Prichard v. Liberty Mutual Ins. Co. (2000)

CHARLES E. PRICHARD et al., Plaintiffs and Respondents, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant and Appellant.

[Modification of Opinion fn. * (84 Cal. App. 4th 890 ) on denial of petition for rehearing.]

SILLS, P. J.-

The petition for rehearing by Liberty Mutual Insurance Company is denied.

The request of Robert A. Olson of Greines, Martin, Stein & Richland to appear as amicus curiae to request clarification or modification of the opinion is denied.

The petition for rehearing by Charles E. Prichard et al. for rehearing is denied.

The opinion filed in this case on November 8, 2000, is hereby modified as follows:

On page 10 of the slip opinion, at the end of the first sentence in the last paragraph (ending with the words [84 Cal. App. 4th 900 , advance report, last par., line 2], "'well founded'") insert the following new footnote 9:

Liberty's argument that the motion was denied by operation of law because the 60-day time limit specified in section 660 of the Code of Civil Procedure ("the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 . . .") had already expired is unavailing. The minute order accompanying the judgment did not direct the clerk to mail notice of entry of judgment. (See Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 64 ["To avoid uncertainty, we clarify that . . . when the clerk of the court mails a file-stamped copy of the judgment, it will shorten the time for ruling on the motion for a new trial [85 Cal. App. 4th 1023b] only when the order itself indicates that the court directed the clerk to mail 'notice of entry' of judgment"].) Thus, while we grant Liberty's request that we take judicial notice of the fact that Orange County is not a judgment book county, the fact does it no good.

On page 14 of the slip opinion, at the end of the second complete paragraph (ending with the words [84 Cal. App. 4th 903 , advance report, 3d par., lines 2-3], "even after the close of evidence") insert the following new footnote 11:

A fact that distinguishes this case from dicta in California Union Ins. Co. v. Club Aquarius (1980) 113 Cal. App. 3d 243, 247. In a short, one-paragraph observation, the Club Aquarius court suggested that because the trial court in the underlying federal case had made it "clear" by formal findings of fact that "the [underlying] case, in fact, did not involve the limited risk set forth in [the] policy," the insurer there had "the right to withdraw from the defense" at that point. In Club Aquarius there was no suggestion that an appeal in the underlying case might yet result in indemnification liability for the insurer, and so the court never contemplated that possibility in its dicta.

On page 21 of the slip opinion, at the end of the third full paragraph, at the end of the sentence [84 Cal. App. 4th 909 , acvance report, 4th par., line 4], "This error creates yet more complications." insert the following new footnote 20:

One complication, however, that we are spared is the whether the settlement of the underlying action without Liberty's consent operates as a per se barrier to any indemnity recovery by Prichard. While Liberty argues that the settlement operates as a bar to any claim for costs taxed against Prichard in the underlying suit (an issue that we discuss below), it does not argue that the very fact of a settlement without consent bars Prichard's indemnity claim.

Other footnotes in the opinion, and any internal references to footnotes, should be correspondingly renumbered. These modifications do not effect a change in the judgment.

Crosby, J., and Bedsworth, J., concurred. FN *. this modification requires movement of text affecting pages 894-906 and 908-913 of the bound volume report.