Roger H. Proulx & Co. v. Crest-Liners, Inc. (2002)

ROGER H. PROULX & COMPANY, Plaintiff and Appellant, v. CREST-LINERS, INC. et al., Defendants and Respondents.

[Modification fn. * of opinion ( 98 Cal.App.4th 182) on denial of petition for rehearing.]

THE COURT.- fn. †

It is ordered that the opinion filed herein on April 30, 2002, be modified as follows:

1. A footnote is added to the end of the third sentence of the first full paragraph on page 15 [98 Cal. App. 4th 199, advance report, line 1] to read as follows: "Our holding that J&H, an insurance broker, cannot assert a "no suit" defense under these circumstances should not be read to mean that an insurer cannot assert that defense in all situations in which it denies coverage. It may be found that the insurer does waive the defense when it wrongfully denies coverage or wrongfully repudiates the policy. (See, e.g., Grant v. Sun Indemnity Co. (1938) 11 Cal. 2d 438, 440 ["It is a well-recognized rule . . . that the insurer may not repudiate the policy, deny all liability, and at the same time be permitted to stand on a provision inserted in the policy for its benefit"].)"

2. Text is added to the end of the first full paragraph on page 15 [98 Cal. App. 4th 199, advance report, line 5] to read as follows: "J&H also argues that, because Turner did not file a lawsuit, Proulx can only speculate regarding what claims Turner might have alleged, and therefore Proulx cannot show that the National Union policy would have covered its damages. As discussed above, Proulx was not required to force Turner to file a lawsuit in order to recover for J&H's alleged negligence. Proulx submitted sufficient evidence from which a trier of fact may determine the type and scope of damages Turner sought to (and apparently did) recover from Proulx. The trier of fact could reasonably conclude that Turner would have alleged those damages had it been forced to file a lawsuit against Proulx. At trial, Proulx may seek to recover from J&H those damages that would have been covered under the National Union policy. (See Clemente v. State of California [98 Cal. App. 4th 933c] (1985) 40 Cal. 3d 202, 219 [holding that plaintiff is entitled to recover damages despite inability to prove damages with certainty when that inability is due to defendant's actions].)"

Respondent, J & H Marsh & McLennan of Utah, Inc.'s petition for rehearing is denied.

FN *. This modification requires the movement of text affecting pages 199-204 of the bound volume report.

FN †. Before Mosk, J., Turner, P. J., and Armstrong, J.