Mt. Hawley Insurance Company v. Associated Industries Insurance Company et al, No. 5:2018cv00576 - Document 27 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER GRANTING SUMMARY ADJUDICATION by Magistrate Judge Karen E. Scott. Mt. Hawley is entitled to summary adjudication as to AIIC's duty to defend Oakview in the Underlying Action. AIIC owed Oakview a duty to defend in the Underlying Action arising at the time of Oakview's tender, January 18, 2017. (See document for further details.) 19 (sbou)
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Mt. Hawley Insurance Company v. Associated Industries Insurance Company et al Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. 5:18-cv-00576-KES MT. HAWLEY INSURANCE COMPANY, Plaintiff, MEMORANDUM OPINION AND ORDER GRANTING SUMMARY ADJUDICATION v. ASSOCIATED INDUSTRIES INSURANCE COMPANY and DOES 1 through 10, inclusive, 17 Defendants. 18 19 I. 20 21 INTRODUCTION In January 2018, Plaintiff Mt. Hawley Insurance Company (“Mt. Hawley”) 22 filed in San Bernardino Superior Court the instant action for equitable contribution, 23 indemnification, and declaratory relief against Associated Industries Insurance 24 Company (“AIIC”). (Dkt. 1 at 1, 6.1) In March 2018, AIIC removed the action to 25 federal court based on diversity jurisdiction. (Id. at 2.) In April 2018, the parties 26 consented to proceed before the assigned Magistrate Judge. (Dkt. 13.) 27 28 1 All page citations are to the CM/ECF pagination. 1 Dockets.Justia.com 1 On June 13, 2018, Mt. Hawley moved for summary adjudication of the issue 2 of duty to defend.2 (Dkt. 19.) Mt. Hawley argues that undisputed facts show AIIC 3 has a duty to defend Mt. Hawley’s insured, Oakview Constructors, Inc. 4 (“Oakview”), in an ongoing personal injury lawsuit. (Id.) In opposition, AIIC 5 argues that “Mt. Hawley is not entitled to any relief because AIIC’s named insured, 6 [Whitehead Construction, Inc. (“Whitehead”)], did not cause the injury which is the 7 subject of the underlying action.” (Dkt. 22 at 7-8.) 8 For the reasons discussed below, Mt. Hawley’s motion is GRANTED. 9 II. 10 SUMMARY OF UNDISPUTED FACTS 11 12 A. The Construction Project. Oakview was the general contractor for a construction project known as the 13 City Yard Expansion (the “Project”) in Rancho Cucamonga, California. (Dkt 19-2, 14 Separate Statement of Undisputed Material Facts [“SSUMF”] 1].) John Field is 15 Oakview’s President and was the Project’s superintendent. (SSUMF 49, 50.) 16 Oakview engaged subcontractors to work at the Project, including Franklin 17 Mechanical Systems, Inc. (“Franklin”), which was generally responsible for 18 heating, ventilation, and air conditioning (“HVAC”), and Whitehead, which was 19 generally responsible for doors. (SSUMF 2, 12.) Per the subcontract describing 20 Whitehead’s scope of work (Dkt. 19-3 at 23-30 [the “Subcontract”]), Whitehead 21 was required to “complete in a good and workmanlike manner all of the 22 Specification Sections 08110 – Hollow Metal Doors and Frames, 08211 – Flush 23 Wood Doors and 08710 – Door Hardware and Installation … and in connection 24 25 26 27 28 AIIC interprets Mt. Hawley’s motion as also asking this Court to decide whether AAIC has a duty to indemnify Oakview. (See Dkt. 22 at 19.) The motion does not encompass that issue. (See also Dkt. 25 at 2 [Mr. Hawley affirms in its reply that the sole issue before the Court is AIIC’s duty to defend, not AIIC’s indemnification obligation]). 2 2 1 therewith … to furnish all supervision, labor, material, equipment, … and any other 2 services or acts in accordance with” Project documents listed in the Subcontract. 3 (Dkt. 19-3 at 23, ¶ 1.) 4 5 The specifications for hollow metal doors and frames contain the following installation requirements: 6 PART 3 – EXECUTION 7 3.1 EXAMINATION 8 9 10 11 A. Examine supporting structure and conditions under which hollow metal is to be installed. Do not proceed with installation until unsatisfactory conditions have been corrected. 3.2 INSTALLATION 12 A. Install hollow metal in accordance with reviewed shop drawings 13 and manufacturer’s printed instructions. Securely fasten and 14 anchor work in place without … unsatisfactory or defacing 15 workmanship. Set hollow metal plumb, level, square to proper 16 elevations, true to line and eye. Set clips and other anchors 17 with Ramset “shot” anchors or drill in anchors as approved. 18 Units and trim shall be fastened tightly together, with neat, 19 uniform and tight joints. 20 B. Placing Frames: Set frames accurately in position, plumbed, 21 aligned, and brace securely until permanent anchors are set. 22 After wall construction is complete, remove temporary braces 23 and spreaders leaving surfaces smooth and undamaged. In 24 masonry construction, building-in of anchors and grouting of 25 frames with mortar is specified in Section 04220 – Concrete 26 Unit Masonry (CMU). At in-place concrete or masonry 27 construction, set frames and secure in-place using counter sunk 28 bolts and expansion shields, with bolt heads neatly filled with 3 1 metallic putty, ground smooths and primed. 2 C. … 3 D. Door Installation: Fit hollow metal doors accurately in their 4 5 6 respective frames, within following clearances …. (Id. at 38-39.) Per a requirement in the Subcontract, Whitehead named Oakview as an 7 additional insured under its policy issued by AIIC. (SSUMF 9-11.) 8 B. The Accident. 9 On September 11, 2014, Greg Turner, an employee of Franklin, was working 10 on a rooftop HVAC unit at the Project. (SSUMF 12.) Per his deposition testimony, 11 after performing his work, Mr. Turner attempted to leave the job site by walking 12 through a rooftop doorway with a metal frame and door; the door was already open. 13 (Dkt. 19-3 at 52 [Turner Depo. 47:1-5].) After walking through the door, he closed 14 it behind him. (Turner Depo. 54:4-55:14.) He had to pull twice before he heard the 15 door latch, because the first time he “didn’t pull hard enough.” (Id. 55:1-3.) He 16 then bent down to pick up his tool bag from the ground. (Id. 55:15-19.) As he was 17 standing up, the metal frame and door came out of the concrete wall and fell on Mr. 18 Turner. (Id. 46:4-18, 47:12-14, 54:1-3; see also SSUMF 13-16; Dkt. 24 19 [photograph depicting door and frame that fell].) 20 Mr. Turner testified that he had previously operated that door while working 21 at the Project, and when he did so “it seemed to be loose.” (Turner Depo. 49:22- 22 50:2.) When asked to clarify what aspect(s) of the door seemed loose, Mr. Turner 23 testified, “inside the wall, it appeared to be loose.”3 (Id. 50:4-5.) He also testified, 24 25 26 27 28 Mt. Hawley argues that Mr. Turner testified that the door, not the frame, was loose. (SSUMF 18.) In fact, Mr. Turner testified that the door seemed loose “inside the wall” and “inside the fixture.” (Dkt. 19-3 at 61-62 [Turner Depo. 50:4-5; 51:35].) When counsel asked if the “fixture” meant the frame, Mr. Turner said he meant “the concrete.” (Id. 51:4-7.) He testified that the “door to the frame” felt “solid.” (Id. 50:16-17.) Thus, Mr. Turner’s testimony is that the frame seemed loose in the 4 3 1 “As far as the door to the frame, it felt … solid …” and “It just had a slight 2 wobble… when you closed it ….” (Id. 50:16-17, 21-23.) He further testified as 3 follows: 4 Q. [Y]ou held your right hand up and you went from side to side … 5 what does that indicate to you? 6 A. It indicates that the door was loose inside the fixture, I guess. 7 Q. The frame? 8 A. The concrete. … It wasn’t anchored after the door … fell on me, I 9 examined the doorway and there was no fasteners to fasten the 10 door to the concrete wall. 11 (Id. 50:25-51:11.) He continued, “the door made a noise of it … having play, is the 12 best way I can describe it.” (Id. 52:19-21.) 13 Oakview poured the Project’s concrete walls. (Dkt. 22-5 at 3.) The parties 14 agree that the metal door frame was supposed to be placed into the wall panel with 15 concrete poured around it; then the concrete would dry and the concrete wall with 16 the embedded door frame could be tilted up into place with a crane. (SSUMF 41.) 17 The parties further agree that this did not happen; the frame was not embedded into 18 the concrete wall when it was poured. (SSUMF 42.) This meant that the frame 19 needed to be securely affixed to the concrete wall after the concrete was set. (Id.) 20 The frame, however, was not securely affixed to the concrete wall. (SSUMF 17, 21 40.) 22 23 Whitehead installed the metal door within its metal frame.4 (Dkt. 19-6 at 72, 76 [Whitehead Depo. 55:13-21; 68:21-23]; Dkt. 19-6 at 81.) The parties dispute, 24 25 wall, not that the door seemed loose in the frame. 26 The parties appear to assume that Whitehead installed the metal door after the frame was installed in the concrete. The Court therefore treats this fact as undisputed. 27 28 4 5 1 however, who put the metal frame into the concrete doorway. There is no direct 2 evidence identifying who installed the frame.5 Whitehead denies installing the 3 frame. (Dkt. 19-6 at 83.) Per Mr. Whitehead, installation of metal frames in 4 concrete walls was not within Whitehead’s scope of work; such work is typically 5 done by the concrete contractor. (Dkt. 22-7 [Whitehead Depo. 16:1-3; 17:22- 6 18:2].) 7 C. Mr. Turner’s Personal Injury Lawsuit. 8 In September 2016, Mr. Turner filed a personal injury lawsuit against 9 Oakview and Does 1-50, Oakview’s agents (the “Underlying Action”). (SSUMF 10 20; Dkt. 19-3 at 72 [“Turner Compl.”].) Mr. Turner alleged that all the defendants 11 were responsible for the “construction, control, maintenance, repair, and inspection 12 of doors” at the Project. (Turner Compl. ¶ 6.) Mr. Turner further alleged that all 13 the defendants negligently “caused and created” an unsafe condition to exist at the 14 Project: an unsecured metal door. (Id. ¶¶ 67, 10.) Mr. Turner alleged that the 15 unsafe condition caused him to “fall violently to the floor after the metal door 16 became separated from the wall” and struck him. (Id. ¶ 11.) Due to these events, 17 he suffered bodily injury. (Id.) 18 19 20 21 22 23 24 25 26 27 28 By direct evidence, the Court means that there is no testimony from any Project worker saying that he installed the frame or saw who installed the frame; there are no Project notes or logs memorializing who installed the frame or when; there is no evidence describing how the frame and door got from the ground to the roof. AIIC contends that Oakview installed the frame, citing as supporting evidence Oakview’s responses to interrogatories and Mr. Field’s deposition. (Dkt. 22-1 at 25.) Mr. Field testified that after the accident, he told an Oakview employee, “I don’t care whose obligation it is, get it fixed.” (Dkt. 22-13 at 4 [Field Depo. 52:17-53:13].) This testimony has no tendency to show that Oakview placed the frame in the threshold before the accident. Oakview’s interrogatory responses identify Oakview as the contractor that fabricated and erected the concrete walls. (Dkt. 22-5 at 3.) While this shows that Oakview controlled what was embedded in the concrete walls, it has no tendency to show that after fabricating and erecting the concrete wall without metal door frames, Oakview later placed the frame in the threshold. 5 6 1 In January 2017, Oakview filed a cross-complaint against Whitehead and 2 Franklin for equitable indemnity, express indemnity, contribution, apportionment, 3 and declaratory relief. (SSUMF 21; Dkt. 19-4 at 31 [cross-complaint].) 4 Mt. Hawley is defending Oakview in the Underlying Action, while AIIC is 5 defending Whitehead. (SSUMF 22-24.) The AIIC-Whitehead policy contains 6 coverage provisions for personal injury claims. (Dkt. 19-5 at 50.) The provisions 7 include the “duty to defend the insured against any ‘suit’ seeking damages” for 8 bodily injury. (Id.) AIIC owes Oakview this same duty to defend if the terms of 9 the additional insured endorsement are satisfied, i.e., if an act or omission by 10 Whitehead caused the injury, in whole or in part. (Dkt. 19-3 at 41; see also SSUMF 11 27-28.) 12 D. Oakview’s Tender. 13 In a letter dated January 18, 2017, Oakview tendered its claim to AIIC for 14 defense in the Underlying Action. (SSUMF 29; Dkt. 19-6 at 15 [tender letter].) On 15 February 2, 2017, an AIIC claims adjustor wrote back acknowledging receipt of the 16 claim and an ongoing investigation. (SSUMF 30; Dkt. 19-6 at 19 [response letter].) 17 The adjustor told Oakview that AIIC “can neither accept nor deny your request for 18 tender at this time.” (Id.) 19 On May 3, 2018, AIIC sent Mt. Hawley a letter indicating that it would 20 “address Mt. Hawley’s tender” upon reviewing yet-to-be-received discovery in the 21 Underlying Action and concluding its investigation. (Dkt. 19-6 at 22.) 22 E. The Instant Lawsuit. 23 Mt. Hawley filed the instant lawsuit in January 2018. (Dkt. 1 at 1.) After 24 removal, AIIC answered. (Dkt. 3.) As affirmative defenses, AIIC alleged that 25 there is no evidence that Mr. Turner’s accident was caused by acts or omissions of 26 Whitehead. (Dkt. 3 at 5.) 27 /// 28 /// 7 1 III. 2 LEGAL STANDARDS 3 4 A. Summary Adjudication Generally. Under Rule 56 of the Federal Rules of Civil Procedure, a party may move for 5 summary judgment as to a “part of each claim or defense.” Fed. R. Civ. Proc. 6 56(a); see Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378 (C.D. Cal. 1995) 7 (“Rule 56 of the Federal Rules of Civil Procedure allow[s] a court to grant 8 summary adjudication on part of a claim or defense.”). 9 A motion for partial summary judgment or summary adjudication is resolved 10 under the same standard for summary judgment. California v. Campbell, 138 F.3d 11 772, 780 (9th Cir. 1998). Summary judgment shall be granted when a movant 12 “shows that there is no genuine issue as to any material fact and that the movant is 13 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As to materiality, 14 “[o]nly disputes over facts that might affect the outcome of the suit under the 15 governing law will properly preclude the entry of summary judgment.” Anderson 16 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 17 “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for 18 the nonmoving party. Id. In examining the evidence at the summary judgment 19 stage, the court does not make credibility determinations or weigh conflicting 20 evidence; the court views all evidence and draws all inferences in the light most 21 favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith 22 Radio Corp., 475 U.S. 574, 587 (1986). 23 The moving party bears the initial burden of demonstrating the basis for the 24 motion and identifying the portions of the pleadings, depositions, answers to 25 interrogatories, affidavits, and admissions on file that establish the absence of a 26 triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If 27 the moving party meets this initial burden, the burden then shifts to the non-moving 28 party to present specific facts showing that there is a genuine issue for trial. Id. at 8 1 324. 2 B. An Insurer’s Duty to Defend. 3 California law (which applies in this diversity action) requires an insurer to 4 defend any suit “which potentially seeks damages within the coverage of the 5 policy.” Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 275 (1966); see also Harbison v. 6 Am. Motorists Ins. Co., 244 F. App’x 123, 124 (9th Cir. 2007) (applying California 7 law in diversity action disputing duty to defend). As explained by the California 8 Court of Appeal: 9 There is no better place to understand the potentiality rule than 10 the nearly half-century-old fountainhead case that gave us the rule: 11 Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263. There, a 12 policyholder was sued for assault and battery — classic intentional 13 torts not covered by insurance policies — after an altercation arising 14 out of an auto accident. The policyholder claimed, however, that he 15 acted in self-defense. The insurance company denied a defense of the 16 lawsuit, reasoning that liability for intentional torts was not covered 17 by the policy. But — insurance law’s most cited opinion ever went on 18 to explain — there was a potential that the policyholder might be 19 found liable not for assault and battery, but merely for the negligent 20 use of unreasonable force in the altercation. That potential liability 21 thus created the possibility of a judgment for a negligent tort, not an 22 intentional one, and if the judgment came down that way, the 23 insurance company would have to pay for it. And because the 24 insurance company might have to pay for such a judgment, it 25 definitely had an obligation to defend. 26 27 28 Griffin Dewatering Corp. v. N. Ins. Co. of N.Y., 176 Cal. App. 4th 172, 197 (2009). The potential for coverage under the insuring agreement is determined by facts alleged in the tendered complaint or extrinsic facts known to the insurer. 9 1 Scottsdale Ins. Co. v. MV Transportation, 36 Cal. 4th 643, 654 (2005). “The 2 defense duty arises upon tender of a potentially covered claim and lasts until the 3 underlying lawsuit is concluded, or until it has been shown that there is no potential 4 for coverage.” Id. at 655. “If any facts stated or fairly inferable in the complaint, or 5 otherwise known or discovered by the insurer, suggest a claim potentially covered 6 by the policy, the insurer’s duty to defend arises and is not extinguished until the 7 insurer negates all facts suggesting potential coverage. On the other hand, if, as a 8 matter of law, neither the complaint nor the known extrinsic facts indicate any basis 9 for potential coverage, the duty to defend does not arise in the first instance.” Id. 10 “Any doubt as to whether the facts establish the existence of the defense duty must 11 be resolved in the insured’s favor.” Montrose Chem. Corp. v. Superior Court, 6 12 Cal. 4th 287, 299-300 (1993). 13 C. Summary Adjudication in the Duty-to-Defend Context. 14 In the insurance context, summary adjudication can often resolve whether the 15 insurer must defend. See Transamerica Ins. Co. v. Super. Ct., 29 Cal. App. 4th 16 1705, 1712-13 (1995). Where, as here, the insured is the moving party, he or she 17 has the initial burden of establishing a potential for coverage. See Montrose, 6 Cal. 18 4th at 300. Once the insured makes the prima facie showing, the insurer faces the 19 same burden it would encounter if it were the moving party—to prove that 20 undisputed facts show there is no possibility of coverage. See id. “In other words, 21 the insured need only show that the underlying claim may fall within policy 22 coverage; the insurer must prove it cannot.” Vann v. Travelers Companies, 39 Cal. 23 App. 4th 1610, 1614 (1995). 24 IV. 25 DISCUSSION 26 AIIC insured Oakview as an additional insured with respect to bodily injury 27 “caused, in whole or in part, by [Whitehead’s] acts or omissions.” (Dkt. 19-3 at 28 44.) Mt. Hawley points to four potential ways that acts or omissions by Whitehead 10 1 caused Mr. Turner’s injury and trigged AIIC’s duty to defend Oakview: 2 (1) Whitehead’s delivering the metal frames late to the Project, (2) Whitehead’s 3 failing to examine the frame before installing the door, in breach of Specifications 4 § 3.1, (3) Whitehead’s installing the door negligently (i.e., in a noticeably loose 5 frame), and (4) Whitehead’s installing the frame in the concrete wall negligently 6 (i.e., without properly affixing it to the wall). 7 As to each, AIIC argues that undisputed facts show either (1) Whitehead did 8 not perform the act (or had no legal duty to perform the omitted act), and/or (2) the 9 act or omission did not cause Mr. Turner’s injuries. 10 11 A. Late Frame Delivery. Witnesses disagree as to why the hollow metal door frame was not embedded 12 in the wall when the concrete was poured. Per Mr. Field’s testimony, Whitehead 13 delivered the metal frames and doors to the Project too late for Oakview to embed 14 them. (Dkt. 19-4 at 92 [Field Depo. 21:7-22:12; 28:10-16; 48:19-25].) He recalled 15 talking to Mr. Whitehead or Whitehead’s project manager, Mr. Hudgens, about the 16 door frames not being available when it was time to pour the concrete. (Id. 23:6- 17 13.) Per Mt. Hawley, due to the late delivery, “the frame in question could not be 18 properly embedded into the concrete, which consequently required the frame to be 19 affixed to the concrete after it was poured and set. Stemming from this breach, the 20 frame was improperly fixed to the concrete wall and the door installed into this 21 frame allegedly fell on Mr. Turner.” (Dkt. 19-1 at 23.) 22 In contrast, Mr. Whitehead testified that his company delivered the metal 23 frames and doors to the Project early. He testified that when his company picks up 24 frames and doors from a manufacturer, it typically delivers them “straight to the job 25 site” because Whitehead has no place to store them. (Dkt. 19-6 at 57 [Whitehead 26 Depo. 28:24-29:2].) He remembered Mr. Field calling to tell him that the frames 27 28 11 1 had “sat so long” at the Project that “foam blocking6 on the back of the hardware 2 locations” had fallen out, and Whitehead needed to secure the foam in place with 3 duct tape before the frames went into walls. (Id. 29:10-18.) He estimated that the 4 frames were at the Project “a couple of months” before that call.7 (Id. 29:20.) 5 Whitehead duct taped the foam blocks back to the frames, but there is no evidence 6 establishing when that occurred relative to the pouring of the concrete walls. (Id. 7 30:1-7.) 8 Mt. Hawley, as the moving party, had the initial burden of establishing a 9 potential for coverage based on undisputed material facts. Here, the material fact of 10 whether there was, in fact, a late delivery is disputed. Thus, the Court cannot grant 11 Mt. Hawley summary adjudication as to this theory.8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When a concrete wall is poured around a metal door frame, the foam blocks prevent concrete from filling spaces where screws or other hardware will eventually go. (Dkt. 19-6 at 59 [Whitehead Depo. 30:1-7].) 6 AIIC argues that there is no factual dispute over the timing of Whitehead’s delivery of the frames. (Dkt. 22-1 at 21.) According to AIIC, Mr. Field lied or misremembered at his deposition, and his testimony must be disregarded as “inaccurate” where it conflicts with Mr. Whitehead’s, leaving Mr. Whitehead’s testimony undisputed. (Dkt. 22 at 18.) The Court rejects this argument. See Matsushita, 475 U.S. at 587 (at summary judgment stage, court does not make credibility determinations). 7 The Court notes that if Mt. Hawley had made such a prima facie showing, AIIC would not have met its burden of showing no possibility of coverage. AIIC argues that Mt. Hawley’s causation argument is too speculative, because even if the frame was delivered too late to be embedded in the concrete wall, it could have been securely affixed to the wall after the concrete was set. In support of this argument, AIIC cites Advent, Inc. v. National Union Fire Ins. Co., 6 Cal. App. 5th 443 (2016), a dispute over an insurer’s duty to defend under identical additional insured endorsement language. (Dkt. 22 at 13.) In that case, however, there was no evidence presented of a possible causal link; an employee had been instructed to perform a task and apparently deviated from that task without any instruction to do so. Advent is less on-point than another recent case, Liberty Surplus Ins. Corp. v. Ledesma & Meyer Constr. Co., 5 Cal. 5th 216 (2018). In Liberty Surplus, a 13-year-old student at a school construction project site alleged that a worker sexually abused her; she 12 8 1 2 B. Examination of Door Installation Conditions. Undisputedly, Whitehead installed the door within its frame. (Dkt. 19-6 at 3 72, 76 [Whitehead Depo. 55:13-21; 68:21-23]; Dkt. 19-6 at 81.) Under § 3.1 of the 4 Specifications, Whitehead was obligated to “examine supporting structure[s] and 5 conditions under which hollow metal is to be installed.” (Dkt. 19-3 at 38-39.) 6 Whitehead was further instructed: “Do not proceed with installation until 7 unsatisfactory conditions have been corrected.” Id. 8 9 AIIC argues that Whitehead had no legal duty to examine the frame if it was installed by another contractor. (See Dkt. 22 at 12-13.) The language of 10 Specifications § 3.1 required Whitehead to “examine supporting structure and 11 conditions under which hollow metal is to be installed.” (Dkt. 19-3 at 38.) Nothing 12 limited this duty to structures installed by Whitehead or conditions caused by 13 Whitehead. The evident purpose of Specifications § 3.1 is to assign to the door- 14 installation contractor the responsibility to examine all site conditions that would 15 determine whether doors may be safely installed. 16 Mt. Hawley has presented evidence that Whitehead failed to perform this 17 obligation. Mr. Whitehead testified, “I don’t recall inspecting that door. I don’t 18 recall inspecting any of them at that time. It was so long ago.” (Dkt. 19-6 at 70 19 20 21 22 23 24 25 26 27 28 sued the worker’s employer. The California Supreme Court ruled that the employer’s insurer had a duty to defend the employer, because “a finder of fact could conclude that the causal connection between [the employer’s] alleged negligence and the injury inflicted by [the worker] was close enough to justify the imposition of liability on [the employer].” Id. at 225. The California Supreme Court rejected the insurer’s argument that the employer’s alleged negligence was “too attenuated” from the injury-producing event. Id. While the logical chain of causation between Whitehead’s late delivery of the frames and Mr. Turner’s injuries is somewhat attenuated, it exists (unlike in Advent). Even if other Project workers could or should have secured the unaffixed door frame, that does not sever the causal chain – just as in Liberty Surplus, where there remained a potential causal connection between the employer’s negligence and the sexual abuse, even though others, like school personnel, could or should have prevented the sexual abuse. 13 1 [Whitehead Depo. 53:16-18].) Mt. Hawley argues that this omission potentially 2 caused Mr. Turner’s injury. “Had Whitehead inspected the frame, it would have 3 concluded that the frame was not fixed to the wall.” (Dkt. 19-1 at 22.) 4 In response, AIIC argues that the Court cannot consider this argument, 5 because the “theory” that Whitehead failed to examine the frame and seek 6 corrective action before installing the door “has not been plead [sic] by either 7 Turner nor Oakview [sic].” (Dkt. 22 at 14.) In fact, Mr. Turner alleges that 8 defendants were responsible for the “inspection of doors” at the Project and that 9 defendants’ negligence in discharging their responsibilities led to the unsafe 10 11 condition of the unsecured door. (Turner Compl. ¶¶ 6-7, 10.) Mt. Hawley has therefore established a potential for coverage, shifting to 12 AIIC the burden of proving that there is no possibility of coverage. AIIC argues 13 that even if Whitehead failed to examine the frame, that omission could not have 14 caused the accident, because an examination could not have revealed that the frame 15 was not securely attached to the concrete wall. (Dkt. 22 at 16.) In support, AIIC 16 cites Mr. Whitehead deposition testimony, as follows: 17 A. Because you can’t see the concrete inside the frame. The only 18 thing that would have been obvious would have been if the frame 19 had been loose. But looking at the pictures there’s no concrete in 20 the jamb, obviously, so it didn’t get poured in properly. There’s 21 also no anchors anywhere. It appears that it was just caulking 22 around the frame, which also can be deceiving because caulking 23 can hold a frame really tight. People are – I think would be 24 surprised how strong caulking is. 25 Q. Okay. 26 A. We didn’t do the caulking. We didn’t do the painting. That was 27 28 all done by somebody else. Q. Okay. 14 1 A. So had the painter caulked it, my guys would not have known that 2 it wasn’t installed because it would have been locked in place. 3 (Dkt. 22-7 at 21-22 [Whitehead Depo. 70:12-71:9].) Mr. Whitehead testified that 4 he could tell from the picture of the door in question that it had been caulked prior 5 to falling on Mr. Turner. (See id. at 22 [Whitehead Depo. 71:12-16].) 6 AIIC has not established with extrinsic facts that there is no possibility of 7 coverage. There is no evidence before the Court establishing when the frame was 8 caulked or whether the frame was caulked before Whitehead installed the door. Mr. 9 Turner testified that the frame felt loose within the wall when he operated the door. 10 His complaint seeks damages related to negligence in inspecting the condition of 11 the doors. Thus, facts stated in or fairly inferable from the complaint suggest a 12 claim potentially covered by the policy. 13 C. Door and Frame Installation. 14 The Court need not reach the issue of whether Mt. Hawley has met its 15 summary adjudication burden with respect to the door and frame installation. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 15 1 V. 2 CONCLUSION 3 Mt. Hawley has established through undisputed evidence that there is a 4 potential for coverage in the Underlying Action, i.e., a potential that acts/omissions 5 by Whitehead caused, in part, Turner’s injuries. As a matter of law, this potential 6 for coverage gives rise to a duty for AIIC to defend Oakview under the additional 7 insured endorsement. Thus, Mt. Hawley is entitled to summary adjudication as to 8 AIIC’s duty to defend Oakview in the Underlying Action. AIIC owed Oakview a 9 duty to defend in the Underlying Action arising at the time of Oakview’s tender, 10 January 18, 2017. 11 12 13 14 15 DATED: October 01, 2018 ____________________________________ KAREN E. SCOTT United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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