Crusader Ins. Co. v. Certain Underwiters at Lloyds, London
Filed 7/18/06 Crusader Ins. Co. v. Certain Underwiters at Lloyds, London CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
| CRUSADER INSURANCE CO., et al., Plaintiffs and Appellants, v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, POLICY NO. L85259, Defendant and Respondent. | B186406 (Los Angeles County Super. Ct. No. BC316966) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald M. Sohigian, Judge. Affirmed.
Snyder ♦ Dorenfeld, David K. Dorenfeld and Michael W. Brown for Plaintiffs and Appellants.
Soltman, Levitt & Flaherty and John S. Levitt for Defendant and Respondent.
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In this action appellant Crusader Insurance Company sought equitable contribution from respondent Certain Underwriters at Lloyd's London, Policy No. L85259 (Underwriters or the Underwriters) for the costs Crusader incurred defending their mutual insured in a construction defects action brought by appellant homeowners, Edward and Sally McSweeney. The McSweeneys, for their part, sought to enforce a stipulated judgment entered against the insured in the underlying action. The trial court found two separate and independent grounds for finding Underwriters did not have a duty to defend or indemnify: (1) the insured had failed to tender the underlying claim to the Underwriters and (2) the McSweeneys discovered the damage after the Underwriters' policy expired on November 1, 2001 and the policy expressly excluded claims for property damage discovered either before or after the policy's coverage period. The trial court found no triable issues of material fact and entered a summary judgment in favor of the Underwriters. We affirm.
FACTS AND PROCEEDINGS BELOW
In 1998 appellants Edward and Sally McSweeney hired Charles Elledge to install hardwood floors in their home and perform other projects.
In November 2001 the McSweeneys hired a different flooring contractor to install hardwood floors in other portions of their residence. The new contractor requested an independent examination by an independent contractor of the existing hardwood flooring before he would agree to begin construction. On November 12, 2001 the independent contractor, DG Flooring, inspected the hardwood flooring earlier installed by Charles Elledge. DG Flooring discovered some raised hardwood panels. The contractor lifted the raised panels and underneath discovered what turned out to be toxic mold.
DG Flooring issued a report on November 19, 2001. Among other problems with Elledge's hardwood flooring installation, the independent contractor found the vinyl moisture barrier Elledge had installed over the concrete substrate had been defective and/or inappropriate for this purpose. Moreover, the nails Elledge had used to attach the overlaying plywood and vinyl to the concrete surface below were insufficient. Instead of securing all this material to and into the concrete the nails barely penetrated the surface. This had the effect of chipping the face of the concrete and damaging the masonry.
The flooring contractor reviewed these findings with the McSweeneys Thanksgiving week of 2001.
The McSweeneys made a written claim against Elledge on December 19, 2001. Elledge advised Paul Hetherman, a claims examiner for appellant Crusader Insurance Company (Crusader), of the McSweeneys's claim the next day on December 20, 2001. Crusader retained the law firm of Driscoll & Reynolds on December 26, 2001 to represent Elledge and to assist Crusader in investigating the McSweeneys's claim.
The McSweeneys filed an action against Elledge in November 2002.
On May 20, 2003 Driscoll & Reynolds sent a letter addressed to â€
