Royal Indemnity v. Baxter International 02:15:2007
Royal Indemnity v
Royal Indemnity v. Baxter International
Filed 1/18/07 Royal Indemnity v. Baxter International CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Musick, Peeler & Garrett, Cheryl A. Orr and David A. Tartaglio for Plaintiff and Appellant.
Shapiro, Rodarte & Freedman, Daniel D. Rodarte, Thomas W. Foote and Carl W. Shapiro for Defendant and Respondent.
Plaintiff Royal Indemnity Company (â€
Description
Plaintiff ("Royal") issued an umbrella insurance policy to North American Vaccine, Inc. ("NAVA")that provided both excess coverage and contingent primary coverage. Defendant Baxter International, Inc. ("Baxter") is successor in interest to NAVA, and has been named as a defendant in pending third-party lawsuits alleging that a vaccine produced by NAVA causes autism and neurological disorders in children. Baxter tendered its defense against these claims to Royal. Royal accepted, subject to a reservation of rights, and later instituted the present action seeking declaratory relief and reformation of its policy. Royal sought a declaration that it had no duty to defend and indemnify Baxter. In the alternative, Royal sought reformation of the policy to reflect the purportedly "true" insuring agreement so as to exclude coverage for the claims.
Royal and Baxter filed cross motions for summary judgment. Royal contended that Endorsement No. 3 of its policy excluded coverage, or should be reformed to do so. Baxter contended that the insuring agreement of the policy provided contingent primary coverage that covered the claims. The trial court granted Baxter"s motion for summary judgment, and denied Royal's.
In this appeal by Royal, court affirm. As to the first cause of action for declaratory relief, court conclude that Baxter made a prima facie showing that the policy issued by Royal provided contingent primary coverage for occurrences of bodily injury resulting from NAVA's products, and that the Thimerosal claims fall within such coverage. Court also conclude that Royal failed to meet its burden of conclusively negating coverage. As to the second cause of action for reformation, court conclude that Royal failed to produce admissible evidence sufficient to raise a triable issue as to whether mutual mistake required reformation of the policy.
