CD Investment Co. v. California Ins. Guarantee Assn. (2000)

CD INVESTMENT COMPANY et al., Plaintiffs and Appellants, v. CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, Defendant and Respondent.

[Modification of Opinion (84 Cal. App. 4th 1410 ) on denial of petition for rehearing.]

THE COURT. fn. † -

It is ordered that the opinion filed herein on November 27, 2000, be modified as follows:

1. On page 3, delete the second full paragraph (which begins with "CD Investment had" and ends with "January 1, 1986.") [84 Cal. App. 4th 1416 , advance report, 6th par.], and insert the following new paragraph:

CD Investment had a total of five policies from the insolvent insurers: Mission National provided coverage for one year, and Enterprise subsequently issued policies covering three and one-half years. According to CD Investment, the policies covered five successive periods, from July 29, 1981, to January 1, 1986.

2. On page 6, in the first paragraph under the subheading "Claimant," delete the second sentence ("CD Investment is a 'claimant' . . . .'") [84 Cal. App. 4th 1420 , advance report, 1st par., lines 1-2] and replace it with the following sentence:

CD Investment is a "claimant" because it is either an "insured making a first party claim or [a] person instituting a liability claim . . . ."

3. On page 16, in the second full paragraph (which begins with "For example"), delete the seventh sentence in its entirety ("Yet, such a result [86 Cal. App. 4th 25h] . . . in coverage.") [84 Cal. App. 4th 1428 , advance report, 2d par., lines 9-11].

4. On page 16, in the first sentence of the third full paragraph (which begins with "In contrast") [84 Cal.App.4th 1428EL> , advance report, 3d par,. lines 2-3], delete the phrase "its reasonable expectations would be satisfied," such that the new sentence reads as follows:

In contrast, if the insured had purchased only the policy from the insolvent insurer, it would still recover $500,000 (paid by CIGA) and would receive all of the insurance benefits for which it had paid.

5. On page 16, in the last paragraph on that page (which begins with "In closing"), after the first sentence (which ends with "another is not.") [84 Cal. App. 4th 1428 , advance report, last par., line 2], insert the following sentence:

In this case, CD Investment contends that the five policies from the insolvent insurers provided it with four and one-half years of continuous coverage, and that, as to each policy, CIGA is obligated to pay its full $500,000 cap, and there is no other available insurance. We use the term "successive" policies to describe this set of circumstances.

6. On page 16, in the last paragraph on that page (which begins with "In closing"), at the end of the last sentence (". . . secondary insurers].)") [84 Cal. App. 4th 1428 , advance report, last par., line 8], add the following footnote:

1 In a petition for rehearing, CIGA argues for the first time that, even if it is liable for indemnity, the solvent insurers should bear all of CD Investment's defense costs. But in its respondent's brief, CIGA acknowledged that CD Investment's out-of-pocket expenses consisted of both indemnity and defense costs, and it drew no distinction between them. Because CIGA did not raise this issue in a timely manner, we do not consider it. (See Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal. App. 4th 1294, 1308.)

There is no change in the judgment.

Respondent's petition for rehearing is denied.

FN †. Before Ortega, Acting P. J., Vogel (Miriam A.), J., and Mallano, J.