Federated Mutual Ins. Co. v. Nat. Union Fire Ins. Co.
Filed 8/13/07 Federated Mutual Ins. Co. v. Nat. Union Fire Ins. Co. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
FEDERATED MUTUAL INSURANCE COMPANY, Plaintiff, Cross-Defendant, and Appellant, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant, Cross-Complainant, and Respondent. | B188722 (Los Angeles County Super. Ct. No. BC318374 ORDER MODIFYING CONCURRING OPINION [NO CHANGE IN JUDGMENT] |
The entire concurring opinion filed on July 16, 2007 is deleted and a new concurring opinion is included as follows:
I concur.
Both parties moved for summary judgment. Plaintiff Federated Mutual Insurance Company on appeal requested reversal so that judgment could be entered on its motion for summary judgment. Neither party identified any disputed issues of fact. The action involves the interpretation of written documents.
After saying the defendants additional insured endorsement is clear and unambiguous, the majority states there is a triable issue as to whether there is coverage under that endorsement. Not all such issues are identified. The majority does refer to at least onewhether the forklift company engaged in active negligence. I suppose a determination of the cause of injury conceivably could bear on the assertions that coverage was limited by the indemnification clause (presumably including the language assumes all risks and liability for) and that the liability did not arise out of the insureds operations. There may be factual issues that arise out of any claimed ambiguity in the writings.
I agree that defendant has not established as a matter of law that it had no obligation to provide a defense. (See generally Croskey, et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2006) 7:1409 to 7:1409.10, pp. 7E-6 to 7E-11; 9:63.3, pp. 9-22 to 9-23.) On remand, there can be a determination of whether and to what extent there are factual issues.
MOSK, J.
Publication Courtesy of California lawyer directory.
Analysis and review provided by Escondido Property line attorney.
