structures on the residence premises, separated from the dwelling by clear space. ...” The exclusions section of the homeowners policy provided in pertinent part: “We do not insure under any coverage for loss (including collapse of an insured building or part of a building) which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: a) the cause of the excluded event; or b) other causes of the loss; or c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss . . . .” The policy then listed “Earth Movement” and “Water Damage” as specific perils excluded under this section.¹

The exclusion provision of the rental dwelling policies is functionally identical to the homeowner’s exclusion quoted above, except for a slightly different definition of “Earth Movement.”²

The commercial policy provided coverage for “building(s) or structure(s)” against “direct physical loss unless the loss is excluded . . . .” The exclusions section provided in pertinent part: “This policy does not insure against loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. . . . [fl] C. Loss caused by, resulting from, contributed to or aggravated by any of the following: [fl] 1. earth movement . . . [j|] 2. flood, [or] surface water . . . [ft] 4. water below the surface of the ground . . . .”³

After State Farm denied her claims, Ms. Howell filed the instant action for damages. She alleged causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, intentional and negligent misrepresentation, violation of Insurance Code sections 790.2 and 790.3, and breach of fiduciary duty.

State Farm’s answer generally denied the complaint’s allegations and advanced several affirmative defenses, including the policies’ exclusion for earth movement and water damage. As an additional affirmative defense, State Farm contended that it was “informed and believes . . . that there has been no physical loss to any property covered under the policy.”

Subsequently, State Farm filed a motion for summary judgment, contending that Ms. Howell’s policies did not cover her losses because (1) the policies excluded losses resulting from earth movement and water damage; and (2) the policies provided coverage only for physical loss to buildings and structures and the only damage had been to Ms. Howell’s land.

In opposition, Ms. Howell argued that the 1985 fire was the efficient proximate cause of her loss since it had permitted the landslide to occur. Consequently, under Insurance Code section 530 and California case law, the earth movement and water damage exclusions did not bar recovery under the policies. In response to State Farm’s claim that there was no damage to insured property, Ms. Howell contended that there was damage to insured structures and, additionally, State Farm had waived the right to assert the absence of such damage when it failed to raise it in the letters denying coverage.

The superior court granted State Farm’s motion, reasoning that Ms. Howell’s losses were not covered because of the policies’ earth movement exclusion. The court expressly declined to decide whether there had been any damage to insured property.

This timely appeal followed.

Discussion

A. California Law Requires a Property Insurer to Provide Coverage When an Insured Peril Is the Efficient Proximate Cause of a Loss.

State Farm contends that the exclusions contained in its policies preclude recovery by the plaintiff because the loss would not have occurred “but for” an excluded peril (earth movement). Stated simply, the important question presented by this case is whether a property insurer may contractually exclude coverage when a covered peril is the efficient proximate cause of the loss, but an excluded peril has contributed or was necessary to the loss. We conclude that a property insurer may not limit its liability in this manner, since the statutory and judicial law of this state make the insurer liable whenever a covered peril is the “efficient proximate cause” of the loss, regardless of other contributing causes.⁴ Consequently, the policy exclusions at issue in this case are not enforceable to the extent they conflict with California law.

Our analysis of this issue begins with Insurance Code sections 530 and 532. These apparently contradictory sections state: “An insurer is liable for a loss of which a peril insured against was the proximate cause, although a peril not contemplated by the contract may have been a remote cause of the loss; but he is not liable for a loss of which the peril insured against was only a remote cause.” (Ins. Code, § 530.)

“If a peril is specially excepted in a contract of insurance and there is a loss which would not have occurred but for such peril, such loss is thereby excepted even though the immediate cause of the loss was a peril which was not excepted.” (Ins. Code, § 532.)

The apparent conflict between these two sections was resolved by the Supreme Court in Sabella v. Wisler (1963) 59 Cal.2d 21 [27 Cal.Rptr. 689, 377 P.2d 889]. There the insureds’ home was damaged when water escaping from a negligently installed sewer pipe caused the home’s foundation to settle. The insureds’ policy covered damage caused by negligence but excluded loss caused by settlement. (Id., at pp. 23-27.) The Supreme Court held that the insurer was liable for the loss under the following general rule: “ ‘[I]n determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause—the one that sets others in motion—is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.’ ” (Id., at pp. 31-32, quoting from Couch on Insurance (1930) § 1466; see also Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 402 [257 Cal.Rptr. 292, 770 P.2d 704].)

In Sabella, the insurer advanced an argument which is conceptually identical to that advanced by State Farm in this case. There, the insurer contended it was not liable because settlement was a necessary link in the chain of causation leading to the loss. However, instead of relying on the language of the policy exclusion to support its argument—as State Farm does in the present case—the insurer in Sabella relied on the “but for” language of Insurance Code section 532. In rejecting the insurer’s contention the Supreme Court stated: “It is . . . apparent that if section 532 were construed in the manner contended for by defendant insurer, where an excepted peril operated to any extent in the chain of causation so that the resulting harm would not have occurred ‘but for’ the excepted peril’s operation, the insurer would be exempt even though an insured peril was the proximate cause of the loss. Such a result would be directly contrary to the provision in section 530, in accordance with the general rule, for liability of the insurer where the peril insured against proximately resulted in the loss . . . .” (Id., at p. 33, italics added.) Consequently, the Supreme Court harmonized Insurance Code sections 530 and 532 by construing the “but for” clause of section 532 to mean a “proximate cause” of the loss, and the “immediate cause” to mean the cause most immediate in time to the damage. (Id., at pp. 33-34; see also Garvey, supra, 48 Cal.3d at p. 402.)

Similarly, in the present case, if we were to give full effect to the exclusion clauses contained in State Farm’s policies “the insurer would be exempt even though an insured peril was the proximate cause of the loss. Such a result would be directly contrary to the provision in section 530, in accordance with the general rule, for liability of the insurer where the peril insured against proximately resulted in the loss . . . .” (Sabella, supra, 59 Cal.2d at p. 33.) In short, the exclusion clauses are contrary to Insurance Code section 530, which provides that an insurer “is liable for a loss” proximately caused by a covered peril. Consequently, the exclusion clauses are not enforceable to the extent they purport to limit the insurer’s liability beyond what is permitted by California law.

Subsequent cases applying Sabella show that our interpretation of that case is correct. In Sauer v. General Ins. Co. (1964) 225 Cal.App.2d 275 [37 Cal.Rptr. 303], leaking water pipes caused the earth under the plaintiffs’ house to sink and its foundation to settle. The plaintiffs’ insurance policy covered loss caused by plumbing leakage but excluded loss “ ‘caused by, resulting from, contributed to, or aggravated by’ ” earth movement or water, and also excluded loss by settling. (Id., at pp. 276-277.) The trial court found that earth movement had “contributed to” and “aggravated” the damage, and concluded the insurer was not liable. The Court of Appeal reversed. Relying on Sabella, the court held that the policy covered the loss because the “efficient proximate cause” of the damage was the covered plumbing leak. (Id., at pp. 278-280.) The court reached this result despite the language in the policy excluding liability where earth movement had been a factor in the loss.

Similarly, in Gillis v. Sun Ins. Office, Ltd. (1965) 238 Cal.App.2d 408 [47 Cal.Rptr. 868, 25 A.L.R.3d 564], a windstorm lifted a gangway into the air and dashed it violently into a docking facility, causing the dock to sink into the water, where it broke up under the pounding of the waves. (Id., at pp. 410-411, 416-417.) The insurance policy covered losses caused by the wind but excluded damage “ ‘caused by, resulting from, contributed to or aggravated by’” water. (Id., at pp. 415-416.) In what we believe is an overly technical opinion, the court concluded the exclusionary language in the policy could not protect the insurance company, at least where the action of the peril insured against preceded and operated through an excluded peril to cause the damage. (Id., at pp. 419-421, 423-424.)

The insurer in Gillis argued that the damage to the dock was “contributed to or aggravated by” water and hence was not covered. The company further contended that the “contributed to or aggravated by” exclusionary language precluded application of Sabella's proximate cause doctrine and barred recovery if an excluded peril played any part, no matter how small, in producing the loss. (238 Cal.App.2d at p. 419.)

The appellate court rejected this argument. Although the court recognized that, as a factual matter, the water had “contributed to or aggravated” the damage to the dock, it nevertheless concluded Sabella imposed liability since the fall of the gangway “was the start of a chain of events which permitted the waves to cause damage to the float.” (238 Cal.App.2d at p. 419.) According to the court, it was proper to apply the Sabella-Sauer proximate cause analysis because the wind “creatfed] a condition that permitted natural forces, which alone may have caused no damage, to effect the damage for which recovery is sought.” (Id., at p. 421.) Consequently, the court applied the Sabella-Sauer analysis despite the language of the policy which, on its face, appeared to preclude that analysis.

More recently, the Sabella analysis was applied in Premier Ins. Co. v. Welch (1983) 140 Cal.App.3d 720 [189 Cal.Rptr. 657]. In that case, the plaintiffs’ hillside home slid off its foundation during a heavy rainy season because the subdrain, negligently damaged when the house was built, could not accommodate the runoff, which saturated the fill under the house and caused the slide. The parties stipulated that the slide would not have occurred if the drain had not been damaged. (Id., at pp. 722-723.)

The plaintiffs’ insurance policy covered negligence but excluded loss “caused by, resulting from, contributed to or aggravated by” surface or subsurface water or “water which backs up through sewers or drains . . . .” (140 Cal.App.3d at p. 723.) The trial court concluded that the heavy rainfall was the efficient proximate cause of the landslide, and that the loss was excluded. (Ibid.) The Court of Appeal reversed and held the insurer liable. Relying on Sabella, the court applied “the settled principle that where, as here, the loss occurs through a concurrence of covered and uncovered risks, the insurer’s liability under the policy depends on whether the efficient cause of the loss (that is the cause that sets the others in motion) is a covered peril. If it is, the insurer will be held liable even though other exempted causes also contribute to the loss.” (Id., at pp. 724-725.) Thus, in Premier, as in Sauer and Gil lis, the court held that the causation analysis was controlled by Insurance Code section 530 and Sabella, not the specific exclusionary language contained in the policy.

Finally, the Supreme Court recently reaffirmed the Sabella proximate cause analysis in Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d 395. In Garvey, the plaintiffs’ home was damaged when an addition, built in the early 1960’s, began to pull away from the main structure. (Id., at p. 400.) The conflicting evidence suggested that the damage was caused by negligent construction, earth movement, or a concurrence of both. (Id., at p. 412.) The plaintiffs’ homeowner’s policy provided coverage for negligence but excluded losses “caused by, resulting from, contributed to or aggravated by any earth movement . . . .” (Id., at p. 399.) The Supreme Court reversed a directed verdict in favor of the plaintiffs, because the trial court had applied the “concurrent causation” approach articulated in State Farm Mut. Auto. Ins Co. v. Partridge (1973) 10 Cal.3d 94 [109 Cal.Rptr. 811, 514 P.2d 123], (48 Cal.3d at pp. 398-399, 401, 412.) The Supreme Court held that the Partridge concurrent causation analysis should not be applied to so-called “first party” property insurance cases. Instead the Supreme Court strongly reaffirmed the application of the Sabella analysis to cases where an insured is seeking coverage against loss or damage which he himself has sustained. (Id., at pp. 399, fn. 2, 404.) The court stated: “Sabella ... set forth a workable rule of coverage that provides a fair result within the reasonable expectations of both the insured and the insurer whenever there exists a causal or dependent relationship between covered and excluded perils.” (Id., at p. 404, italics supplied.) Consequently, the Supreme Court remanded the case to the trial court so that the jury could determine coverage under & Sabella efficient proximate cause analysis. (Id., at pp. 412-413.) Once again, as in Sauer, Gillis and Premier, the Supreme Court did not look to the specific exclusionary language of the policy, but instead held that the case was governed by the general principles articulated in Sabella.

In our view, Insurance Code section 530, as interpreted by Sabella and its progeny, requires a property insurer to provide coverage whenever an insured peril is the “efficient proximate cause” of the loss.⁵ (See Villella v. PEMCO (1986) 106 Wn.2d 806, 816-819 [725 P.2d 957, 962-964], where the Washington Supreme Court interpreted and applied Sabella and its progeny.) Consequently, the exclusionary provisions contained in the contracts at issue are not enforceable to the extent they purport to limit the insurers’ liability beyond what is permitted by section 530 and its interpreting cases.⁶

State Farm relies on a lower federal court case to support its contention that it may contractually exclude coverage whenever an uninsured peril is a “but for” cause of a loss. In that case—State Farm Fire and Cas. Co. v. Martin (C.D. Cal. 1987) 668 F.Supp. 1379—a federal district court judge concluded that Sabella and Insurance Code section 530 do not prevent an insurer from contractually excluding coverage where an insured peril is merely a concurrent cause of the loss.⁷

In Martin, the insureds argued that their home was damaged by earth movement (an excluded peril) and sulfate attack of the foundation (an insured peril). (668 F.Supp. at pp. 1380, 1383.) The homeowners policy excluded coverage “for any loss that would not have occurred in the absence of. . . earth movement . . . ‘regardless of . . . any other causes, or whether other causes acted concurrently or in any sequence with the excluded event to produce the loss.’” (Id., at p. 1382.) The federal district court concluded that this provision was sufficient to exclude coverage even if the covered peril had contributed to the loss. Rejecting the insureds’ argument that Sabella and Insurance Code section 530 preempted the exclusionary language in the contract, the court stated: “The court in Sabella was addressing the construction and applicability of section 532 of the statute. Here, the insurance policy itself expressly and explicitly includes in its language a provision which states that for certain causes, the ‘but for’ argument raised by the insurer in Sabella will apply to limit coverage. While the court in Sabella would not extend the statute so as to imply such restrictions on coverage of concurrent causes, there is nothing in the law denying the insurer the right to include such language as a term of the contract itself.” (Ibid., second italics added.)

We note first that the Martin decision appears to apply only to “concurrent causes,” and not to “efficient proximate causes” as defined in Sabella. That is, Martin holds that an insurer may contractually limit liability where a covered peril is merely a “concurrent cause” of the loss; Martin does not address whether the insurer may exclude coverage when an insured peril is the “efficient proximate cause” of the loss, as that term is defined in Sabella. (See State Farm Fire and Cas. Co. v. Martin, supra, 872 F.2d at p. 321.)

Moreover, to the extent Martin purports to permit an insurer to deny coverage where an insured peril is the “efficient proximate cause” of the loss, it contradicts Sabella since “[s]uch a result would be directly contrary to the provision in section 530, in accordance with the general rule, for liability of the insurer where the peril insured against proximately resulted in the loss . . .” (Sabella, supra, 59 Cal.2d at p. 33.) In addition, Martin completely ignores Sauer, Gillis, and Premier, where the courts applied the Sabella efficient proximate cause analysis despite the presence of specific exclusionary language not present in the Sabella contract.

In short, Martin does not specifically hold that an insurer may contractually exclude coverage even though an insured peril is the efficient proximate cause of the loss. Furthermore, to the extent Martin can be read to permit an insurer to limit liability in this manner it is contrary to California law and we decline to follow it. (People v. Bradley (1969) 1 Cal.3d 80, 86 [81 Cal.Rptr. 457, 460 P.2d 129].)

Finally, we note that the result we reach should hardly come as a surprise to State Farm. In a 1985 article, one of State Farm’s assistant counsel acknowledged in a law journal article that “[a]n open question remains whether sections 530 and 532 can be successfully altered by contract language. . . . [T]he possibility cannot be ignored that the courts will declare sections 530 and 532 so entrenched in the law of property insurance that they now represent the public policy of the state and cannot be contractually circumscribed.” (Bragg, Concurrent Causation and the Art of Policy Drafting: New Perils for Property Insurers (1984) 20 Forum 385, 397-398.)

We need not, as the author suggests, find that Insurance Code section 530 is “so entrenched” that it represents the public policy of this state. The simple truth—which State Farm insists on ignoring—is that this provision is a part of the statutory law of this state and is applicable to all insurers who issue “all risk” policies. For this simple reason, the exclusions contained in the policies at issue are not enforceable to the extent they violate Insurance Code section 530. Because we reach this conclusion, we need not address appellant’s alternative argument that the exclusionary language in the policies is so unclear that it is unenforceable.

B. There Is a Triable Issue of Fact That the Fire Was the Efficient Proximate Cause of the Loss.

State Farm next contends that even if we apply the Sabella efficient proximate cause analysis, the uncovered peril (earth movement) was the “efficient proximate cause” as a matter of law, and hence summary judgment was properly granted. We disagree.⁸

Sabella defined “efficient proximate cause” as “ ‘the one that sets others in motion’ ” and as “the predominating or moving efficient cause.” (Sabella, supra, 59 Cal.2d at pp. 31-32; Garvey, supra, 48 Cal.3d at p. 403.) Although this definition lacks precision, what is clear after Garvey is that the issue of efficient proximate causation is a question of fact for the jury. (Garvey, supra, 48 Cal.3d at pp. 412-413, fn. 11.)

Here, appellant’s geotechnical expert stated in his report that “[ajlthough water was the slide’s actuating mechanism, resistance to failure was severely impaired by destruction of the area’s natural biotechnical slope protection. On 6/28/85 the slope that failed was devastated by a fire. The destruction of the vegetation and rooting at the surface caused a[n] adverse modification to the hydrologic regime in the soil, [fl] In my opinion, if the vegetation had not been destroyed by fire, the slope failure between the houses on Via Media probably would not have occurred. Many other failures of ancient landslide deposits took place in years immediately preceding the fire, for instance during March 1983 following two consecutive years of abnormally heavy rainfall. The slope that burned in 1985 did not fail in prior years of greater rainfall. ” (Italics added.)

In our view, this expert opinion is sufficient to raise a triable issue of fact that the fire was the efficient proximate cause of the landslide.⁹ Based on this evidence, a reasonable juror could find that the burning of the slope was the “predominating cause” or the one that set the others in motion.

Conceptually, the facts here are similar to those in Gillis v. Sun Ins. Office, Ltd.., supra, 238 Cal.App.2d 408, which was cited with approval in Garvey. (48 Cal.3d at p. 404.) As we discussed in our analysis above, in Gillis a windstorm lifted a gangway into the air and dashed it violently into a docking facility, causing the dock to sink into the water, where it broke up under the pounding of the waves. (238 Cal.App.2d at pp. 410-411, 416-417.) The insurance policy covered losses caused by the wind but excluded damage caused by water. (Id., at pp. 415-416.) The appellate court nevertheless concluded Sabella imposed liability since the fall of the gangway “was the start of a chain of events which permitted the waves to cause damage to the float. . . .” (Id., at p. 419.) According to the court, it was proper to apply the Sabella-Sauer proximate cause analysis because the wind “creat[ed] a condition that permitted natural forces, which alone may have caused no damage, to effect the damage for which recovery is sought.” (Id., at p. 421.) Similarly, it can be argued here that the fire “creat[ed] a condition that permitted natural forces, which alone may have caused no damage, to effect the damage for which recovery is sought.” (Ibid.)

Since there was a triable issue of fact concerning the “efficient proximate cause” of the slide, summary judgment was improper.

C. There Is a Triable Issue of Fact That the Landslide Damaged Insured Structures.

State Farm finally contends that the summary judgment may be affirmed on the alternative ground that Ms. Howell failed to produce evidence that the landslide had damaged insured buildings or other structures.¹⁰ We disagree.

The policies issued by State Farm insured against “direct physical loss” to the “dwellings,” “buildings,” and “other structures” on the premises.

State Farm’s own investigator testified in a deposition that he had examined the property in February 1986, and determined that a recent landslide had caused “minor damage” to a kennel building. In addition, the investigator took and authenticated pictures showing that the landslide had flowed over or through a retaining wall, and had blocked or damaged private roads on the property. Significantly, the investigator was unaware of the existence or location of any boundaries between the various portions of Ms. Howell’s property covered by the five different policies.

Thus, at a minimum, there is a triable issue of fact that the landslide caused physical damage to the kennel building, the retaining wall, and the private roads on the property.

State Farm has not disputed Ms. Howell’s contention that the retaining wall and private road are “other structures” within the meaning of the policies. Instead, they contend that Ms. Howell is seeking compensation only for the loss in value of her land resulting from her inability to subdivide the property. This is untrue. Ms. Howell’s opposition to the motion for summary judgment makes it very clear that she is seeking recovery for damage to insured buildings and structures. State Farm’s argument to the contrary is based on a distortion of Ms. Howell’s testimony and ignorance of the rules governing summary judgment, which require us to view the affidavits and other evidence in the light most favorable to the nonmoving party. (Steele v. Totah, supra, 180 Cal.App.3d at p. 549; see also Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107.)

In sum, we conclude there is a triable issue of fact that the landslide caused direct physical damage to buildings and “other structures” on the insured premises. Consequently, summary judgment may not be supported on this ground. Because we reach this conclusion, we need not address Ms. Howell’s alternative arguments that there is a triable issue of fact that the landslide threatens the stability of insured buildings and structures, and that State Farm waived any defense based on absence of damage.

Disposition

The judgment is reversed, and the case is remanded to the trial court for proceedings consistent with the views expressed in this opinion. Costs on appeal are awarded to appellant. (Cal. Rules of Court, rule 26(a).)

Merrill, J., concurred.

1 The pertinent exclusion provision provided in full: “2. We do not insure under any coverage for loss (including collapse of an insured building or part of a building) which would not have occurred in the absence of one or more of the following excluding events. We do not insure for such loss regardless of: a) the cause of the excluded event; or b) other causes of the loss; or c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss:...[]]] b. Earth Movement, meaning any loss caused by, resulting from, contributed to or aggravated by earthquake; landslide; mudflow; sinkhole; erosion; the sinking, rising, shifting, expanding or contracting of the earth. Earth movement also means volcanic eruption, explosion or effusion, except as provided in Additional Coverages for Volcanic Action. [U] We do insure for direct loss by fire, explosion other than explosion of a volcano, theft, or breakage of glass or safety glazing materials resulting from earth movement. [H] Water Damage, meaning: [U] (1) flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind; [U] (2) water which backs up through sewers or drains or water which enters into and overflows from within a sump pump, sump pump well or other type system designed to remove subsurface water which is drained from the foundation area; or [H] (3) natural water below the surface of the ground. This includes water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure. [1J] However, we do insure for direct loss by fire, explosion, or theft resulting from water damage.”

2 The pertinent exclusion in the rental policy provided in full: “2. We do not insure for loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: a) the cause of the excluded event; or b) other causes of the loss; or c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss. . . . [H] b. Earth Movement, whether combined with water or not including but not limited to earthquake, volcanic eruption, landslide, subsidence, mudflow, sinkhole, erosion, or the sinking, rising, shifting expanding or contracting of earth. [H] However, we do insure for direct loss by fire, explosion, theft or breakage of glass or safety glazing materials resulting from earth movement. []]] (c) Water Damage, meaning: [1]] flood, surface water, waves, tidal water, overflow of a body of water or spray from any these, whether or not driven by wind; [1|] (2) water which backs up through sewers or drains; or [K] (3) natural water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure, [fl] However, we do insure for direct loss by fire, explosion, or theft resulting from water damage.”

3 The pertinent exclusion provision in the commercial policy provided in full: “1. This policy does not insure against loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. . . . [1J] C. Loss caused by, resulting from, contributed to or aggravated by any of the following: [1]] 1. earth movement, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising or shifting; [U] 2. flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not; [lj] 3. water which backs up through sewers or drains; or []]] 4. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors, or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors; [fl] unless fire or explosion as insured against ensues, and then this Company shall be liable for only loss caused by the ensuing fire or explosion but these exclusions shall not apply to loss arising from theft.”

4 We note that there is a difference between the policies at issue in this case. While the homeowners and commercial policies exclude coverage whenever earth movement merely contributes to or aggravates the loss (see fns. 1, 3, ante), the rental policy seems to exclude coverage only when earth movement is a “but for” cause of the loss (see fn. 2, ante).

This distinction is irrelevant for our purposes since we conclude that an insurer must provide coverage whenever a covered peril is the “efficient proximate cause” of the loss. Once this fact is established, it is irrelevant whether the excluded peril is a “but for” cause of the loss, or merely a contributing or aggravating factor.

5 Although our concurring colleague reaches an essentially identical conclusion, she does so by following an unnecessarily tortuous route. (See cone. opn. of Barry-Deal, J., p. 1476 [“I would . . . hold that where an insurer chooses to insure against the direct and proximate results of a certain peril, it may not rely on the concurrence of an excluded cause to deny coverage.”].) Justice Barry-Deal chooses to cast the issue as one of contractual interpretation, rather than as one involving the application of a well-established mandatory causation analysis. Although Justice Barry-Deal’s analysis might have been necessary before Sabella, we believe that Sabella itself and the cases applying the Sabella rule make it clear that section 530 is more than a mere aid to contractual interpretation. As interpreted by Sabella, section 530 affirmatively states that an insurer is liable on an “all risk” insurance policy when a covered peril is the “efficient proximate cause” of the loss. (See discussion, pp. 1452-1456, ante.)

Although we do not think Justice Barry-Deal’s approach is necessary in this case, we cannot strongly object to her reasoning since she concludes that even clear and unambiguous language is insufficient to alter the deeply entrenched efficient proximate cause analysis. (Cone. opn. of Barry-Deal, J., pp. 1461-1462, 1467, post.) Consequently, the effect under either analysis is the same: “all risk” insurers must provide coverage when a covered peril is the efficient proximate cause of a loss, regardless of the exclusionary language used.

Nevertheless, we think Justice Barry-Deal is inviting mischief when she states that she does “not agree that. . . section 530 . . . compels that result in every case regardless of policy language . . . .” (Cone. opn. of Barry-Deal, J., at pp. 1461-1462, post.) In our view, this would be an open invitation to insurance companies to continue tinkering with their policy language in the hope that they will stumble across the magic formula which will absolve them of liability. The approach we take in the majority opinion forecloses this possibility and consequently increases certainty and predictability for both the insured and the insurer.

6 Indeed, if we were to give full effect to the State Farm policy language excluding coverage whenever an excluded peril is a contributing or aggravating factor in the loss, we would be giving insurance companies carte blanche to deny coverage in nearly all cases. A similar point was made by the Supreme Court in Garvey. There, the court noted that the insured cannot be permitted to claim coverage merely because an included peril is a contributing cause of a loss. The court reasoned that since “[i]n most instances, the insured can point to some arguably covered contributing factor” such a rule would transform an “ ‘all-risk’ ” policy into an “ ‘all-loss’ ” policy, and would make the insurer liable in almost every case. (Garvey, supra, 48 Cal.3d at p. 408.)

The present case presents the inverse situation. Here, the State Farm policies would deny coverage whenever an excluded peril is a contributing factor to the loss. Since, in most instances, an insurer can point to some arguably excluded contributing factor, this rule would effectively transform an “all-risk” policy into a “no-risk” policy. (See also conc. opn. of Barry-Deal, J., at p. 1475, post.)

7 Martin was affirmed by the Ninth Circuit in State Farm Fire and Cas. Co. v. Martin (9th Cir. 1989) 872 F.2d 319. However, since the circuit court essentially summarized and adopted the district court’s reasoning on this point, we focus our analysis on the lower court’s decision.

8 In her opening brief, Ms. Howell also argued there was a triable issue of fact concerning whether the fire was a concurrent proximate cause of the loss under State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d 94. Garvey v. State Farm Fire & Casualty Co., supra, now holds that the Partridge “concurrent” proximate cause analysis applies only to third party liability claims. (48 Cal. 3d at pp. 404-411.) Consequently, Ms. Howell has abandoned her argument based on Partridge.

9 State Farm contends that the expert’s report and attached affidavit were inadmissible below and cannot be considered by this court because (1) they did not establish that the expert was qualified to render an opinion on the issue of causation and (2) the expert failed to establish that his opinion was based on personal knowledge or on information of the type commonly relied upon by experts in his profession.

Although State Farm made these same objections below, it never obtained a ruling on them from the trial court. In these circumstances, State Farm is deemed to have waived those objections.

The summary judgment statute provides: “In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . .” (Code Civ. Proc., § 437c, subd. (c).) This provision, a 1980 amendment effective in 1981, eliminated a previous requirement that a court ruling on a summary judgment consider admissible evidence only. (Review of Selected 1980 California Legislation (1980-1981) 12 Pacific L.J. 291-292.) This change brought evidence rules in summary judgment cases into conformity with principles of trial evidence, which require a party who opposes admission to raise an objection and to make an effort to have the court rule on it. If a party fails to seek a ruling, he is deemed to have waived the objection. (3 Witkin, Cal. Evidence (1986) Introduction of Evidence at Trial, § 2030, pp. 1992-1993.)

10 The trial court explicitly declined to rule on this factual issue.