Stanford Law School - Robert Crown Law Library

Filed 8/29/05 (this opn. should appear after S113295, also filed this date)

IN THE SUPREME COURT OF CALIFORNIA

COUNTY OF SAN DIEGO,
Cross-complainant and Appellant, )
S114778
v.
Ct.App. 4/1 D038707
ACE PROPERTY & CASUALTY
San Diego County
INSURANCE COMPANY et al.,
Super. Ct. No. GIC732418
Cross-defendants and Respondents, )

INTRODUCTION
In this matter we must determine whether a nonstandard “excess” third
party liability policy issued by Ace Property & Casualty Insurance Company
(Ace) to the County of San Diego (County) affords indemnity coverage for
expenses incurred by the County in responding to an administrative agency order
requiring it to remediate environmental contamination, and for sums expended by
the County to settle related third party property damage claims outside the context
of a lawsuit.
In Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24
Cal.4th 945 (Powerine I), we held that under the wording of the standard primary
comprehensive general liability (CGL) policy, the term “damages” limits the
insurer’s indemnification obligation to “money ordered by a court,” i.e., a money
judgment entered against the insured in a third party suit for damages. (Id. at
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pp. 960, 964.) We went on to conclude that the duty to indemnify does not extend
to the costs of complying with a governmental agency’s environmental cleanup
and abatement orders because such administratively imposed liabilities do not
constitute “money ordered by a court.” (Id. at p. 966.)
The central insuring provision in the policy at issue here likewise obligates
Ace to indemnify the County for all sums the insured becomes obligated to pay by
reason of liability imposed by law for “damages” resulting from the destruction or
loss of use of tangible property. The trial court concluded that the term “damages”
is controlling and limits the indemnification obligation in the policy to court-
ordered money judgments in the same way this court concluded the term
circumscribes the scope of coverage under the standard primary CGL policy
examined in Powerine I. The Court of Appeal agreed with the trial court’s
reasoning and affirmed its judgment. For reasons to follow, we agree with the
lower courts’ interpretation of the operative term “damages” in Ace’s nonstandard
policy. Accordingly, we shall affirm the judgment of the Court of Appeal.
We reach a contrary conclusion in another decision also filed today—
Powerine Oil Company, Inc. v. Superior Court (Central National Insurance
Company of Omaha) (Aug. 29, 2005, S113295) ___ Cal.4th ___(Powerine II)—
because the literal insuring language of the excess/umbrella policies at issue in that
case is materially different than the insuring language in the Ace excess policy and
the standard primary CGL policy considered in Powerine I.
FACTUAL AND PROCEDURAL BACKGROUND
The County as cross-complainant appealed from a judgment entered against
it after the trial court granted the summary adjudication and summary judgment
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motions of cross-defendant Ace.1 The County contended that the trial court
misinterpreted ACE’s nonstandard excess third party liability policy as not
providing coverage for the County’s settlements of nonlitigated claims, including
an administrative order to remediate groundwater contamination and third party
property damage claims arising from the contamination. Specifically, the County
asserted that the trial court erred by applying Powerine I, supra, 24 Cal.4th 945, in
which this court held that the term “damages” in the insuring clause of the
standard CGL policy is limited to “money ordered by a court.” (Id. at pp. 960,
964.)
The ACE policy here in issue is commonly referred to in insurance industry
parlance as a nonstandard or “manuscript form” policy. (See Croskey et al., Cal.
Practice Guide: Insurance Litigation (The Rutter Group 2004) § 3:38, p. 3-7.) It
was in effect from 1974 through 1977. The policy requires Ace to indemnify the
County “for all sums which the insured is obligated to pay by reason of liability
imposed by law or assumed under contract or agreement,” arising from “damages”
caused by personal injuries or the destruction or loss of use of tangible property.
Additional pertinent policy provisions are set forth and discussed in detail below.
The following factual background was set forth in the opinion of the Court
of Appeal. In 1969 the County began operating a solid waste facility known as the
Ramona Landfill. The Ramona Landfill overlies potable groundwater, and in
1970 the Regional Water Quality Control Board (Regional Water Board) imposed
operational requirements on the County.
In March 1997, the Regional Water Board issued a cleanup and abatement
order to the County, requiring it to investigate, monitor and remediate

1
The named cross-defendants also included Ace’s predecessor companies,
Cigna Property & Casualty Company and Aetna Insurance Company.
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groundwater contamination caused by the Ramona Landfill. The County waived a
hearing before the board to challenge imposition of the remedial cleanup order.
In June 1997, the owners of property (the Sossamans) near the Ramona
Landfill complained to the County that groundwater contamination would affect
the property’s marketability and their physical and mental health. The Sossamans
requested that the County purchase their property without the necessity of
litigation. The County believed it more likely than not that the Sossamans’
property was contaminated. It had the property appraised “and preliminary
negotiations including the preparation of necessary transfer documentation [were]
initiated.” The Atkinsons, also property owners near the Ramona Landfill, filed a
similar claim in 1997.
In November 1997, the County settled the Sossamans’ claims by paying
them $318,000 for the acquisition of their property and relocation benefits. In
December 1998, the County settled the Atkinsons’ claims by paying them
$259,500 for the acquisition of their property and relocation benefits.
In May 1997, the County began seeking indemnification from Ace for costs
of complying with the remedial cleanup order. Ace reserved its right to deny
coverage on numerous grounds, including the absence of any third party lawsuit.
In September 1997, the County began seeking indemnification from Ace for the
Sossaman and Atkinson claims. Regarding these claims, none of the
correspondence between the County and Ace is included in the appellate record.
Ace never indemnified the County for any of the settlements.
The County then filed a cross-complaint against Ace in a declaratory relief
action brought against the County by another of its insurers, Pacific Indemnity
Company.1 The County’s first amended cross-complaint included causes of

1
Pacific Indemnity Company obtained summary judgment in its favor and is
not involved in this appeal.
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action for declaratory relief, express indemnity, breach of contract and breach of
the implied covenant of good faith and fair dealing. In the breach of contract
cause of action, the County alleged Ace breached its duty to indemnify the County
for losses it incurred in complying with the Regional Water Board’s remedial
cleanup order and in settling the Sossaman and Atkinson claims. In its cause of
action for breach of the implied covenant of good faith and fair dealing, the
County alleged, among other things, that Ace failed to “attempt[] in good faith to
effectuate a prompt, fair and equitable settlement of the County’s claims for
indemnification although liability had become reasonably clear” and failed “to pay
indemnification benefits to the County pursuant to said claims.”
In an affirmative defense to the cross-complaint, Ace alleged it had no duty
to indemnify the County for costs incurred in complying with the remedial cleanup
order or settling the Sossaman and Atkinson claims because the controlling term
“damages” in the insuring clause of the policy limited coverage to money
judgments imposed against the insured in a court of law. The County moved for
summary adjudication on this affirmative defense. The trial court initially granted
the County’s motion, determining that the “language of the policy suggests a
reasonable interpretation that the County need not suffer a judgment before
[Ace’s] duty to indemnify takes effect.”
Ace moved for reconsideration of the ruling on the County’s motion for
summary adjudication, based on the decision in Powerine I, supra, 24 Cal.4th 945.
On the same ground, Ace also moved for summary adjudication of its duty to
indemnify the County for its costs and expenses of complying with the Regional
Water Board’s remedial cleanup order. On reconsideration, the trial court
reversed its ruling and denied the County’s motion for summary adjudication. The
court then granted Ace’s motion for summary adjudication of its duty to indemnify
the County for the costs and expenses of complying with the remedial cleanup
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order. The court determined that despite the nonstandard nature of the Ace policy,
under Powerine I, supra, 24 Cal.4th 945, Ace’s duty of indemnity was limited to
“damages” imposed in a court suit, i.e., “money ordered by a court.” (Id. at
pp. 960, 964.)
The County in turn moved for reconsideration of the trial court’s order
granting Ace’s motion for summary adjudication. Ace countered with a motion
for summary judgment on the question whether it had a duty to indemnify the
County for the costs of the Sossaman and Atkinson settlements. The trial court
denied the County’s motion for reconsideration and granted Ace’s summary
judgment motion, explaining “[t]here is no duty to indemnify [the] County for the
so-called ‘private property expenses’ (purchase and moving expenses) because
they were not ‘money ordered by a court.’ ” Judgment was entered for Ace in
July 2001.
The Court of Appeal affirmed the trial court’s judgment, determining that
the motions for summary adjudication and summary judgment were properly
granted in the insurer’s favor. The court held that under this court’s decision in
Powerine I, supra, 24 Cal.4th 945, the term “damages” in the insuring provisions
of Ace’s policy limits the duty to indemnify to money judgments ordered by a
court, and that although certain other policy terms make reference to the
settlement of claims, the policy language read as a whole does not extend the
indemnification obligation to the costs and expenses of out-of-court settlement of
claims.
We granted the County’s petition for review. Amicus curiae briefs in
support of the County have been filed by the California State Association of
Counties, United Policyholders, and the California Cast Metals Association.
Amicus curiae briefs in support of Ace have been filed by the Complex Insurance
Claims Litigation Association and the London Market Insurers.
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DISCUSSION
1. Standard of review and rules of insurance policy interpretation
The issue before both the trial court and Court of Appeal was one of law;
the interpretation of the indemnification obligation under the nonstandard policy
language of the policy issued to the County by ACE. “When determining whether
a particular policy provides a potential for coverage . . . , we are guided by the
principle that interpretation of an insurance policy is a question of law. (AIU Ins.
Co. v. Superior Court (1990) 51 Cal.3d 807, 818.)” (Waller v. Truck Ins.
Exchange, Inc. (1995) 11 Cal.4th 1, 18.)
As explained in Powerine II, supra, __ Cal.4th at pages __-__ [pp. 12-14]:
“ ‘The insurer is entitled to summary adjudication that no potential for
indemnity exists . . . if the evidence establishes as a matter of law that there is no
coverage. [Citation.] We apply a de novo standard of review to an order granting
summary judgment when, on undisputed facts, the order is based on the
interpretation or application of the terms of an insurance policy.’ (Smith Kandal
Real Estate v. Continental Casualty Co. (1998) 67 Cal.App.4th 406, 414; see
Powerine I, supra, 24 Cal.4th at p. 972.)
“In reviewing de novo a superior court’s summary adjudication order in a
dispute over the interpretation of the provisions of a policy of insurance, the
reviewing court applies settled rules governing the interpretation of insurance
contracts. We reiterated those rules in our decision in Foster-Gardner [v. National
Union Fire Ins. Co. (1998) 18 Cal.4th 857 (Foster-Gardner)]:
“ ‘ “While insurance contracts have special features, they are still contracts to
which the ordinary rules of contractual interpretation apply.” (Bank of the West v.
Superior Court (1992) 2 Cal.4th 1254, 1264; see AIU [Ins. Co. v. Superior Court
(1990)] 51 Cal.3d [807] at pp. 821-822.) “The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties.” (Bank of the
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West v. Superior Court, supra, 2 Cal.4th at p. 1264.) “Such intent is to be
inferred, if possible, solely from the written provisions of the contract.” (AIU,
supra, 51 Cal.3d at p. 822.) “If contractual language is clear and explicit, it
governs.” (Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1264.)’
(Foster-Gardner, supra, 18 Cal.4th at p. 868.)
“ ‘ “A policy provision will be considered ambiguous when it is capable of
two or more constructions, both of which are reasonable.” (Waller v. Truck Ins.
Exchange, Inc. (1995) 11 Cal.4th 1, 18; Bay Cities Paving & Grading, Inc. v.
Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 867.) The fact that a term is not
defined in the policies does not make it ambiguous. (Bay Cities Paving &
Grading, Inc. v. Lawyers’ Mutual Ins. Co., supra, 5 Cal.4th at p. 866; Bank of the
West v. Superior Court, supra, 2 Cal.4th at p. 1264; Castro v. Fireman’s Fund
American Life Ins. Co. (1988) 206 Cal.App.3d 1114, 1120.) Nor does
“[d]isagreement concerning the meaning of a phrase,” or “ ‘ “the fact that a word
or phrase isolated from its context is susceptible of more than one meaning.’ ”
(Castro v. Fireman’s Fund American Life Ins. Co., supra, 206 Cal.App.3d at
p. 1120.) “ ‘[L]anguage in a contract must be construed in the context of that
instrument as a whole, and in the circumstances of that case, and cannot be found
to be ambiguous in the abstract.’ ” (Bank of the West v. Superior Court, supra, 2
Cal.4th at p. 1265, italics omitted.) “If an asserted ambiguity is not eliminated by
the language and context of the policy, courts then invoke the principle that
ambiguities are generally construed against the party who caused the uncertainty
to exist (i.e., the insurer) in order to protect the insured’s reasonable expectation of
coverage.” (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.
(1994) 9 Cal.4th 27, 37.)’ (Foster-Gardner, supra, 18 Cal.4th at p. 868.)”
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2. The Ace policy language and this court’s decisions in
Foster-Gardner, Powerine I, and Powerine II
The County argued in the Court of Appeal that the trial court erred in
determining, under this court’s holding in Powerine I, supra, 24 Cal.4th 945, that
the term “damages” in the insuring agreement of the ACE policy limits indemnity
coverage to court-ordered money judgments against the insured.1
As noted, in Powerine I we held that “the insurer’s duty to indemnify the
insured for ‘all sums that the insured becomes legally obligated to pay as
damages’ under the standard [CGL] insurance policy is limited to money ordered
by a court.” (Powerine I, supra, 24 Cal.4th at p. 960, italics added.) We based
this conclusion in part on what we termed “Foster-Gardner’s syllogism.” (Ibid.)
Several years earlier, in Foster-Gardner, supra, 18 Cal.4th 857, this court held
that the insurer’s duty to defend the insured in a “suit seeking damages” under the
wording of the same standard CGL policy is likewise limited to civil suits
prosecuted in court. (Id. at pp. 878-888.) In the analysis that followed in
Powerine I, we explained that the insurer’s obligation to indemnify for “damages”
is limited to “money ordered by a court” in part because the provisions in the
standard CGL policy imposing both a duty to defend and a duty to indemnify on
the insurer each “link[] ‘damages’ to a ‘suit,’ i.e., a civil action prosecuted in a
court.” (Powerine I, supra, 24 Cal.4th at p. 962.)

1
Alternatively, the County argued in the Court of Appeal that Ace’s
reservation of rights to deny coverage and certain other allegedly wrongful
conduct allowed the County to protect its interests by settling the claims without
Ace’s consent and then obtain reimbursement for the settlements. This latter
claim was rejected by the Court of Appeal as a matter of law, and the County did
not seek review of that aspect of the court’s holding.
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Here, however, the Ace nonstandard third party liability policy is an
“excess” policy1 providing the County as the insured with excess liability
coverage over and above its “self-insurance program or a self-insured retention
arrangement for any part of the underlying limits of liability.” Ace’s nonstandard
excess policy does not contain a duty to defend suits. Accordingly, the Foster-
Gardner syllogism is not directly implicated in this case.
However, the scope of the indemnification obligation under this policy
remains governed by our holding in Powerine I. The central insuring language of
the Ace policy obligates Ace to indemnify the County for “all sums which [the
County] is obligated to pay by reason of liability imposed by law or assumed
under contract or agreement” for “damages . . . by reason of injury of any nature
sustained by any person or persons” and “damages because of injury to or
destruction of tangible property.” (Italics added.) The Court of Appeal below
correctly concluded that the reasoning of our decision in Powerine I regarding the
limitation the term “damages” imposes on the scope of indemnity coverage under
the standard CGL policy applies perforce to the insuring provisions of this
nonstandard excess insurance policy which, like the standard CGL policy
considered in Powerine I, utilizes “damages” as the sole term of limitation of the
indemnity obligation under the insuring agreement.
As we observed in Powerine I, “the duty to indemnify ‘entails the payment
of money’ (Aerojet-General Corp. v. Transport Indemnity Co. [(1997)] 17 Cal.4th
[38 ] at p. 56; accord, Buss v. Superior Court [(1997)] 16 Cal.4th [35] at p. 46),”

1
As a general matter, the term “excess coverage” refers to indemnity
coverage that attaches upon the exhaustion of underlying insurance coverage for a
claim. (See 2 Croskey et al., Cal. Practice Guide: Insurance Litigation, supra,
¶ 8:76, p. 8-39 [“ ‘Excess’ means ‘insurance that begins after a predetermined
amount of underlying coverage is exhausted and that does not broaden the
underlying coverage.’ [Citations.]”].)
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“has as its purpose ‘to resolve liability . . . after liability is established’ ([Aerojet-
General Corp. v. Transport Indemnity Co., supra, 17 Cal.4th] at p. 56, italics
added),” and “can arise only after damages are fixed in their amount (see Aerojet-
General Corp. v. Transport Indemnity Co., supra, 17 Cal.4th at p. 56; Buss v.
Superior Court, supra, 16 Cal.4th at p. 46)” (Powerine I, supra, 24 Cal.4th at
p. 958, some italics omitted.)
We explained further in Powerine I why the term “damages” in the policy
provision imposing the duty to indemnify, both in its legal and commonly
understood or “ ‘ordinary and popular sense,’ ” is limited to “money ordered by a
court” separate and apart from the deductive reasoning of Foster-Gardner’s
syllogism. (Powerine I, supra, 24 Cal.4th at p. 969.) It is limited to money
judgments in part because “within the legal and broader culture,” “ ‘harm’ exists
traditionally outside of court [citations],” whereas “ ‘[d]amages’ exist traditionally
inside of court. [Citations.]” (Id. at p. 962.) We observed that inclusion of the
term “damages” in the insuring agreement of the standard CGL policy precluded a
finding that a broad right to indemnification outside the context of a lawsuit was
intended under the policy language: “[O]ne would not speak of any ‘sum that the
insured becomes legally obligated to pay as damages’ apart from any order by a
court. . . . That is because, as a sum that the insured becomes legally obligated to
pay, ‘damages’ presuppose an institution for their ordering, traditionally a court,
albeit no longer exclusively. [Citations.] ‘Damages’ do not constitute a
redundancy to a ‘sum that the insured becomes legally obligated to pay,’ but a
limitation thereof.” (Id. at p. 963, fn. omitted.)
The County argues that the definition of “ultimate net loss” contained in the
limits of liability provision of the Ace policy, when read together with the central
insuring language, creates an independent basis for extending the insurer’s
indemnification obligation under the policy beyond damages to the costs and
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expenses of responding to adminstratively issued environmental cleanup orders or
settling related third party liability claims outside the context of a lawsuit.
The language on which the County relies is contained in the policy’s “limits
of liability” provision, which in turn makes reference to a definition of “ultimate
net loss.” The provision reads as follows:
“LIMITS OF LIABILITY: Liability under this policy shall attach to the
company only after . . . the named insured [has] paid or [has] been liable to pay,
the full amount of [its] respective ultimate net loss liabilities as follows:
“100,000 EACH OCCURRENCE
“250,000 ANNUAL AGGREGATE
“Personal Injury or Property Damage or Personal Injury and Property
Damage combined
“[A]nd the company shall then be liable to pay only such additional
amounts as will provide the insured with a total coverage under the policy . . .
and/or whatever portion of coverage is self-insured by the named insured, and this
policy combined of:
“$1,000,000.00 each occurrence combined single limit for Personal Injury
or Property Damage . . . .
“It is hereby agreed that should the named insured utilize a self-insurance
program or a self-insured retention arrangement for any part of the underlying
limits of liability, then the named insured’s salaried employees or their designee
shall be used as adjusters on behalf of the named insured. It is further agreed that
all legal matters concerning claims under this policy in excess of any self-insured
portion of underlying coverage shall be coordinated through a firm or person
mutually agreed upon.” (Italics added.)
“Ultimate net loss” in turn is defined in the policy as “the sum or sums
which the assured shall become legally obligated to pay in settlement or
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satisfaction of claims, suits or judgements . . . includ[ing] all expenses from the
investigation, negotiation and settlement of claims . . . and shall include legal
costs.”
A similar argument was raised by the insured in Powerine II, supra, ___
Cal.4th ___. In that decision, we have concluded that the literal wording of the
central insuring agreement and incorporated definition of “ultimate net loss” in
nine excess/umbrella policies issued to the insured over the course of 10 years did
unambiguously extend the indemnification obligation under those policies beyond
“damages,” i.e., a court-ordered money judgment against the insured, to the
“expenses” or liability of administratively imposed environmental response costs
outside the context of a court suit. (Powerine II, supra, __ Cal.4th at p. __ [p. 2].)
The Court of Appeal that authored the now superseded opinion in
Powerine II agreed with the insured’s reading of the indemnification obligation
under the nine standard form excess/umbrella policies therein concerned. The
Court of Appeal in this case had before it for consideration the published decision
of the Court of Appeal in Powerine II, as review in that matter had not yet been
granted as of the time the Court of Appeal filed its decision in this case. The
Court of Appeal below expressly considered and distinguished the policy language
at issue in Powerine II from the policy language at issue in this case.
There are several key distinctions between the central insuring provision
and incorporated definition of “ultimate net loss” in the standard excess/umbrella
policies at issue in Powerine II, and the central insuring provision and referenced
definition of “ultimate net loss” found in this nonstandard third party liability
policy.
First, the term “expenses” was expressly contained in the central insuring
clause of the excess/umbrella policies at issue in Powerine II (“The Company
hereby agrees . . . to indemnify the Insured for all sums which the Insured shall be
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obligated to pay by reason of the liability . . . imposed upon the Insured by law . . .
for damages, direct or consequential and expenses, all as more fully defined by the
term ‘ultimate net loss’ on account of: . . . property damage . . . caused by or
arising out of each occurrence covered hereunder . . . .” (Italics added.)
(Powerine II, supra, __ Cal.4th at p. __ [p. 6].) In contrast, the term “expenses” is
not found in the central insuring provision of the Ace policy—the obligation to
indemnify extends only to “all sums which the insured is obligated to pay by
reason of liability imposed by law or assumed under contract or agreement” for
“damages” resulting from personal injuries or the destruction or loss of use of
tangible property.
Second, the central insuring provision of the standard excess/umbrella
policies at issue in Powerine II, supra, __ Cal.4th at p. __ [p. 6] expressly purports
to “more fully define[]” “damages, direct or consequential and expenses” through
incorporation of a definition of “ultimate net loss” into the insuring clause itself.
In contrast, the definition of “ultimate net loss” here is neither incorporated into,
referenced, nor a part of the central insuring clause of the Ace policy. Instead, as
explained, it is referenced in the “limits of liability” policy provision, the main
function of which appears to be the setting forth of limits of excess liability
coverage over the insured’s “self-insurance program or a self-insured retention
arrangement for any part of the underlying limits of liability.” In that specific
context, the definition of “ultimate net loss” merely serves to define the insured’s
total loss that will count toward such policy limits. “Insurance policies are written
in two parts: an insuring agreement which defines the type of risks being covered,
and exclusions, which remove coverage for certain risks which are initially within
the insuring clause.” (Rosen v. Nations Title Ins. Co. (1997) 56 Cal.App.4th 1489,
1497.) Nothing in the “limits of liability” provision of the Ace policy purports to
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expand Ace’s indemnification obligation, once triggered, to anything other than
“damages.”
These two distinctions were not lost on the Court of Appeal below, which
court, in the course of rejecting the County’s argument for an expansive
construction of indemnity coverage under the Ace policy, distinguished the policy
language in Powerine II when observing, “In contrast to Powerine II, the Ace
policy’s insuring clause does not include the term ‘expenses’ to broaden the
coverage beyond that provided by the word ‘damages.’ . . . Further, the insuring
clause does not define the term ‘damages’ by reference to the ‘ultimate net loss’
provisions, in which the references to the settlement or satisfaction of claims
appears.”
Finally, the Ace policy contains a “no-action” provision. As the Court of
Appeal below explained, “[T]he Ace policy provides that ‘[n]o action shall lie
against the company unless, as a condition precedent thereto, . . . the amount of the
insured’s obligation to pay shall have been finally determined either by judgment
against the insured after actual trial or by written agreement of the insured, the
claimant and the company.’ The Ace policy also provides that the County ‘shall
not, except at [its] own cost, voluntarily make any payment, assume any obligation
or incur any expense other than for such immediate medical and surgical relief to
others as shall be imperative at the time of the occurrence.’ Conditions such as
these ordinarily appear in policies including the duty to defend, and they are
intended to invest the insurer with the right to control the defense and preclude
collusion between the insured and the third party claimant. (2 Croskey et al., Cal.
Practice Guide: Insurance Litigation, supra, ¶ 7:439.6, p. 7A-116.) These
conditions belie the notion that the term damages in the Ace policy extends the
indemnity duty to any settlement entered into by the County.”
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In Powerine I, supra, 24 Cal.4th 945, we briefly discussed the standard
form CGL policy’s “so-called no-action provision, which, in typical language,
generally states that ‘no action’ by a third party ‘shall lie’ against the insurer
unless the insured’s ‘obligation to pay shall have finally been determined’ either
by a ‘judgment’ against the insured ‘obtained after an actual trial’ or by a
‘settlement’ reduced to contract to which the insurer ‘agrees.’ ” (Id. at p. 962,
fn. 4.) We explained that the “no-action” clause implies that the insurer may owe
a duty to indemnify, but in its further reference to a “judgment,” “implies as well
that [the] duty is limited to money ordered by a court.” (Ibid.)
In sum, we agree with the Court of Appeal below that the insuring language
of the standard CGL policy discussed in Powerine I and the insuring clause of the
Ace nonstandard third party liability policy are substantively the same. The
central insuring provision in the Ace policy, like the policy considered in
Powerine I, contains only the “damages” limitation standing alone, makes no
express reference to “expenses,” and does not purport to further define the scope
of indemnity coverage set forth in the insuring provision by reference to the
definition of “ultimate net loss,” as was the case with the nine excess/umbrella
policies scrutinized in Powerine II. We conclude that costs and expenses
associated with responding to administrative orders to clean up and abate soil or
groundwater contamination outside the context of a government-initiated lawsuit
seeking such remedial relief, and property buy-out settlements negotiated with
third party claimants outside the context of a court suit, do not fall within the
literal and unambiguous coverage terms of the Ace policy’s insuring agreement.
3. Out-of-state authorities cited by the County
In supplemental briefing, the County has relied on several recent out-of-
state decisions purportedly supporting its contention that the term “damages” in
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the Ace policy should be construed more broadly than it was in Powerine I. We
are unpersuaded.
The County first draws our attention to the Illinois Supreme Court’s recent
decision in Central Illinois Light Co. v. Home Ins. Co. (Ill. 2004) 821 N.E. 2d 206,
216-218 (CILCO). The plaintiff in CILCO brought a coverage action against its
excess liability insurers for indemnification of funds expended to investigate and
remediate environmental coal tar contamination at several of its sites that formerly
manufactured gas, creating coal tar as a by product, in the era before natural gas
pipelines became the predominant source of such fuel. (CILCO, supra, 821
N.E.2d at pp. 208-209.) The CILCO policies expressly excluded coverage for
expenses. The Illinois Supreme Court nonetheless concluded the insured’s costs
incurred in investigating and remediating environmental contamination at its
facilities were covered under the policies, not as “expenses,” but as sums the
insurer was legally obligated to pay “as damages.”
The CILCO court based that conclusion in large part on its belief that it is
“generally understood” in the insurance industry that “funds paid to resolve . . .
claims” in the absence of a lawsuit constitute “damages,” although the court
offered no support whatsoever for this observation. (CILCO, supra, 821 N.E.2d at
p. 218.) In contrast, in Powerine I this court provided an extensive and
authoritative analysis of why the term “damages” has legally, commonly, and
traditionally been understood to denote “money ordered by a court,” which
conclusion was supported by a wide range of sources drawn from both legal and
nonlegal authorities.
The CILCO court discussed and distinguished this court’s Powerine I
decision on the ground that the primary CGL policies at issue in Powerine I
contained a duty to defend, while the excess policies before it for interpretation did
not. (CILCO, supra, 821 N.E.2d at pp. 215-216.) That distinction is of no
17

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consequence here, since Ace’s policy likewise contains no duty to defend, and we
are not relying on the presence of such a clause in the policy to conclude that the
term “damages” limits indemnity to money ordered by a court.
Insofar as the policies at issue in CILCO expressly excluded coverage for
“expenses,” rather than conclude that the costs of complying with administrative
clean-up orders are “expenses,” the CILCO court concluded such costs fall within
the meaning of “damages,” and for that reason were covered under the policies
there in issue. Indeed, in concluding that “damages” are not limited to money
ordered by a court, the CILCO court placed heavy reliance on the decision of the
Maryland Court of Appeals in Bausch & Lomb v. Utica Mutual Insurance
Company (Md. 1993) 625 A.2d 1021, noting “[w]e find Bausch & Lomb highly
persuasive and not readily distinguishable on its facts.” (CILCO, supra, 821
N.E.2d at p. 223.) In contrast, we expressly rejected the reasoning of Bausch &
Lomb and other similar cases in Powerine I, concluding our research revealed that
the term “damages” has legally and traditionally always been understood as
limited to money ordered by a court. (Powerine I, supra, 24 Cal.4th at p. 965.)
CILCO is thus not availing to the County’s position, particularly given the
presence of a “no action” clause in this policy, which reinforces our conclusion
that the indemnification obligation set forth under the literal terms of the policy
was intended to be limited to money judgments for damages against the insured.
Next, the County draws our attention to the South Carolina Supreme
Court’s recent decision in Helena Chemical Corp. v. Allianz Underwriters Ins. Co.
(S.C. 2004) 594 S.E.2d 455 (Helena Chemical). In the portion of the opinion cited
by the County, the Helena Chemical court overturned the trial court’s conclusion
that sums expended to remediate soil contamination are not “damages” because
they are not paid as compensation for property damage to a third party. This, in
essence, is the same conclusion unanimously reached by this court over 14 years
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ago in AIU, supra, 51 Cal.3d at pages 821-822. Moreover, Helena Chemical, like
CILCO, places considerable reliance on the Maryland Court of Appeals decision
in Bausch & Lomb v. Utica Mutual Insurance Company, supra, 625 A.2d 1021,
and as explained above, this court has already expressly rejected the reasoning of
Bausch & Lomb and similar cases in Powerine I.
The court in Helena Chemical further concluded that the very fact that
different courts across the nation have construed the term “damages” differently is
“some indication of ambiguity.” (Helena Chemical, supra, 594 S.E.2d at p. 459.)
But “some indication of ambiguity” (ibid.) is not the legal standard of review in
California by which we determine whether the express terms of an insurance
policy are ambiguous. (See, e.g., California Casualty Ins. Co. v. Northland Ins.
Co. (1996) 48 Cal.App.4th 1682, 1694; Castro v. Fireman’s Fund American Life
Ins. Co., supra, 206 Cal.App.3d at p. 1120.) Our standard for declaring ambiguity
in insurance policy language is a good deal more discriminating—language
“capable of two or more constructions, both of which are reasonable” (Waller v.
Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 18) is required before ambiguity
will be declared and construed against the insurer in order to protect the insured’s
reasonable expectation of coverage. (La Jolla Beach & Tennis Club, Inc. v.
Industrial Indemnity Co., supra, 9 Cal.4th at p. 37.) In Powerine I, supra, 24
Cal.4th at page 971, we expressly rejected the reasoning of out-of-state cases that
have found the “damages” limitation in third party liability policies ambiguous
under different standards. The term, having been judicially construed by this
court, is not ambiguous. (Bartlome v. State Farm Fire & Casualty Co. (1989) 208
Cal.App.3d 1235, 1239.)
Next, the County also draws our attention to the Vermont Supreme Court’s
recent decision in Hardwick Recycling & Salvage, Inc. v. Acadia Insurance
Company (Vt. 2004) 869 A.2d 82. That decision appears to have little if anything
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to do with the case at bench. It involved a “claims made” third party liability
policy, which is a different type of policy than the “occurrence based” policies at
issue in Powerine I, Powerine II, and the instant case. The Acadia insurance
policy in Hardwick Recycling covered damages arising from “pollution liability
hazard” in the event a third party claim was made against the insured during the
period the policy was in effect. The State of Vermont had issued a potentially
responsible party letter (PRP) to Hardwick Recycling pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (CERCLA) (42 U.S.C. § 9601 et seq.), and thereafter formally brought suit
against the insured five years later. Overturning the trial court’s summary
judgment order in favor of the insurer, the Vermont Supreme Court concluded that
the state’s 1995 PRP letter constituted a claim for damages within the 1995 policy
period, thereby triggering the insurer’s duty to defend the state’s lawsuit
subsequently filed in the year 2000. In reaching this ruling, the Vermont high
court stated that the term “damages” could reasonably be understood to include
money the insured must pay out to remediate environmental pollution. (Hardwick
Recycling, supra, 869 A.2d at p. 90.) Once again, that holding is functionally the
same as this court’s unanimous holding to that effect 14 years ago in AIU.
Finally, in a footnote in its supplemental brief, the County has cited the
Connecticut Supreme Court’s recent decision in R.T. Vanderbilt Co., Inc. v.
Continental Casualty Company (Ct. 2005) 870 A.2d 1048. Here again, as far as
we can discern, the decision in R.T. Vanderbilt has little if anything to do with the
interpretation of the duty to indemnify in a third party liability policy. The
decision does hold that the issuance of a PRP letter to an insured in and of itself
can trigger the duty to defend in primary CGL policies under Connecticut law
because, as the R.T. Vanderbilt court concluded, the term “suits” in the “duty to
defend” clause, in the opinion of that court and several other sister-state courts, is
20

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ambiguous. Of course, this court held just the opposite in Foster-Gardner, supra,
18 Cal.4th 857, in which we found nothing ambiguous about the standard duty to
defend clause that limits the defense obligation to “suits for damages.” In any
event, as explained, since Ace’s nonstandard excess third party liability policy
issued to the County does not contain a duty to defend provision, our holding in
Foster-Gardner is not directly implicated in this case.
4. The County’s claim of detrimental reliance
Last, the County asserts that Ace’s payment history under the policy in
question establishes that the parties reasonably believed the policy provides the
expanded indemnity coverage sought by the County. Indeed, the County, in its
reply brief, suggests that Ace has “conceded” (in its answer brief) that it paid the
County’s claims in the 1970s, including claims that the County presented to Ace
after settlements were consummated. Thus, the County argues, “in the years
directly after the issuance of the Ace Policy, Ace paid the County’s claims after
resolution, thereby confirming the County’s reasonable expectations that ‘claims’
are covered.”
We do not read Ace’s briefs as containing the concession described by the
County. To the contrary, Ace argued that “The parties’ alleged course of dealing
does not support the county’s proposed interpretation of the policy.” As Ace
explained, a third party adjuster was retained to adjust liability claims within the
County’s self-insured retention during the three years that the Ace policy was in
effect. During that time, the County submitted third party claim summaries,
compiled by the adjuster and identifying sums the County had paid under its self-
insurance program, to Ace. That is precisely what the express terms of this policy
required. Under those terms, the independent adjuster was not establishing the
value of claims for purposes of submission for payment by Ace. Rather, the
adjuster was establishing the aggregate value of claims for purposes of allocating
21

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covered losses to the County’s self-insured retention. Covered claims that must be
paid up to a specified aggregate limit by the insured under its self-insured
retention are not, by definition, subject to indemnification by the insurer.
Ace reports that it generally agreed with the valuation of the settlements of
the claims as reported in the claim summaries. Third party claims paid by the
County and reported to Ace for this purpose, we are told by Ace, involved
routinely covered third party liability matters such as automobile accidents and
false arrests. Ace has represented in its answer brief that “there is no evidence that
the County ever reported payment of any costs associated with an administrative
order or cleanup and abatement order . . . in these claim summaries, nor is there
any evidence that [Ace] agreed to pay any such costs.”
Apparently there was one instance in which the County asked for, and Ace
agreed to reimburse the County for, amounts reflected in the claim summaries that
were in excess of the County’s annual self-insured retention requirement under the
policy. We agree with Ace that, on such facts, at most, the record establishes that
Ace willingly reimbursed the County for sums paid to settle such claims before
judgment. That is plainly within the insurer’s discretion, and it is entirely
consistent with other policy provisions recognizing the insurer’s discretionary
right to approve and fund any out-of-court settlement of claims, e.g., the “no
action” clause.
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CONCLUSION
The judgment of the Court of Appeal is affirmed, and the matter remanded
to that court for further proceedings consistent with the views expressed herein.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
CHIN, J.

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CONCURRING OPINION BY WERDEGAR, J.

I concur in the judgment under the compulsion of Certain Underwriters at
Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945 and Foster-Gardner,
Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, decisions from which I
dissented and which in my view deserve reconsideration.
WERDEGAR, J.
1

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CONCURRING OPINION BY MORENO, J.

I concur in the judgment. We were not asked to grant review to decide
whether Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24
Cal.4th 945 (Powerine I) and Foster-Gardner, Inc. v. National Union Fire Ins. Co.
(1998) 18 Cal.4th 857, should be overruled, nor were these issues addressed by the
parties. (Cf. Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d
287, 292 [noting the arguments of counsel and amici curiae that our decision in
Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880 should be
reconsidered].) I therefore concur under compulsion of the principles set forth in
those cases. I am uncertain, however, of the soundness of these two decisions.
(See Powerine I, supra, 24 Cal.4th 945, 975 (dis. opn. of Kennard, J.); Foster-
Gardner, supra, 18 Cal.4th 857, 888 (dis. opn. of Kennard, J.).)
MORENO, J.
1

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CONCURRING AND DISSENTING OPINION BY KENNARD, J.

In my dissenting opinion in Certain Underwriters at Lloyd’s of London v.
Superior Court (2001) 24 Cal.4th 945, 975, I explained why, in my view, the word
“damages” in a standard comprehensive general liability insurance policy’s
indemnity provision does not refer only to judgments rendered in judicial
proceedings but includes also the costs of complying with an administrative order
to mitigate and remediate the effects of environmental pollution. Although the
policies at issue here are excess/umbrella policies rather than comprehensive
general liabilities policies, that difference is not material to the issue presented
here. Therefore, unlike the majority, I would not limit the word “damages” in the
indemnity provisions of these policies to money ordered by a court. Instead, I
would hold that it includes expenses that the County of San Diego incurred to
comply with the Regional Water Quality Control Board’s cleanup and abatement
order.
I agree with the majority, however, that the insurer was not obligated to
indemnify the county for its costs of settling the claims of adjoining property
owners, in the absence of the insurer’s consent to the settlements, at least to the
extent those costs were not mandated by any administrative order.
KENNARD,
J.
1

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion County of San Diego v. Ace Property & Casualty Ins. Co.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 106 Cal.App.4th 349
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S114778
Date Filed: August 29, 2005
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: William R. Nevitt, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

John J. Sansone, County Counsel, William A. Johnson, Jr., and William L. Pettingill, Deputy County
Counsel; Massie, Berman & Millerick, LaSala & Millerick, Michael F. Millerick; Latham & Watkins,
David L. Mulliken and Christine G. Rolph for Cross-complainant and Appellant.

Anderson Kill & Olick, Alex D. Hardiman, William G. Passannante; Law Offices of Amy Bach and Amy
Bach for United Policyholders as Amicus Curiae on behalf of Cross-complainant and Appellant.

Zevnik Horton and David S. Cox for ITT Industries, Inc., and Rayonier, Inc., as Amici Curiae on behalf of
Cross-complainant and Appellant.

Daley & Heft and Margaret A. Hendrick for California State Association of Counties as Amicus Curiae on
behalf of Cross-complainant and Appellant.

Stanzler Funderburk & Castellon, Jordan S. Stanzler and William W. Funderburk, Jr., for California Cast
Metals Association as Amicus Curiae on behalf of Cross-complainant and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Crowell & Moring, Jonathan H. Pittman, Mark D. Plevin; Chapin Shea McNitt & Carter, Edward D.
Chapin, Maria C. Roberts, Shirley A. Gauvin; Berman & Aiwasian and Deborah A. Aiwasian for Cross-
defendants and Respondents.

Wiley Rein & Fielding, Laura A. Fogan, John C. Yang, Paul J. Haase; Sinnott, Dito, Moura & Puebla,
Randolph P. Sinnott and John J. Moura for Complex Insurance Claims Litigation Association as Amicus
Curiae on behalf of Cross-defendants and Respondents.

Hancock Rothert & Bunshoft, Patrick A. Cathcart, William J. Baron and Kathryn C. Ashton for London
Market Insurers as Amicus Curiae on behalf of Cross-defendants and Respondents.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

David L. Mulliken
Latham & Watkins
600 Broadway, Suite 1800
San Diego, CA 92101
(619) 236-1234

Jonathan H. Pittman
Crowell & Moring
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 624-2500

2

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Opinion Information

Date:	Docket Number:
Mon, 08/29/2005	S114778

Disposition
Aug 29 2005	Opinion: Affirmed with directions

Dockets
Apr 1 2003	Petition for review filed   Appellant ( County of San Diego)
Apr 3 2003	Received Court of Appeal record
Apr 8 2003	Received document entitled:   Application to appear pro hac vice by Jonathan Pittman, for resps. (rec'd in San Diego)
Apr 18 2003	Answer to petition for review filed   by resps
Apr 23 2003	Petition for Review Granted (civil case)
Apr 23 2003	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Apr 23 2003	Application to appear as counsel pro hac vice granted   Jonathan H. Pittman of Washington, DC. to appear for Respondent ACE Property and Casualty Insurance Company.
Apr 30 2003	Received document entitled:   "Notice of Lodgment of Exhibits in Support of Respondent's Answer to Petition for Review" **this is actually 4 vol. of exhibits formerly lodged with C/A on 4-16-02 in conjunction with the Respondent's Brief.
May 1 2003	Received Court of Appeal record   one doghouse
May 7 2003	Certification of interested entities or persons filed   by resps
May 7 2003	Certification of interested entities or persons filed   by aplts
May 9 2003	Request to substitute counsel filed   Senior Dep. Marie A. La Sala will replace Wm. Pettingill (San Diego County Counsel's Office) for petnr.
May 12 2003	Request for extension of time filed   by aplt to file the opening brief on the merits, to 6/23.
May 14 2003	Extension of time granted   Time for aplt to file the opening brief on the merits is extended to 6-23-03.
Jun 23 2003	Opening brief on the merits filed   by aplt County of San Diego
Jun 23 2003	Notice of substitution of counsel   Edward Chapin for respondent ACE, in place of Maria Roberts
Jul 8 2003	Request for extension of time filed   for resp ACE to file the answer brief on the merits, to 8/22.
Jul 14 2003	Extension of time granted   to 8-22-03 for resp to file the answer brief on the merits.
Aug 25 2003	Answer brief on the merits filed   by resp. (40k)
Aug 25 2003	Filed:   Resp's Notice of Lodgment of Exhibits ( 3 exhibits attached) and separate bound volume labeled "Volume 2" *
Aug 25 2003	Request for judicial notice filed (in non-AA proceeding)   by resp (copy of San Diego ordinance #4323 attached)
Sep 2 2003	Request for extension of time filed   counsel for appellant San Diego Co. requests extension to October 6, 2003 to file the reply brief on the merits.
Sep 9 2003	Extension of time granted   to 10-6-03 for aplt to file the reply brief on the merits
Oct 6 2003	Reply brief filed (case fully briefed)   by counsel for Cross- compl. and appellant (City of San Diego)
Oct 14 2003	Received application to file amicus curiae brief; with brief   Complex Ins. Claims Litigation Association in support of ACE Property and Casualty Ins. Co. [app. & brief under separate covers.]
Oct 22 2003	Permission to file amicus curiae brief granted   Complex Insurance Claims Litigation Assoc.
Oct 22 2003	Amicus curiae brief filed   Complex Insurance Claims Litigation Assoc. An answer thereto my be served and filed by any party within twenty days of the filing of the brief.
Nov 3 2003	Received application to file amicus curiae brief; with brief   from United Policyholders in support of aplt
Nov 3 2003	Received application to file amicus curiae brief; with brief   from Calif. State Assn. of Counties in support of aplt
Nov 6 2003	Received application to file amicus curiae brief; with brief   by London Market Insurers in support of resp. (timely per CRC 40k)
Nov 12 2003	Received document entitled:   Application of Calif. Cast Metals Assn. for permission to file a late A/C brief. With brief.
Nov 12 2003	Response to amicus curiae brief filed   by aplt San Diego to the A/C brief of Complex Insurance Claims Litigation Assn. (timely per CRC 40k)
Nov 20 2003	Change of Address filed for:   Margaret Hendrick for a/c Cal. State Assn. of counties.
Nov 20 2003	Permission to file amicus curiae brief granted   by United Policyholders in support of aplt. Answers may be filed w/in 20 days
Nov 20 2003	Amicus curiae brief filed   by United Policyholders in support of aplt.
Nov 20 2003	Permission to file amicus curiae brief granted   by Calif. State Association of Counties in support of aplt. Answers may be filed w/in 20 days.
Nov 20 2003	Amicus curiae brief filed   Calif. State Assn. of Counties in support of aplt.
Nov 20 2003	Permission to file amicus curiae brief granted   by California Cast Metals to file a late a/c brief, in support of aplt. Answers may be filed w/in 20 days.
Nov 20 2003	Amicus curiae brief filed   by Calif. Cast Metals in support of aplt.
Nov 20 2003	Permission to file amicus curiae brief granted   by London Market Insurers in support of resps. Answers may be filed w/in 20 days.
Nov 20 2003	Amicus curiae brief filed   by London Market Insurers in support of resps.
Nov 20 2003	Filed:   Notice of Case Reassignment by San Diego County Counsel (for appellant)
Dec 10 2003	Response to amicus curiae brief filed   Aplt's response to the A/C brief of London Market Insurers
Dec 11 2003	Response to amicus curiae brief filed   Resp's answer to A/C briefs of United Policyholders and Calif. State Association of Counties. (40k)
Dec 11 2003	Response to amicus curiae brief filed   Resp's answer to A/C brief of Calif. Cast Metals Association. (40k)
Feb 10 2004	Change of Address filed for:   Latham & Watkins (for aplt)
Jan 19 2005	Change of contact information filed for:   atty Michael Millerick (for resp)
Apr 27 2005	Supplemental brief filed   Appellant ( County of San Diego)
May 3 2005	Case ordered on calendar   6/2/05, 9am, LA
May 18 2005	Received:   Resp's application for leave to file a response to aplt's supplemental brief. Brief submitted w/application.
May 20 2005	Filed:   resp's response to aplt's supp brief (permission to file)
May 26 2005	Order filed   The request for judicial notice filed on 8-25-03, is hereby granted.
May 27 2005	Notice of substitution of counsel   for resp ACE Property D. Aiwasian in place of E. Chapin
Jun 2 2005	Cause argued and submitted
Jun 16 2005	Change of contact information filed for:   Michael Millerick, counsel for aplt County of San Diego
Aug 29 2005	Opinion filed: Affirmed in full with directions   and remanded to the Court of Appeal for further proceedings. Plurality opinion by Baxter, J. ----------------joined by George, C.J., Chin, J. Concurring opinion by Werdegar, J. Concurring opinion by Moreno, J. Concurring & Dissenting opinion by Kennard, J.
Sep 13 2005	Rehearing petition filed   by aplt County of San Diego, with appendix of additional authorities.
Sep 16 2005	Time extended to consider modification or rehearing   to 11/23/05
Sep 22 2005	Answer to rehearing petition filed   by respondent
Oct 25 2005	Received:   Appellant's application for leave to file a reply brief in support of the petition for rehearing. with brief. (received in L.A.)
Oct 26 2005	Rehearing denied   Request for modification denied. Kennard, and Werdegar, JJ., are of the opinion the petition should be granted.
Oct 26 2005	Remittitur issued (civil case)

Briefs
Jun 23 2003	Opening brief on the merits filed
Aug 25 2003	Answer brief on the merits filed
Oct 6 2003	Reply brief filed (case fully briefed)
Oct 22 2003	Amicus curiae brief filed
Nov 12 2003	Response to amicus curiae brief filed
Nov 20 2003	Amicus curiae brief filed
Nov 20 2003	Amicus curiae brief filed
Nov 20 2003	Amicus curiae brief filed
Nov 20 2003	Amicus curiae brief filed
Dec 10 2003	Response to amicus curiae brief filed
Dec 11 2003	Response to amicus curiae brief filed
Dec 11 2003	Response to amicus curiae brief filed

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