270_C276

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EFFICIENT PROXIMATE CAUSE DOCTRINE DID NOT APPLY TO THIRD PARTY CASE

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Insurance Company of the State of Pennsylvania (ISOP) insured the City of Carlsbad (City) under a general liability policy that covered bodily injury and property damage losses to third parties resulting from City's negligence. It defined property damage as "physical injury to or destruction of tangible property, including all resulting loss of use of that property." However, an exclusion provided that ISOP would not defend or pay for claims or suits brought against City for property damage arising out of land subsidence for any reason whatsoever. The definition of land subsidence included landslide.

 

As a result of City's negligent maintenance and repair of a fire hydrant and water line located within the La Costa de Marbella Condominium Complex (Marbella), an earthen slope above it became saturated with water and failed. The resulting landslide damaged or destroyed 15 units and part of the common area. The Marbella Homeowners Association sued City, seeking damages for property damage and emotional distress. ISOP defended under a reservation of rights. City settled the lawsuits for $12,670,000. ISOP indemnified City for the bodily injury claims but denied coverage for the property damage claims. City sued ISOP, alleging breach of contract and breach of the implied covenant of good faith and fair dealing.

 

Both parties filed motions for summary judgment. City asserted that it was entitled to indemnification under the "concurrent causation doctrine" because the exclusion did not explicitly negate coverage that resulted from more than one cause, that the exclusion was illegal, and that it did not apply to landslides caused by man-made forces. ISOP argued that the exclusion unambiguously applied to all property damage arising out of landslide, that the concurrent proximate cause doctrine did not apply because there were not two separate and independent acts of negligence to cause the damage, and that the exclusion applied even if the concurrent proximate cause doctrine applied.

 

The trial court heard the motions together, denied City's in its entirety, and granted ISOP's in its entirety. City appealed on essentially the same basis as its initial motion. It asserted that the trial court erred because the exclusion was ambiguous as to whether it covered landslides regardless of cause, that it did not apply to landslides caused by man-made forces, and that it was entitled to indemnification under the "efficient proximate cause" doctrine and related Insurance Code. The Court of Appeal determined that, based on the evidence, there was no need to interpret policy language and that the issue was a pure question of law.

 

Under the "efficient proximate cause doctrine," when a loss is caused by a combination of covered and specifically excluded perils, it is covered if the covered peril was the efficient proximate cause of the loss. On the other hand, the loss is not covered if the covered peril was only a remote cause of the loss, or the excluded peril was the efficient proximate, or predominant, cause. An insurance company is liable for a loss where a peril insured against was the proximate cause, although a peril not contemplated by the policy may have been the remote cause of the loss; but is not liable for a loss where the peril insured against was only a remote cause. However, this doctrine is limited to first party cases, where an insured seeks coverage for its own property interests. In third party cases like this one, where coverage is sought for liability to third parties, the concurrent proximate cause doctrine applies. As a result, the first party cases that applied the "efficient proximate cause doctrine" that City relied on were irrelevant to the appellate court's analysis. City did not assert coverage under the concurrent proximate cause doctrine that applies to third party cases. Even if it had, it would not have applied because it applied only where there were two negligent acts or omissions, one of which independent of the excluded cause rendered the insured liable for the resulting injuries. The Court of Appeal affirmed the trial court's judgment in all respects.

 

Court of Appeal, Fourth District, Division 1, California. City of Carlsbad, et al., Plaintiffs and Appellants, v. Insurance Company of the State of Pennsylvania, Defendant and Respondent. No. D053843. Nov 20, 2009. 180 Cal.App.4^th 176. 102 Cal.Rptr.3d 535