KAC3 Enterprises v. Cassword Ins. Agency






Filed 9/8/11 KAC3 Enterprises v. Cassword Ins. Agency CA6




NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

KAC3 ENTERPRISES, INC., Plaintiff and Appellant, v. CASSWOOD INSURANCE AGENCY et al., Defendants and Respondents.	H035974 (Santa Clara County Super. Ct. No. CV112624)
KAC3 ENTERPRISES, INC., Plaintiff and Appellant, v. CASSWOOD INSURANCE AGENCY, LTD., et al., Defendants and Respondents.	H036061 (Santa Clara County Super. Ct. No. CV099414)

I. Introduction
Plaintiff KAC3 Enterprises, Inc., dba Five Star Roofing (hereafter, Five Star), sued defendants Casswood Insurance Agency, Ltd. and Manuel Angel alleging that defendants had negligently or fraudulently misrepresented the coverage of general liability insurance they had procured for Five Star in 2005 and 2006. Five Star suffered losses in both policy years that were not fully covered by the policies. The trial court granted defendants’ motions for summary judgment on the ground that Five Star could not produce evidence of alternate policies that would have been available during the relevant time periods. We shall affirm.
II. Procedural Background
This matter involves two separate lawsuits. Case No. H036061 (the 2005 case) involves a policy of general liability insurance secured by defendants for Five Star in July 2005. Case No. H035974 (the 2006 case) involves the policy they obtained in July of 2006. In both cases Five Star alleged that defendants committed fraud, negligence, and breached their fiduciary duty in failing to secure policies with adequate coverage for open roof operations.[1]
In September 2009, Five Star filed a request for leave to file a fourth amended complaint in the 2005 case to add a cause of action for “aiding and abetting” and for violation of Business and Professions Code section 17200. The trial court denied the request in January 2010.
On March 19, 2010, defendants filed motions for summary judgment in both cases. The motions were based upon defendants’ assertion that Five Star could not prove causation, an element common to all causes of action alleged against defendants. According to defendants, Five Star would be unable to show that it could have obtained general liability insurance for 2005 and 2006 with the coverage it supposedly sought, at a price Five Star was willing to pay. The trial court granted the motions. Five Star has timely appealed from the ensuing judgments in each case. On our own motion we have ordered the two cases considered together in one opinion.
III. The Summary Judgment Motions
A. The Summary Judgment Framework
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In order to prevail on a motion for summary judgment, a defendant must show that one or more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) In the present case defendants sought summary judgment on the ground that Five Star would be unable to prove an essential element--causation--of each cause of action alleged against defendants. Thus, defendants had the burden to present evidence that Five Star “ ‘does not possess and cannot reasonably obtain’ ” evidence to support the challenged element. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003; S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.)
Because a motion for summary judgment raises only questions of law, we independently review the parties’ supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.) “ ‘We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ ” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.)
B. The Pleadings
The operative pleading in the 2005 case alleges that the 2005 policy of insurance defendants provided did not contain coverage for water damage resulting from open roof operations. Indeed, the policy specifically excluded such coverage. In December 2005, Five Star suffered a loss attributable to open roof operations that was not covered by the 2005 policy. The 2006 policy did cover open roof operations but coverage was capped at $50,000. Five Star alleged that it was unaware of the cap until after it suffered a loss of more than $100,000 in November 2006. Five Star maintained that, had it known of the absence or limitation of open roof coverage, it would have purchased insurance with full coverage or would have shut down operations.
C. Defendants’ Evidence
Defendants’ moving papers established the following:
In July 2005, Five Star had had no general liability insurance in effect for over four months. Five Star was unable to produce, in response to defendants’ discovery requests, any documents evidencing that it had been covered by any general liability insurance policy since its policy with Transworld Building Trades and Contractors Liability Association, Inc. (TBTCLA) expired on November 13, 2003. In February 2004, Five Star rejected as too expensive two quotes for general liability insurance with premiums of $103,000 and $74,000. In March 2005, Alan Nelson, Five Star’s principal, did not want a TBTCLA policy because that insurer’s premiums had “skyrocketed.”
In April 2005, defendants gave Five Star a proposal for general liability insurance from United Contractors Insurance Company (UCIC) with a premium of almost $30,000. At the time, defendants’ only market for placement of Five Star’s general liability insurance was UCIC. Five Star rejected the proposal. At Nelson’s request, defendants lowered Five Star’s projected revenue and came up with a revised proposal for a general liability policy from UCIC having a premium of $21,246. Five Star accepted that proposal and the coverage became effective July 29, 2005. The policy was delivered to Five Star in August. It excluded coverage for bodily injury or property damage resulting from open roof operations.[2]
Five Star suffered a loss in December 2005 when rain damaged property undergoing a roof replacement. Despite the fact that UCIC denied the claim, Five Star did not attempt to replace the UCIC policy until it expired in July 2006. Defendants asked Five Star to produce the person most knowledgeable about the insurance policies that Five Star “contends it would have purchased instead of” the UCIC policy had it known of the open roof exclusion. Five Star produced Nelson who was unable to identify as to name and specific terms “any other insurer(s) that would have agreed to underwrite a general liability policy for [Five Star] prior to December 2005.”[3]
In July 2006, Nelson wanted to replace the UCIC policy with one that would cover open roof operations. Defendants obtained a quote for a policy with Preferred Contractors Insurance Company (PCIC) through Magnum Insurance Services, a wholesale insurance broker. Due to the size of Five Star, the type of roofing work it did, its insurance history, and the December 2005 loss, defendants had only one market, PCIC, for Five Star’s general liability insurance. The PCIC policy also had an exclusion for open roof operations but Five Star could repurchase the coverage subject to a $50,000 cap. Five Star elected to repurchase the open roof coverage with the $50,000 cap, the total premium for which was $32,000. Magnum did not tell defendants that repurchase of the open roof operations coverage was capped at $50,000.
Five Star suffered a loss in November 2006 that was covered only up to the $50,000 cap. Five Star allowed the PCIC policy to remain in effect through July 2007. When the policy expired, Five Star did not obtain new coverage for several months. The only quotation for general liability insurance that Nelson can recall having obtained in 2006 is the PCIC quotation he accepted. Five Star has been unable to produce any written quotes for 2006 other than the PCIC quote. Nelson could not identify as to name and specific terms any other insurer that would have agreed to underwrite a general liability policy for Five Star prior to November 2006.
Defendants produced the declaration of R.L. Milsner, the founder and president of R.L. Milsner brokerage. Milsner is an experienced insurance broker and has been a Chartered Property Casualty Underwriter since 1974. For most of his career he has been involved in “various aspects of liability insurance for contractors in the construction business, including roofing contractors.” His declaration lists experience in casualty underwriting for contractors in the construction business beginning in 1962. According to Milsner, “[i]n 2005 and 2006, contractors in general, and roofing contractors in particular, faced a difficult insurance marketplace for commercial general liability insurance due to the extensive (and expensive) growth of construction defect litigation in California.” Insurance became more costly and more restrictive in terms of coverage. “Smaller California roofing contractors with gross receipts of less than $1 million, and particularly those with a poor loss history or gaps of time without general liability insurance, were especially difficult to place due to lack of available markets.” Those who were willing to write insurance for California roofing contractor risks were “most always nonadmitted” insurers who attempted to control their exposure through multiple exclusions.
The Milsner declaration continued: “In 2005 and 2006, the normal practice for a California roofing contractor to obtain general liability insurance was to seek the assistance of a broker who would submit an application to a surplus lines company for evaluation.” As far as Milsner was aware, “there were no standard general liability insurers in 2005 or 2006 which gave authority to an insurance producer to bind coverage for California roofing contractor risks. Similarly, in this time frame there were, to my knowledge, no surplus lines companies which gave binding underwriting authority for California roofing contractor risks to insurance agents or brokers.” In other words, before the insurance agent could give the client a quote, the underwriter would have to evaluate the roofer’s risk based upon the types of roofing construction performed, loss experience, size of the company, financial status, and insurance history. “Thus, in 2005 and 2006, whether and on what terms a California roofing contractor risk would be underwritten and issued a general liability insurance policy must be determined by an underwriter.”
D. Defendants Carried Their Initial Burden
In order to recover for negligence or fraud Five Star must show that defendants negligently or fraudulently failed to disclose the lack of adequate coverage for open roof operations. Five Star must also show that defendants’ conduct was “a legal (proximate) cause of the injury. The foundational element of legal cause is cause in fact. It is necessary to show that the conduct contributed in some way to the injury (here the lack of coverage), so that ‘but for’ the conduct the injury would not have occurred [citations]. If the act or omission was a substantial factor in bringing about the result, it will be regarded as a legal cause of the injury.” (Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803, 811 (Greenfield).) Defendants did not challenge Five Star’s case on the elements of duty or breach or on the allegation that defendants had intentionally misrepresented the extent of coverage. Defendants maintained only that, even if they had improperly failed to disclose the coverage gaps, Five Star could not prove that it could have found full coverage at the time these two policies were placed so that the injury (lack of coverage) was not caused by defendants’ alleged wrong.
Five Star maintains that defendants failed to carry their initial burden of negating the causation element because the evidence they submitted does not expressly state that Five Star would not have been unable to obtain full coverage. But defendants did not have to affirmatively negate an element of Five Star’s case. Defendants could carry their burden by showing that Five Star did not have and could not reasonably obtain evidence to support its claims. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003.) Defendants carried that burden by showing that they had asked Five Star to produce evidence of an alternate policy that would have been available to it and Five Star was unable to do so. Defendants also demonstrated affirmatively, with regard to the 2006 policy, that PCIC was its only market for a policy containing coverage for open roof operations.
As to the 2005 policy, one could infer that Five Star would have been able to find a policy with some open roof operations coverage since defendants had been able to secure the PCIC policy just seven months after the December 2005 loss. But since Five Star maintains that the PCIC policy was also unacceptable, the inference is not material. There is no evidence that Five Star could have obtained in 2005 or 2006 a policy with the full coverage for open roof operations it now claims to have demanded.
On Five Star’s alternate theory, which was that had it known it did not have full coverage for open roof operations it would have shut down the business, defendants produced evidence to show that Five Star actually operated at times when it had no general liability coverage at all. There was no evidence of coverage for four months prior to the 2005 policy period and for several months following the 2006 policy period. Furthermore, after discovering the limits and exclusions of the two policies at issue, Five Star did not attempt to cancel the policies or shut down the business. This was sufficient to negate Five Star’s claim that absent adequate coverage it would have avoided the work altogether.
E. Five Star’s Evidence
Five Star did not dispute any of defendants’ evidence except the assertion that UCIC and PCIC were the only markets defendants had for general liability insurance for Five Star for 2005 and 2006, respectively. Five Star based its dispute upon excerpts from the deposition of Kevin Easterly, an insurance broker since 1987, who sold insurance to Five Star in 2001. Easterly had testified that the market for construction liability coverage following the September 11, 2001 terrorist attacks had become very “hard.” He agreed that by 2005 and 2006, the market was “moderate.” As far as whether Five Star could have obtained a policy in 2005 without an open roof operations exclusion, Easterly testified, “[I]s there other carriers that could have written him in 2005, I mean, I--you know, probably. But as far as the premiums and the--you know, based on the loss history and everything else, it’s undetermined what--it’s hard to say exactly what the premium would be.”
When asked if he was aware of “any insurance company that would have issued a policy definitely to Five Star in the summer of 2006 without an absolute open roof exclusion” Easterly responded, “I don’t know. You know, its--again, an insurance needs to underwrite the policy and--yeah, there’s a good chance that he could have gotten coverage. I mean, there’s always a chance.” Easterly explained, however, that you have to submit it to the underwriter to “know for sure” and agreed that it would be speculation to say “whether any insurance company would have definitely issued Five Star a policy without an absolute open roof exclusion in 2006.” Easterly also testified that of the risk retention groups of which he was aware, only PCIC did not absolutely exclude coverage for open roof operations.
Five Star submitted the declaration of its expert, Clinton Miller. Miller’s expertise was outlined in his curriculum vitae attached to his declaration. That document showed that Miller had worked as an insurance adjuster from 1963 through 1987 and the description of his expertise focuses upon his experience as an adjuster. Miller reviewed Easterly’s deposition, Milsner’s declaration, and information from Nelson pertaining to Five Star’s size, loss record, and operations. Based upon these materials, Miller stated, “Five Star Roofing most probably could have obtain [sic] liability coverage with a limited open roof exclusion in both 2005 and 2006, and the cost given, Five’s [sic] Star’s volume and the time period, and all the documents presented, would have been $15,000 to $30,000.”
Five Star also submitted Nelson’s declaration, which stated, “Angel admitted to me and my attorney that he made a mistake, and thought there was coverage.” Nelson further declared that “for the last 10 years Five Star has had liability insurance over 90% of the time.” He blamed the 2005 gap in coverage on the fact that the corporation was being formed and operations nearly shut down. A more recent gap in coverage was due to the collapse of the roofing market. Five Star “was capable of, and would have been able to afford paying $50,000 in 2005 and 2006, for liability coverage, with a limited open roof exclusion, if that was what was necessary to get the coverage.” Finally, “If for some reason Five Star would not have been able to afford liability coverage with a limited open roof exclusion in 2005 or 2006, I would have shut the business down, and thus avoided the losses sustained.”
F. Evidentiary Rulings
Defendants objected to Five Star’s use of the Easterly opinion to the extent Easterly opined that it was “probable” or that there was a “good chance” that Five Star could have found full coverage during the relevant time frame. The trial court sustained the objections and Five Star does not challenge that ruling on appeal.
Defendants objected to Miller’s opinion regarding the availability and cost of an alternative policy, arguing that he was not a competent expert, his opinion lacked foundation, was speculative, irrelevant, vague and ambiguous. The trial court sustained this objection but did not specify upon which basis it did so.
Five Star argues that the trial court’s ruling was error, arguing only that Miller was qualified to testify as an expert. Five Star does not address the merits of the opinions Miller advanced. Pursuant to Evidence Code section 801, subdivision (a), a person who qualifies as an expert may give testimony in the form of an opinion if the subject matter of that opinion is “sufficiently beyond common experience that the opinion of [the] expert would assist the trier of fact.” As Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, explained: “[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise.” An expert’s opinion based upon assumptions of fact without evidentiary support, or an expert’s opinion based upon speculative or conjectural factors, has no evidentiary value and may be excluded. Furthermore, “An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.” (Id. at pp. 1117-1118.)
“A trial court exercises discretion when ruling on the admissibility of expert testimony under Evidence Code section 801, subdivision (b). If the court excludes expert testimony on the ground that there is no reasonable basis for the opinion, we review the exclusion of evidence under the abuse of discretion standard. (People v. Mickey (1991) 54 Cal.3d 612, 687-688; People v. Bui (2001) 86 Cal.App.4th 1187, 1196.) To the extent the ruling is based on the trial court’s conclusion of law, we review the legal conclusion de novo. (Penner v. County of Santa Barbara (1995) 37 Cal.App.4th 1672, 1676.)” (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.)
Given the absence of argument on the validity of Miller’s opinions, we could treat the point as waived. (See Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1; Cal. Rules of Court, rule 8.204(a)(1)(B).) Nevertheless, we dispose of it on its merits. Even if we accept that Miller’s credentials qualified him to render the opinion, Miller’s opinion that Five Star could have obtained a “limited open roof exclusion” adds nothing to either case since Five Star had a limited open roof exclusion in 2006 and now claims that it was inadequate. Furthermore, even if the evidence is relevant to some material fact in the case, there is no apparent basis for Miller’s estimate that the cost of a limited open roof exclusion would have been somewhere between $15,000 and $30,000. There is nothing in his declaration or in his curriculum vitae from which he could have drawn these numbers. Since the opinion is both irrelevant and unsubstantiated, the trial court did not err in excluding it.
G. Five Star Failed to Raise a Triable Issue of Fact
As to the remaining evidence, there is no triable issue of fact. Five Star contends that its record of maintaining liability insurance with coverage for open roof operations “90% of the time,” Easterly’s testimony that the market was “softer” in 2005, and Angel’s admission that he thought the 2005 policy contained open roof coverage, supports a finding that the desired coverage was available in 2005 and 2006. Neither Easterly nor Angel identified any particular policies, coverage, or premiums that would have been available to Five Star in 2005 or 2006. Indeed, Easterly conceded that to do so would be purely speculation. That is just not enough. A jury would need to know how much coverage was available and what it would cost before it could decide whether and to what extent defendants had caused Five Star to be damaged by having purchased the unacceptable insurance.
The problem involves the interrelated elements of causation and damages. Damages that are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. (Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559.) Without knowing what policy might have been available, what it would have cost, and how much it would have covered, Five Star cannot show that defendants caused it any nonspeculative amount of loss. While the evidence arguably allows for the inference that Five Star could have found coverage somewhere, there is nothing from which to determine the extent of available coverage and whether its cost would have been acceptable to Five Star. Absent such evidence it would be impossible to decide whether defendants caused Five Star any damage.
Five Star cites Greenfield, supra, 19 Cal.App.3d 803, in support of the argument that we may infer from the evidence in the record that an alternate policy would have been available. In Greenfield, the plaintiff wanted coverage for loss resulting from mechanical breakdown of its equipment. The defendants told him that they had obtained coverage for mechanical breakdown when in fact they had not. As in this case, the plaintiff relied upon that representation and did not look elsewhere for coverage. But, “within a few days after learning that he was not covered, Greenfield was able to find a company that would write such coverage. While the [alternate] policy was not received in evidence, the letter from its agent, together with the testimony of [the defendants’ agents] that the policy was issued and covered mechanical breakdown, are sufficient to support a finding that the [alternate] policy would have been available to Greenfield before his loss occurred. If [defendants] had not misrepresented the fact of coverage under the [original] policy, it is reasonable to infer that Greenfield would have obtained the coverage from [the alternate insurer].” (Id. at p. 811, italics added.) In other words, the plaintiff actually obtained an alternate policy promptly after discovering he lacked the coverage and, therefore, it was reasonable to infer that he could have secured the same policy when he accepted the inadequate policy the defendants provided. This record contains no similar evidence.
Finally, in its brief pertaining to the 2005 case Five Star adds this one-sentence argument: “Moreover, if the coverage was not available, [Five Star] would have not performed the work, and not sustained the losses.” In the brief pertaining to the 2006 case, Five Star states in the concluding paragraph: “Finally, if [Five Star] had known there was no coverage, would have shut down [sic] the business, and not run the risk of the losses sustained.” Again, the lack of any argument tempts us to treat the point as waived. Nevertheless, we consider it briefly. Although Nelson did state in his declaration submitted with Five Star’s opposition to the summary judgment motions, the statement directly conflicts with his acknowledgment that he operated without any insurance at all for at least several months and continued to operate with the supposedly unacceptable insurance in place after he learned of the alleged deficiencies. It is well established that “a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.) In determining whether any triable issue of material fact exists, the trial court may give “great weight” to admissions made in discovery and “disregard contradictory and self-serving affidavits of the party.” (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.) “Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and ‘ “conclude there is no substantial evidence of the existence of a triable issue of fact.” ’ ” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087, quoting D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) The trial court apparently concluded, correctly in our view, that in light of the sworn admission that Nelson operated his business at times he knew he was uninsured, Nelson’s perfunctory assertion that he would have shut down his business had he known of the gaps in the coverage defendants’ provided was not substantial evidence sufficient to raise a triable issue of fact.
IV. The Motion to Amend
As to the 2005 case, Five Star also argues that the trial court erred in refusing to grant leave for it to file a fourth amended complaint. The proposed pleading would have added causes of action for “aiding and abetting” and Business and Professions Code, section 17200.
“It is well established that ‘California courts have “a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” [Citation.] Indeed, “it is a rare case in which ‘a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.’ ” [Citation.]’ (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.)” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.)
Five Star maintains that the trial court’s refusal to allow it to file a fourth amended complaint caused it to lose two meritorious causes of action, but, again, Five Star does not tell us why this is so. Five Star states the law, which is that Business and Professions Code section 17200 “can be based on a violation of virtually any law” and the Five Star “alleged multiple predicate legal grounds for the claim.” But Five Star does not tell us what those grounds were, nor how a cause of action for “aiding and abetting” could be a viable cause of action against defendants here. Because Five Star provides no comprehensible argument on this point, we consider it waived. (See Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448; Dills v. Redwoods Associates, Ltd., supra, 28 Cal.App.4th at p. 890, fn. 1.)



V. Disposition
The judgment is affirmed.





Premo, J.





WE CONCUR:






Rushing, P.J.








Elia, J.



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