Stanford Law School - Robert Crown Law Library

Filed 6/12/03

IN THE SUPREME COURT OF CALIFORNIA

GEORGE ROSEN,
Plaintiff and Respondent,
S108308
v.
Ct.App. 2/1 B146516
STATE FARM GENERAL INSURANCE )
COMPANY, )

Los Angeles County
Defendant and Appellant. )
Super.Ct.No.
BC215170

The insurance policy in this case defined “collapse” as “actually fallen
down or fallen to pieces.” However, sound public policy, the Court of Appeal
concluded, requires coverage for imminent, as well as actual, collapse, lest
dangerous conditions go uncorrected. By failing to apply the plain, unambiguous
language of the policy, the Court of Appeal erred. (Civ. Code, § 1644.) “[W]e do
not rewrite any provision of any contract, [including an insurance policy], for any
purpose.” (Certain Underwriters at Lloyd’s of London v. Superior Court (2001)
24 Cal.4th 945, 968 (Lloyds of London).)
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff submitted a claim to defendant, his homeowners insurance carrier,
for the cost of repairing two decks attached to his home. Plaintiff repaired the
decks upon the recommendation of a contractor who had discovered severe
deterioration of the framing members supporting the decks. Plaintiff believed his
decks were in a state of imminent collapse, entitling him to policy benefits.
SEE CONCURRING OPINION
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Defendant denied plaintiff’s claim on the ground, among others, that there
had been no collapse of his decks within the meaning of the policy, in that its
coverage was expressly restricted to actual collapse.
The “Losses Not Insured” section of plaintiff’s homeowners policy
provided that defendant did not insure for any loss to the dwelling caused by
“collapse, except as specifically provided in SECTION I – ADDITIONAL
COVERAGES, Collapse.” That provision stated: “We insure only for direct
physical loss to covered property involving the sudden, entire collapse of a
building or any part of a building. [¶] Collapse means actually fallen down or
fallen into pieces. It does not include settling, cracking, shrinking, bulging,
expansion, sagging or bowing.”
Plaintiff sued defendant for breach of contract and breach of the covenant
of good faith and fair dealing. Defendant moved for summary judgment, arguing
that plaintiff did not suffer a compensable loss because the decks did not actually
collapse.1 In his opposition to the motion, plaintiff argued there was a material
factual issue as to whether his decks were in a state of imminent collapse. Plaintiff
also argued that public policy required that the collapse provision of the policy be
construed to provide coverage for imminent collapse. The trial court denied
defendant’s motion for summary judgment, concluding there were triable issues of
material fact. The parties agreed to try the case to the court on the narrow issue of
whether defendant owed plaintiff policy benefits due to the imminent collapse of
his decks.
The trial court found for plaintiff. “The public policy of the State of
California is . . . that policyholders are entitled to coverage for collapse as long as

1
In the alternative, defendant moved for summary adjudication of plaintiff’s
claim for breach of the covenant of good faith and fair dealing and his request for
punitive damages. Prior to trial, plaintiff dismissed these claims.
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the collapse is imminent, irrespective of policy language.” The trial court declined
to honor the policy’s restriction of coverage because it would, in the court’s view,
“encourage property owners to place lives in danger in order to allow insurance
carriers to delay payment of claims until the structure actually collapses . . . .”
The Court of Appeal affirmed, holding that a homeowner’s policy that
expressly defines the term collapse as actually fallen down or fallen into pieces
must, nevertheless, for reasons of public policy, be construed as providing
coverage for imminent collapse.
We
reverse.
DISCUSSION
“ ‘[I]nterpretation of an insurance policy is a question of law.’ (Waller v.
Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 (Waller).) ‘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 (Bank of the West).) Thus, ‘the mutual intention of the parties
at the time the contract is formed governs interpretation.’ (AIU Ins. Co. v.
Superior Court (1990) 51 Cal.3d 807, 821 (AIU Ins.).) If possible, we infer this
intent solely from the written provisions of the insurance policy. (See id. at p.
822.) If the policy language ‘is clear and explicit, it governs.’ (Bank of the West,
supra, 2 Cal.4th at p. 1264.)” (Palmer v. Truck Ins. Exchange (1999) 21 Cal.4th
1109, 1115.)
As the Court of Appeal acknowledged, the policy language here was clear
and explicit. “The plain language of the collapse provision in Rosen’s
homeowners policy is unambiguous, in that it is susceptible only of one reasonable
interpretation—actual collapse of a building or a portion thereof is a prerequisite
to an entitlement to policy benefits. By defining the term ‘collapse’ to mean
‘actually fallen down or fallen into pieces,’ State Farm effectively removed any
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ambiguity in the term collapse. Under no stretch of the imagination does actually
mean imminently.”
The lack of ambiguity in the collapse provision here distinguishes this case,
the Court of Appeal pointed out, from the case upon which the trial court
principally relied—Doheny West Homeowners’ Assn. v. American Gurantee &
Liability Ins. Co. (1997) 60 Cal.App.4th 400 (Doheny West).
In
Doheny West, supra, 60 Cal.App.4th at pages 402-403, the homeowners
association of a large condominium complex sued its property insurer for breach
of contract and bad faith, alleging that the parking structure of the complex, as
well as the swimming pool and associated facilities built above the parking
structure, had been in a state of imminent collapse, and that the insurer had
wrongfully denied a claim for the necessary repairs the association had made to
the structure.
Unlike the policy in this case, the Doheny West policy did not specify that
the reach of the term collapse was restricted to actual collapse. Instead, the
Doheny West policy excluded coverage for collapse except “for loss or damage
caused by or resulting from risks of direct physical loss involving collapse of a
building or any part of a building” resulting from specified causes. (Doheny West,
supra, 60 Cal.App.4th at p. 402.) While the Doheny West trial court held that this
language embraced imminent as well as actual collapse, the trial court found for
the defendant insurer on the ground the plaintiff homeowners association had not
met its burden of proving that any part of the building was in a state of imminent
collapse. (Id. at p. 403.)
The Court of Appeal affirmed. Noting that its task was not merely to
construe the word collapse in isolation, but rather to construe the total coverage
clause, the Court of Appeal held that the coverage clause before it “cannot be said
to be clear, explicit, and unambiguous, and thus must be interpreted to protect the
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objectively reasonable expectations of the insured. [Citation.]” (Doheny West,
supra, 60 Cal.App.4th at p. 405.) With these principles in mind, the Court of
Appeal stated: “It is undisputed that the clause covers ‘collapse of a building,’
that is, that there is coverage if a building falls down or caves in. However, the
clause does not limit itself to ‘collapse of a building,’ but covers ‘risk of loss,’ that
is, the threat of loss. Further, on its terms it covers not only loss resulting from an
actual collapse, but loss ‘involving’ collapse. Thus, with the phrases ‘risk of loss,’
and ‘involving collapse,’ the policy broadens coverage beyond actual collapse.”
(Ibid., fn. omitted.)
However, the Court of Appeal rejected the plaintiff’s contention that the
policy phrases in question “broaden[ed] coverage to the extent that the clause
covers ‘substantial impairment of structural integrity.’ ” (Doheny West, supra, 60
Cal.App.4th at p. 405.) The Court of Appeal concluded that the trial court had
correctly interpreted the policy language before it “by requiring that [the] collapse
be actual or imminent.” (Id. at p. 406, fn. omitted.) “This construction of the
policy,” the Court of Appeal observed, “avoids both the absurdity of requiring an
insured to wait for a seriously damaged building to fall and the improper extension
of coverage beyond the terms of the policy, and is consistent with the policy
language and the reasonable expectations of the insured.” (Ibid.)
We agree with the Court of Appeal that Doheny West is distinguishable
from this case. As the Court of Appeal observed: “It is a well-established rule
that an opinion is only authority for those issues actually considered or decided.
(Santisas v. Goodin (1998) 17 Cal.4th 599, 620; Wilshire Ins. Co. v. Tuff Boy
Holding, Inc. (2001) 86 Cal.App.4th 627, 639.) At no time did the court in
Doheny [West] hold that an unambiguous collapse provision expressly limiting
recovery to actual collapse must nevertheless be construed to provide coverage for
imminent collapse. The court also did not purport to discern a public policy
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establishing a contractual entitlement to coverage for imminent collapse in all
cases. It simply construed the ambiguous collapse provision before it, as it was
required to do. (AIU Ins.[, supra,] 51 Cal.3d 807, 822.) In so doing, it was
required to resolve the ambiguity in favor of the insured and in accordance with
the reasonable expectations of the insured. (Kazi v. State Farm Fire & Casualty
Co. (2001) 24 Cal.4th 871, 879.) [¶] In construing the collapse provision in
Doheny [West] to provide coverage for both actual and imminent collapse, the
court expressly relied on the broad language of that particular policy. Specifically,
the court held that the ‘phrases “risk of loss,” and “involving collapse” ’
effectively ‘broaden[ed] coverage beyond actual collapse.’ The State Farm
collapse provision at issue in this case, however, does not contain any comparable
language that can be construed to extend coverage beyond actual collapse.”
However, “[n]otwithstanding the lack of ambiguity in State Farm’s collapse
provision,” the Court of Appeal held, “as a matter of public policy, that State Farm
must provide insurance benefits for imminent collapse of Rosen’s two decks.”
The Court of Appeal gave the following explanation for its decision not to
enforce this unambiguous coverage provision: “The notion that in the absence of
coverage for imminent collapse an insured may wait until the full or partial actual
collapse of a building simply to ensure coverage is troubling indeed. The actual
collapse of a building or any part of a building tragically can result in serious
injury or loss of human life, as well as substantial property damage. A
requirement that an insurer provide coverage when collapse is imminent clearly is
in the best interests not only of the insured and the insured’s visitors but also of the
insurer. Rectifying the problem prior to an actual collapse may well save lives and
money. Moreover, our holding does not unduly burden the insurer because its
liability is limited for a loss which is imminent, and, thus, soon to occur anyway.
Surely, an insurer’s exposure to liability will be far greater in the event of an
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actual collapse. [¶] Any holding to the contrary would encourage property
owners to risk serious injury or death or greater property damage simply to ensure
that coverage would attach. We cannot and will not sanction such a result. We
therefore conclude that notwithstanding the language of the collapse provision,
public policy mandates that State Farm afford Rosen coverage for the imminent
collapse of his decks.”
Applying the same logic, with the same lack of restraint, courts could
convert life insurance into health insurance. In rewriting the coverage provision to
conform to their notions of sound public policy, the trial court and the Court of
Appeal exceeded their authority, disregarding the clear language of the policy and
the equally clear holdings of this court. In Foster-Gardner, Inc. v. National Union
Fire Ins. Co. (1998) 18 Cal.4th 857, we held that an insurer’s duty to defend its
insured in a “suit seeking damages” was limited to a civil action prosecuted in
court, and did not extend to a proceeding conducted before an administrative
agency pursuant to an environmental statute. The Court of Appeal in Fireman’s
Fund Ins. Co. v. Superior Court (1997) 65 Cal.App.4th 1205, we noted with
approval, had rejected the “suggestion . . . ‘because it is in the nation’s best
interests to have hazardous waste cleaned up, our courts must construe insurance
policies to provide coverage for such remedial work lest the insureds be
discouraged from cooperating with the EPA.’ ” (Foster-Gardner, at p. 888.)
“[T]he Court of Appeal in Fireman’s Fund aptly stated, ‘While we agree that it is
in everyone’s best interests to have hazardous wastes cleaned up, we do not agree
that a California court may rewrite an insurance policy for that purpose or for any
purpose. This is a contract issue, and imposition of a duty to defend CERCLA
proceedings that have not ripened into suits would impose on the insurer an
obligation for which it may not be prepared. . . . Whatever merit there may be to
these conflicting social and economic considerations, they have nothing
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whatsoever to do with our determination whether the policy’s disjunctive use of
“suit” and “claim” creates an ambiguity.’ (Fireman’s Fund, supra, 65
Cal.App.4th at p. 1214, fn. 8, see also AIU [Ins.], supra, 51 Cal.3d at p. 818 [‘The
answer is to be found solely in the language of the policies, not in public policy
considerations’].)” (Ibid., fn. omitted.)
In
Lloyd’s of London, supra, 24 Cal.4th 945, we held that an insurer’s duty
to indemnify its insured for “all sums that the insured becomes legally obligated to
pay as damages” is limited to money ordered by a court, and does not extend to
expenses required by an administrative agency pursuant to an environmental
statute. We rejected the argument that we should rewrite the indemnification
provision, extending it to cleanup orders issued by an environmental agency, in
order “to advance the cleanup of a contaminated site and the abatement of the
contamination’s effects by calling in the insurer’s resources in supplement to those
of an insured that is prosperous or in place of those of an insured that is not. Our
reason is that we do not rewrite any provision of any contract, including the
standard policy underlying any individual policy, for any purpose. (See Aerojet-
General Corp. v. Transport Indemnity Co. [(1997)] 17 Cal.4th [38,] 75-76.) To do
so with regard to the standard policy, with which we are here concerned, might
have untoward effects generally on individual insurers and individual insureds and
also on society itself. Through the standard policy, individual insurers made
promises, and individual insureds paid premiums, against the risk of loss. To
rewrite the provision imposing the duty to indemnify in order to remove its
limitation to money ordered by a court might compel insurers to give more than
they promised and might allow insureds to get more than they paid for, thereby
denying their ‘general[] free[dom] to contract as they please[]’ of any effect in the
matter. (Id. at p. 75; accord, Linnastruth v. Mut. Benefit etc. Assn. (1943) 22
Cal.2d 216, 218.) It is conceivable that to rewrite the provision thus might result
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in providing society itself with benefits that might outweigh any costs that it might
impose on individual insurers and individual insureds. It is conceivable. But
unknown. Knowledge ‘depend[s] in large part on’ what we are ill suited for, that
is, the ‘amassing and analyzing of complex and extensive empirical data.’
(Aerojet-General Corp. v. Transport Indemnity Co., supra, 17 Cal.4th at p. 76.)
Without such knowledge we could not proceed.” (Lloyd’s of London, supra, 24
Cal.4th at pp. 967-968.)
Plaintiff contends that recent legislation establishing a limited new cause of
action for certain specified housing defects (Sen. Bill No. 800 (2001-2002 Reg.
Sess.) chaptered as Stats. 2002, ch. 722, § 3 [adding Civ. Code, § 895 et seq., eff.
Jan. 1, 2003]), read in light of our decision in Aas v. Superior Court (2000) 24
Cal.4th 627 (Aas), provides this court with a statutory basis for refusing to enforce
the plain language restricting the coverage of this policy for collapse to actual
collapse. The contention lacks merit.
In
Aas, supra, 24 Cal.4th 627, we applied the economic loss rule in a
negligence action by homeowners against the developer, contractor, and
subcontractors who built their dwellings. The plaintiffs alleged that their homes
suffered from many construction defects, but they conceded that many of the
defects had caused no bodily injury or property damage. The trial court barred
them from introducing evidence of the defects that had caused no injury to persons
or property. We upheld the trial court’s ruling. We explained that under the
economic loss rule, “appreciable, nonspeculative, present injury is an essential
element of a tort cause of action.” (Id. at p. 646.) “Construction defects that have
not ripened into property damage, or at least into involuntary out-of-pocket
losses,” we held, “do not comfortably fit the definition of ‘ “appreciable harm” ’—
an essential element of a negligence claim.” (Ibid.)
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In enacting Senate Bill No. 800 (2001-2002 Reg. Sess.), the Legislature
sought to respond to, among other things, “concerns expressed by homeowners
and their advocates over the effects” of our decision in Aas, supra, 24 Cal.4th 627
“that defects must cause actual damage prior to being actionable in tort.” (Sen.
Com. on Judiciary, Analysis of Sen. Bill No. 800 (2001-2002 Reg. Sess.) as
amended Aug. 28, 2002, p. 1.) In summary, Senate Bill No. 800 “[p]rovides for
detailed and specific liability standards for newly constructed housing.
Establishes definitions of construction defects. Creates a new prelitigation process
that requires that claimants alleging a defect give builders notice of the claim,
following which the builder has an absolute right to repair before the homeowner
can sue for a violation of those standards. [¶] If the builder fails to acknowledge
the claim within the time specified, elects not to go through the statutory process,
fails to request an inspection within the time specified, or declines the offer to
repair, or if the repair is inadequate, the homeowner is relieved from any further
prelitigation process. Provides third-party inspectors with immunity from
liability.” (Judicial Council of Cal., Court News Special Ed., 2002 Legis.
Summary (Dec. 2002) <http//www.courtinfo.ca.gov/courtnews/legsumdec02.pdf>
[as of June 9, 2003].)
Senate Bill No. 800 (2001-2002 Reg. Sess.), plaintiff argues, “affords this
Court with the statutory basis for rejecting [defendant’s] actual collapse definition:
requiring [plaintiff] to wait for the decks to actually collapse off the side of his
home before coverage would attach is akin to requiring a homeowner to wait for
damage to result from a defect before he can sue the homebuilder.” Plaintiff’s
analogy fails. Senate Bill No. 800 is applicable “only to residences originally sold
on or after January 1, 2003.” (Civ. Code, § 938.) It is one thing for the
Legislature to rewrite the rules for construction defect litigation for homes sold in
the future. In Aas, we emphasized that “the Legislature may add whatever
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additional protections it deems appropriate . . . .” (Aas, supra, 24 Cal.4th at p.
653.) However, it would be quite another thing for this court to rewrite the
coverage provision of an existing homeowners insurance policy to remove a
restriction. Again, by agreeing to this contract of insurance, the insurer made
promises, and the insured paid premiums, against the risk of loss. To rewrite the
provision imposing the duty to indemnify in order to remove its limitation to
actual collapse would compel the insurer to give more than it promised and would
allow the insured to get more than it paid for, thereby denying their freedom to
contract as they please. (Lloyd’s of London, supra, 24 Cal.4th at pp. 967-968.)
DISPOSITION
The judgment of the Court of Appeal is reversed and the matter remanded
for further proceedings consistent with this opinion.
BROWN,
J.

WE CONCUR:

GEORGE,
C.J.
BAXTER,
J.
CHIN,
J.
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CONCURRING OPINION BY MORENO, J.

I concur with the result. I also concur in the majority’s conclusion that the
coverage provision is unambiguous in this case. But I do not agree with the
majority’s conclusion that courts are forbidden from employing public policy when
determining how insurance policy clauses are to be interpreted and enforced. The
majority quotes from Certain Underwriters at Lloyd’s of London v. Superior Court
(2001) 24 Cal.4th 945, 968 (Lloyd’s of London), for the proposition that “ ‘we do not
rewrite any provision of any contract, [including an insurance] policy, for any
purpose.’ ” (Maj. opn., ante, at p. 8.) Lloyd’s of London in turn quotes Linnastruth v.
Mut. Benefit etc. Assn. (1943) 22 Cal.2d 216, 218 for the proposition that parties to an
insurance contract having the “ ‘general[] free[dom] to contract as they please.’ ”
(Lloyd’s of London, supra, 24 Cal.4th at p. 968.) Linnastruth in fact states that
“parties may contract as they please so long as they do not violate the law or public
policy” and that this principle “is applicable to insurance contracts.” (Linnastruth,
supra, 22 Cal.2d at p. 218, italics added.)
Notwithstanding the categorical statements of the majority and of Lloyd’s of
London, it is still true that we will not enforce terms of contracts that violate public
policy. The public policy in question may sometimes be based on statute (see, e.g.,
Wildman v. Government Employees Ins. Co. (1957) 48 Cal.2d 31) but does not
necessarily have to be  it can be based on other policies perceived to be contrary to
the public welfare. (See Atschul v. Sayble (1978) 83 Cal.App.3d 153, 162 [court
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refuses to enforce fee-for-referral agreements among attorneys as contrary to public
policy].) We have never held that this principle is inapplicable to insurance contracts.
(See AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822 [general contract
principles are applicable to insurance contracts].)
Indeed, in some instances, courts have modified or supplemented language in
insurance policies on essentially public policy grounds. For example, courts have
held that, notwithstanding clauses in insurance policies that require the insured’s
cooperation and timely notice of a claim to an insurer, breach of those terms would
not serve as a defense to insurance coverage if the insurer has not been prejudiced
thereby. (Northwestern Title Security Co. v. Flack (1970) 6 Cal.App.3d 134, 140;
Campbell v. Allstate Insurance Co. (1963) 60 Cal.2d 303, 306.)
The argument in favor of the Court of Appeal’s and the insured’s position
takes the above principles as a point of departure. The Court of Appeal reasoned that
there are compelling public policy grounds not to enforce the “actual collapse”
limitation at issue here when it would preclude coverage for imminent collapse. As
the court stated: “The notion that in the absence of coverage for imminent collapse an
insured may wait until the full or partial actual collapse of a building simply to ensure
coverage is troubling indeed. The actual collapse of a building or any part of a
building can tragically result in serious injury or loss of human life, as well as
substantial property damage. A requirement that an insurer provide coverage when
collapse is imminent clearly is in the best interests not only of the insured and the
insured’s visitors but also of the insurer. Rectifying the problem prior to an actual
collapse may well save lives and money. Moreover, our holding does not unduly
burden the insurer because its liability is limited for a loss that is imminent, and, thus,
soon to occur anyway. Surely, an insurer’s exposure to liability will be far greater in
the event of an actual collapse. [¶] Any holding to the contrary would encourage
property owners to risk serious injury or death or greater property damage simply to
2

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ensure that coverage would attach. We cannot and will not sanction such a result.
We therefore conclude that notwithstanding the language of the collapse provision,
public policy mandates that State Farm afford Rosen coverage for the imminent
collapse of his decks.”
The Court of Appeal’s reasoning is not without force. An insurance policy that
clearly establishes a financial incentive to maintain a hazardous condition injurious to
the public may well be contrary to public policy. This case is therefore
distinguishable from those cases cited by the majority in which enforcement of a
policy exclusion would not create such a perverse incentive but merely retard the
accomplishment of some worthwhile goal, such as cleanup of hazardous wastes.
(See, e.g., Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th
857.)
The Court of Appeal’s reasoning is, however, ultimately unpersuasive. In
determining whether a contract violates public policy, courts essentially engage in
a weighing process, balancing the interests of enforcing the contract with those
interests against enforcement. (Bovan v. American Horse Enterprises, Inc. (1988)
201 Cal.App.3d 832, 840-841, citing Rest.2d of Contracts, § 178.) But the cases
make clear that the judicial power to declare public policy in the context of
contract interpretation and enforcement should be exercised with great caution.
“ ‘ “ ‘The power of the courts to declare a contract void for being in contravention
of sound public policy is a very delicate and undefined power, and, like the power
to declare a statute unconstitutional, should be exercised only in cases free from
doubt.’ [Citation.] . . . ‘No court ought to refuse its aid to enforce a contract on
doubtful and uncertain grounds. The burden is on the [one challenging the
contract] to show that its enforcement would be in violation of the settled public
policy of this state, or injurious to the morals of its people.’ ” ’ ” (Bovan v.
American Horse Enterprises, Inc., supra, 201 Cal.App.3d at p. 839.)
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In this case, there is a strong public policy in favor of allowing insurers to
enforce unambiguous policy provisions, thereby encouraging stability in the
insurance industry and allowing insurers the benefit of the bargain created by such
unambiguous language. On the other hand, the extent of the danger to the public
that the Court of Appeal and plaintiff identify is very much in doubt. The
argument that literal enforcement of the policy provision at issue will create
substantial financial incentives to allow decks to collapse so as to injure the public
ignores the existence of various countervailing disincentives. These include the
tort duty imposed on property owners not injure others through their property’s
hazardous conditions, as well as the strong interest in keeping oneself, one’s
family, and persons invited onto one’s property, free from harm. Nor can we say
with confidence that the Court of Appeal’s conclusion is correct that its holding
would ultimately benefit the insurer  the insurer is in a far better position to
make that determination. Given these doubts, and given the strong policy in favor
of enforcing unambiguous terms, I cannot say the insured has carried its burden of
demonstrating that public policy compels us to invalidate or reinterpret the “actual
collapse” provision of this insurance policy.
MORENO, J.
WE CONCUR: KENNARD, J.
WERDEGAR,
J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Rosen v. State Farm General Insurance
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 98 Cal.App.4th 1322
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S108308
Date Filed: June 12, 2003
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Soussan G. Bruguera
__________________________________________________________________________________

Attorneys for Appellant:

Robie & Matthai, James R. Robie, Michael J. O'Neill; Dunn Koes, Pamela E. Dunn and Daniel J. Koes for
Defendant and Appellant.

Sonnenschein Nath & Rosenthal, Paul E. B. Glad and Cheryl Dyer Berg for National Association of
Independent Insurers, United Services Automobile Association and Fireman’s Fund Insurance Company as
Amici Curiae on behalf of Defendant and Appellant.

Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Appellant.

Morton, Lulofs & Wood, William R. Morton and Karen D. Marcus for California State Automobile
Association Inter-Insurance Bureau as Amicus Curiae on behalf of Defendant and Appellant.

Horvitz & Levy, Barry R. Levy and Peter Abrahams for Farmers Insurance Exchange, Fire Insurance
Exchange, Truck Insurance Exchange, American International Companies and Personal Insurance
Federation of California as Amici Curiae on behalf of Defendant and Appellant.

Hancock Rothert & Bunshoft, William J. Baron and Kathryn C. Ashton for London Market Insurers as
Amicus Curiae on behalf of Defendant and Appellant.

Summers & Shives, Robert V. Closson and Pamela A. Mckay for Professional Association of Specialty
Contractors as Amicus Curiae on behalf of Defendant and Appellant.

Wiley Rein & Fielding, Laura A. Foggan, John C. Yang, Ederlina Y. Co; Sinnott, Dito, Moura & Puebla,
Randolph P. Sinnott and JoLynn M. Pollard for Complex Insurance Claims Litigation Association as
Amicus Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Verboon, Milstein & Peter and Wayne S. Kreger for Plaintiff and Respondent.

Chipman Miles & Associates, Chipman Miles, Brian Miles and Joel M. Westbrook for United
Policyholders as Amicus Curiae on behalf of Plaintiff and Respondent.
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Counsel who argued in Supreme Court (not intended for publication with opinion):

Pamela E. Dunn
Dunn Koes
253 So. Marengo Avenue
Pasadena, CA 91101
(626) 685-9500

Wayne S. Kreger
Verboon, Milstein & Peter
2800 Donald Douglas Loop North
Santa Monica, CA 90405
(310) 396-9600

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Opinion Information

Date:	Docket Number:
Thu, 06/12/2003	S108308

Disposition
Jun 12 2003	Opinion: Reversed

Dockets
Jul 15 2002	Petition for review filed   by counsel for appellant State Farm General Insurance Company.
Jul 15 2002	Record requested
Jul 15 2002	Received Court of Appeal record   1 doghouse
Jul 19 2002	Request for depublication (petition for review pending)   by Professional Assn. of Speciality Contractors (non-party)
Jul 24 2002	Answer to petition for review filed   counsel for resp George Rosen
Aug 1 2002	Request for depublication (petition for review pending)   by London Market Insurers (non-party)
Aug 28 2002	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Sep 11 2002	Certification of interested entities or persons filed   counsel for respondent (G. Rosen)
Sep 12 2002	Certification of interested entities or persons filed   appellant State Farm General Insurance Company
Sep 25 2002	Request for extension of time filed   by aplt to file the opening brief on the merits, 10/28.
Oct 4 2002	Filed:   by counsel for appellant (State Farm Gen. Ins. Co.) Supplemental Declaration in Support of Appli.. for Extension of Time.
Oct 17 2002	Extension of time granted   to 10-28-02 for aplt to file the opening brief on the merits. No further extensions of time will be granted.
Oct 29 2002	Opening brief on the merits filed   by aplt State Farm (timely-CRC 40k)
Nov 27 2002	Answer brief on the merits filed   respondent George Rosen
Dec 16 2002	Request for extension of time filed   reply brief/merits to 12-23-02
Dec 19 2002	Extension of time granted   Appellant's time to serve and file the reply brief on the merits is extended to and including December 23, 2002.
Dec 26 2002	Reply brief filed (case fully briefed)   by counsel for aplt State Farm (timely per CRC 40k)
Dec 27 2002	Received application to file amicus curiae brief; with brief   National Association of Independent Insurers, et al. (non-party) in support of appellant.
Jan 8 2003	Permission to file amicus curiae brief granted   by National Association of Independent Insurers in support of appellant. An answer may be filed by any party w/in 20 days.
Jan 8 2003	Amicus Curiae Brief filed by:   Nat. Assn. of Independent Insurers in support of aplt.
Jan 16 2003	Received application to file Amicus Curiae Brief   by Professional Assn. of Specialty Contractors in support of appellant.
Jan 22 2003	Received application to file amicus curiae brief; with brief   by Cal. State Auto Assn. Inter-Insurance Bureau in support of aplt State Farm
Jan 22 2003	Received application to file amicus curiae brief; with brief   from Pacific Legal Foundation in support of aplt State Farm
Jan 22 2003	Received application to file amicus curiae brief; with brief   amici Farmers Insurance Exchange, etal [in support of State Farm]
Jan 22 2003	Received application to file amicus curiae brief; with brief   Complex Insurance Claims Litigation Association
Jan 24 2003	Received application to file amicus curiae brief; with brief   by United Policyholders in support of resp.
Jan 24 2003	Received application to file amicus curiae brief; with brief   by London Market Insurers in support of aplt
Feb 10 2003	Permission to file amicus curiae brief granted   by Professional Association of Speciality Contractors in support of aplt. Any answers due w/in 20 days.
Feb 10 2003	Amicus Curiae Brief filed by:   Professional Association of Speciality Contractors in support of Aplt.
Feb 10 2003	Permission to file amicus curiae brief granted   by Calif. State Auto Association Inter-Insurance Bureau in support of aplt. Any answers due w/in 20 days.
Feb 10 2003	Amicus Curiae Brief filed by:   Calif. State Auto Assn. Inter-Ins. Bureau in support of aplt.
Feb 10 2003	Permission to file amicus curiae brief granted   by Pacific Legal Foundation in support of aplt. Any answers due w/in 20 days.
Feb 10 2003	Amicus Curiae Brief filed by:   Pacific Legal Foundation in support of aplt.
Feb 10 2003	Permission to file amicus curiae brief granted   by Farmers Insurance Exchange, et al. in support of aplt. Any answers may be filed w/in 20 days.
Feb 10 2003	Amicus Curiae Brief filed by:   Farmers Insurance Exchange, et al. in support of aplt.
Feb 10 2003	Permission to file amicus curiae brief granted   by Complex Insurance Claims Litigation Association in support of aplt. Any answers due w/in 20 days.
Feb 10 2003	Amicus Curiae Brief filed by:   Complex Insurance Claims Litigation Assn. in support of aplt.
Feb 10 2003	Permission to file amicus curiae brief granted   by United Policyholders in support of Respondent. Any answers due w/in 20 days.
Feb 10 2003	Amicus Curiae Brief filed by:   United Policyholders in support of Respondent.
Feb 10 2003	Permission to file amicus curiae brief granted   by London Market Insurers in support of aplt. Any answers due w/in 20 days.
Feb 10 2003	Amicus Curiae Brief filed by:   London Market Insurers in support of aplt.
Feb 19 2003	Filed:   notice of association of counsel for aplt.
Mar 4 2003	Response to amicus curiae brief filed   by aplt to the A/C brief of United Policyholders (timely per CRC 40k)
Mar 6 2003	Case ordered on calendar   4-2-03, 1:30pm, L.A.
Mar 13 2003	Argument rescheduled   to 9am (Apr 2 in L.A.)
Apr 2 2003	Cause argued and submitted
Jun 12 2003	Opinion filed: Judgment reversed   and remanded. Majority Opinion By: Brown, J. -- joined by George, C. J., Baxter, and Chin, JJ. Concurring Opinion by Moreno, J. -- joined by Kennard and Werdegar, JJ.
Jul 15 2003	Remittitur issued (civil case)
Aug 4 2003	Note:   case record transmitted to L.A. office for delivery to C/A

Briefs
Oct 29 2002	Opening brief on the merits filed
Nov 27 2002	Answer brief on the merits filed
Dec 26 2002	Reply brief filed (case fully briefed)
Jan 8 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Amicus Curiae Brief filed by:
Mar 4 2003	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website