CALIFORNIA v. ALLSTATE INSURANCE COMPANY








Filed 3/9/09





IN THE SUPREME COURT OF CALIFORNIA



STATE OF CALIFORNIA, )
)
Plaintiff and Appellant, ) S149988
)
v. ) Ct.App. 4/2 E037627
)
ALLSTATE INSURANCE COMPANY )
et al., ) Riverside County
) Super. Ct. No. RIC381555
Defendants and Respondents. )
__________________________________ )
)
STATE OF CALIFORNIA, )
)
Plaintiff, )
)
v. ) Riverside County
) Super. Ct. No. CIV239784
UNDERWRITERS AT LLOYD’S )
LONDON et al., )
)
Defendants. )
__________________________________ )



STORY CONTINUE FROM PART I….


After the extraordinary rainfalls of 1969, which statistically would be expected to occur no more than once every 50 years, the State took measures to prevent future flooding: it improved the runoff diversion system and removed a large amount of waste from the ponds. The facility was reopened only after the county flood control agency reviewed the drainage system and found it sufficient. When new flooding hit in January and February of 1978 — due to rainfall so intense as to provoke a government declaration of emergency and designation of the county as a disaster area — the State attempted to alleviate the flooding emergency by topping the dam with sandbags and digging new storage ponds into which waste could be pumped. The State official in charge hoped the rain would abate and these measures would be sufficient. But the rain continued, a pump broke, and the dam began to crack. The State’s preventive measures had proved inadequate.
These facts do not demonstrate the State expected rains so heavy they would overwhelm the improved drainage, defeat emergency measures, and threaten the dam; they show only that the State was aware of a flooding risk and took what proved to be inadequate measures against it. Being aware of a risk of a particular event is not equivalent to knowing or believing the event is highly likely to occur.
The Court of Appeal considered the risk of flooding, after 1969, so great as to compel a finding the State expected it: “Here, though there was a theoretical chance that after 1969 it would never again rain heavily enough to cause any discharge, if that were enough to make a discharge ‘accidental,’ the term would cease to have any practical meaning.” To be sure, the evidence in a given case might show the insured was aware of a risk so great that no reasonable person could find the insured did not expect the event. But the evidence here did not establish that level of probability. The special master found only that the State was aware in 1973 of a “danger” of overflow, and the undisputed fact as framed in the Insurers’ statement was only that Franks, the State’s geologist, recognized a “potential for overflow during a heavy storm.” The State took measures to prevent and control flooding; the rains that led to both the 1969 and 1978 discharges were no everyday events, but extraordinary, unpredictable phenomena; and the ultimate release was caused partly by mechanical failure of a pump and partly by structural failure of the site dam. On this evidence, a trier of fact could reasonably find the State did not expect this set of events.
The State failed to take a measure — covering the site with an impermeable cap — that was suggested to it and that would have prevented the release. Even assuming this failure was unreasonable, however, the State’s omission demonstrates only negligence, against which the policy insured. As the State argues: “Many accidents occur when a policyholder negligently delays taking steps to eliminate a remote risk of harm, such as when an auto driver negligently delays replacing his tires, resulting in an auto accident, or a homeowner puts off cutting down an aging tree which he knows could be blown over and cause damage in an extraordinarily . . . heavy windstorm . . . .” Evidence the State should have known flooding was likely, and should have taken additional measures against it, is insufficient to prove, as an undisputed fact, that a waste discharge due to flooding was expected and therefore nonaccidental. (Shell Oil Co., supra, 12 Cal.App.4th at p. 746.)

IV. Whether the State Must Prove the Amount of Property Damage Caused by “Sudden and Accidental” Discharges

During discovery, the State admitted it could not differentiate the property damage caused by the 1969 and 1978 releases from that caused by the gradual leakage of wastes from the ponds.^[1] The State also admitted it could not differentiate the “work performed to date” to remedy the property damage caused by the various sets of releases. In light of these admissions, the trial court ruled, the State could recover nothing because it could not prove how much of the property damage was caused by sudden and accidental releases. Insurers, relying on Golden Eagle Refinery Co. v. Associated Internat. Ins. Co. (2001) 85 Cal.App.4th 1300 (Golden Eagle), argue the same position here. The State, in contrast, contends it is entitled to indemnity for all the damages it was held liable for in the underlying federal court action. The Court of Appeal agreed, finding Golden Eagle inconsistent with this court’s decision in State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d 94 (Partridge).
We agree with the State and the Court of Appeal, at least as to the result on summary judgment. To the extent the State can show “sudden and accidental” releases proximately caused the damage for which it was held liable, it is contractually entitled to indemnity for that liability. The summary judgment record reflects at least a triable issue of fact as to whether the 1969 and 1978 discharges were substantial factors in causing contamination of soils and groundwater downgradient from the Stringfellow site — the property damage for which the State was held liable. The record also reflects a triable issue as to whether that property damage, or the cost of repairing it, can be quantitatively divided among the various causes of contamination. As we will explain, although Partridge arose on very different facts, our conclusion in that case that liability coverage exists “whenever an insured risk constitutes a proximate cause of an accident, even if an excluded risk is a concurrent proximate cause” (Partridge, supra, 10 Cal.3d at p. 105, fn. 11) applies equally in the present circumstances.
As relevant, the coverage clause of each Insurer’s policy obligated the company to “pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of liability imposed by law . . . for damages, including consequential damages, because of direct damage to or destruction of tangible property . . . which results in an Occurrence during the policy period.” The policies defined an “Occurrence” as “an accident, event or happening including continuous or repeated exposure to conditions which results, during the policy period, in . . . Property Damage neither expected nor intended from the standpoint of the Insured.”^[2] As previously explained, however, each policy then excluded “Property Damage arising out of” pollution to land or air, unless the discharge of pollutants was sudden and accidental.
In sum, under the policies at issue, liability for property damage caused by an accident was covered, while that caused by gradual or nonaccidental release of pollutants was excluded. What, then, of property damage caused by a set of pollutant discharges, some sudden and accidental, and some gradual or nonaccidental‌
We faced an analogous question in Partridge. There, the policyholder negligently filed the trigger mechanism of his pistol to lighten the trigger pull. Later, as he and two friends drove through the countryside shooting jackrabbits, the insured’s truck hit a bump and the gun fired, wounding one of the passengers. (Partridge, supra, 10 Cal.3d at pp. 97-98.) Before us on appeal was the question whether the insured’s homeowner’s policy, which generally covered his personal liability for negligence but excluded injuries arising out of the use of a motor vehicle, afforded coverage for liability for the passenger’s injury. (Id. at pp. 98-99.)
We framed and answered the coverage question as follows: “[T]he crucial question presented is whether a liability insurance policy provides coverage for an accident caused jointly by an insured risk (the negligent filing of the trigger mechanism) and by an excluded risk (the negligent driving). Defendants correctly contend that when two such risks constitute concurrent proximate causes of an accident, the insurer is liable so long as one of the causes is covered by the policy.” (Partridge, supra, 10 Cal.3d at p. 102.) We reasoned that the insured’s negligent filing of the trigger subjected him to liability for the injury regardless of whether use of a vehicle was involved. The insured would have been liable and covered for his liability, that is, “if the gun had accidentally fired while the insured was walking down the street or running through the woods” (id. at p. 103), and in this sense “the insured’s negligent modification of the gun suffices, in itself, to render him fully liable for the resulting injuries” (ibid.). Damages for the passenger’s injury were therefore covered as “ ‘sums which the Insured . . . [became] legally obligated to pay’ ” because of his nonautomobile related negligence. (Ibid.)
To further explain our conclusion in Partridge, we hypothesized a case in which the covered and excluded causes were attributable to different actors: “If, after negligently modifying the gun, Partridge had lent it to a friend who had then driven his own insured car negligently, resulting in the firing of the gun and injuring of a passenger, both Partridge and his friend under traditional joint tortfeasor principles would be liable for the injury. In such circumstances, Partridge’s personal liability would surely be covered by his homeowner’s policy, and his friend’s liability would be covered by automobile insurance.” (Partridge, supra, 10 Cal.3d at p. 103.) The insurer’s contractual obligation, we further reasoned, was not lessened by the coincidence that Partridge was responsible for both of the causes contributing to the injury. (Ibid.)
Partridge addressed the problem of multiple causes by looking to the rules governing the insured’s underlying liability. This follows from the nature of third party liability insurance, as we later explained in Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 407: “[T]he right to coverage in the third party liability insurance context draws on traditional tort concepts of fault, proximate cause and duty. This liability analysis differs substantially from the coverage analysis in the [first party] property insurance context, which draws on the relationship between perils that are either covered or excluded in the contract. In liability insurance, by insuring for personal liability, and agreeing to cover the insured for his own negligence, the insurer agrees to cover the insured for a broader spectrum of risks.” (Accord, Montrose Chemical Corp. v. Admiral Ins. Co., supra, 10 Cal.4th at p. 664.) While coverage under both first and third party insurance is a matter of contract, the contractual scope of third party liability insurance coverage, as reflected in the policy language, depends on the tort law source of the insured’s liability.
Under Partridge, then, we look to whether a covered act or event subjected the insured to liability for the disputed property damage or injury under the law of torts. We ask, in the standard insuring language used here, whether the disputed amounts are “sums which the Insured . . . [became] obligated to pay . . . for damages . . . because of” property damage that is not excluded under the policy. (See Partridge, supra, 10 Cal.3d at p. 99, fn. 5 [substantially the same language].) If the insured’s nonexcluded negligence “suffices, in itself, to render him fully liable for the resulting injuries” or property damage (id. at p. 103), the insurer is obligated to indemnify the policyholder even if other, excluded causes contributed to the injury or property damage.
Applying the Partridge approach here leads to the conclusion summary judgment was not appropriate for Insurers on this ground. The 1969 and 1978 releases would have rendered the State fully liable for the contamination of soils and groundwater below the Stringfellow site, without consideration of the subsurface leakage, if they were substantial factors in causing the contamination. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1048-1054; see also Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 194 [insured must show an “appreciable amount” of the damage for which it was held liable resulted from accidental discharges]; Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1460 [same].) The summary judgment record demonstrates, at the least, a triable issue on this point.^[3] That subsurface leakage from the site, an excluded cause of property damage, also contributed to the contamination is insufficient to defeat coverage under Partridge’s holding that liability coverage exists “whenever an insured risk constitutes a proximate cause of an accident, even if an excluded risk is a concurrent proximate cause.” (Partridge, supra, 10 Cal.3d at p. 105, fn. 11.)
As in Partridge, our reasoning can be elucidated with a hypothetical in which responsibility for the covered and excluded causes of damage is divided. Suppose the State had shared design and management of the Stringfellow site with a private operator, with the State taking responsibility for design and maintenance of flood control systems and the private operator being responsible for preventing subsurface leakage. The State’s negligence in failing to take adequate measures to prevent overflow of the ponds in heavy rains would, under long-standing principles of joint and several liability, subject it to full liability for remediation of the downgradient contamination even if subsurface leakage also contributed to that property damage. (See American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586-589.) Whatever claims for contribution or indemnity might exist between the joint tortfeasors in such a case, each of them would be liable to the plaintiffs for the entirety of the property damage. In those circumstances, the full damages assessed in the federal action would be “sums which the Insured . . . [became] obligated to pay . . . for damages . . . because of” property damage, and hence within Insurers’ contractual indemnity obligation. Nothing in the policies indicates Insurers are relieved of that obligation because, in reality, the State was also responsible for an excluded cause of the property damage.
Insurers argue that while Partridge involved a single injury (the shooting of the insured’s passenger), here each source of contamination (the two overflow events and the various subsurface leakage pathways) caused damage of its own; they assert contamination from leakage occurred, for example, before and after the 1969 discharge. The distinction is valid as far as it goes: one can differentiate in theory between hazardous chemicals that entered the surrounding environment in the 1969 and 1978 overflows and those that leaked gradually from the site over the entire period of its operation. But the summary judgment record fails to establish that the cost of remediating the contamination can be divided in this manner; indeed, the State’s pertinent admission was that it could not divide the “work performed to date” according to the event causing contamination. Thus the damages for which the State is liable appear, at least on this record, to be indivisible.
Under California tort law, a set of injuries for which the damages are indivisible is treated the same as a single injury: the tortfeasor is liable for the entirety of the damages. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 60 (Bertero).) Bertero involved damages for malicious prosecution. In the original, underlying lawsuit, the defendants had not only answered Bertero’s complaint but had also cross‑complained against him. That case was resolved in favor of Bertero, who then brought and won a suit against the original defendants for malicious prosecution of the cross-complaint. (Id. at pp. 48-50.) We held Bertero could maintain an action for malicious prosecution of a cross-complaint, even though that pleading had been closely related to defense of Bertero’s original complaint. (Id. at pp. 50-53.) This led to the question of whether Bertero could recover the ordinary measure of malicious prosecution damages for a cross-complaint that was “premised upon the same theories as was a privileged affirmative defense.” (Id. at p. 60.)
We held the full measure of damages applicable. It was, we observed, “difficult if not impossible” to apportion the malicious prosecution damages between those attributable to defending the cross-action and those attributable to overcoming the affirmative defense. (Bertero, supra, 13 Cal.3d at p. 60.) In such circumstances, we held, “the burden of proving such an apportionment must rest with the party whose malicious conduct created the problem. To place the burden on the injured party rather than upon the wrongdoer would, in effect, clothe the transgressor with immunity when, because of the interrelationship of the defense and cross-action, the injured party could not apportion his damages.” (Ibid.) Just as California tort law requires “that a defendant prove what portion of the totality of damages his negligence has caused when the evidence establishes that he has contributed substantially to the total damages” (ibid.), so the defendant in Bertero bore the burden of showing, if it could be shown, what portion of the proven damages was attributable to its privileged assertion of a defense. (Cf. Rest.3d Torts, Apportionment of Liability, § 26 [where damages for an injury cannot be divided causally among multiple tortfeasors, each is liable for the indivisible amount to the extent provided by the applicable rules of joint and several liability and comparative fault].)
Bertero’s holding applies here. If, in the underlying federal action, the State had not been liable for damage from subsurface leakage (whether because of a defense or immunity, or because leakage was the fault of another party), then the burden of proving what part of the remediation cost was attributable to leakage would have rested with the State, not with the federal court plaintiffs. If the remediation cost could not be so apportioned — as the State’s discovery response suggests — the State would have been liable to the federal court plaintiffs for all the remediation costs. As in Partridge, supra, 10 Cal.3d 94, where a single injury was caused by covered and excluded acts, so too here, where the damages caused by covered and excluded events appear indivisible, the entirety of the federal court damages are, in the policies’ terms, “sums which the Insured . . . [became] obligated to pay . . . for damages . . . because of” nonexcluded property damage.
Applicability of the Partridge approach here is necessarily premised on the indivisibility of the remediation costs awarded as damages in the federal action. If, to the contrary, only a provably distinct amount of the remediation costs were attributable to “sudden and accidental” discharges of pollutants, only that amount would constitute “sums which the Insured . . . [became] obligated to pay . . . for damages . . . because of” property damage from “sudden and accidental” discharges. The Court of Appeal thus correctly observed that at trial “the State would have to prove its damages were indivisible to claim coverage under Partridge,” while Insurers could offer evidence the damages were not indivisible. As already noted, however, the summary judgment record — particularly the State’s admission it could not allocate amounts already spent on remediation among the various sources of contamination — establishes at least a triable issue as to whether the damages are divisible.^[4]
As noted, Insurers rely primarily on Golden Eagle, supra, 85 Cal.App.4th 1300. The insured in Golden Eagle, a petroleum refiner, had polluted its refinery site by discharging petroleum hydrocarbon constituents on and into the ground. The insured sought indemnity for its government-ordered remediation costs. (Id. at p. 1304.) The insurers sought summary judgment based on qualified pollution exclusions, presenting evidence of “routine, repeated and intentional” discharges by the insured having caused the contamination (id. at p. 1308) and the insured’s admission that it could not assign any particular portion of the property damage to any particular event (id. at p. 1310).
The appellate court held the insurers had established their entitlement to summary judgment by showing that, because the property damage was indivisible, Golden Eagle Refinery Co., the insured, “could not reasonably be expected to prove what proportion, if any, of the millions of dollars of alleged damages were under the coverage of which of the various policies issued by respondents, failing which, Golden Eagle could not recover anything.” (Golden Eagle, supra, 85 Cal.App.4th at p. 1311.) The policyholder, relying on Travelers Casualty & Surety Co. v. Superior Court, supra, 63 Cal.App.4th at page 1460, argued coverage depended only on a showing that “an appreciable amount” of the environmental damage was caused by sudden and accidental events, over and above that caused by routine, intentional dumping. The Golden Eagle court rejected this approach: “Golden Eagle’s argument that it need only prove that a sudden and accidental event caused an appreciable amount of the contamination is wrong because it is essentially a tort approach. Golden Eagle’s claim is for indemnity and sounds in contract. To prove a claim for breach of contract, more is required than evidence that a covered cause was a ‘substantial contributing cause’ of its damage. ‘Substantial cause’ may be sufficient to make a prima facie case in a tort action in order to support a joint and several judgment, but in the context of a coverage dispute relating only to the duty to indemnify, the tort threshold is not sufficient.” (Golden Eagle, at p. 1316.) Because the insured could not quantify the damages resulting from sudden and accidental discharges, it could recover nothing. (Id. at pp. 1316-1317.)
The quoted passage reveals the fundamental flaw in Golden Eagle’s reasoning. In analyzing coverage under a liability policy, a “tort approach” (Golden Eagle, supra, 85 Cal.App.4th at p. 1316) to causation of damages is precisely what is called for, as we demonstrated in Partridge, supra, 10 Cal.3d 94, and explained in Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d 395. When the insurer has promised to indemnify the insured for all “sums which the Insured shall become obligated to pay . . . for damages . . . because of” nonexcluded property damage, or similar language, coverage necessarily turns on whether the damages for which the insured became liable resulted — under tort law — from covered causes. Thus, “the right to coverage in the third party liability insurance context draws on traditional tort concepts of fault, proximate cause and duty.” (Id. at p. 407.)^[5]
Contrary to Golden Eagle’s reasoning, the fact that “ ‘[s]ubstantial cause’ may be sufficient to make a prima facie case in a tort action in order to support a joint and several judgment” (Golden Eagle, supra, 85 Cal.App.4th at p. 1316) does imply that such tort law (substantial factor) causation is sufficient to create coverage under a liability policy when covered and excluded acts or events have concurred in causing injury or property damage. That was the holding of Partridge (a decision Golden Eagle did not address), which concluded that when multiple acts or events “constitute concurrent proximate causes of an accident, the insurer is liable so long as one of the causes is covered by the policy.” (Partridge, supra, 10 Cal.3d at p. 102.) Indeed, to explain our holding in Partridge we hypothesized the application of “traditional joint tortfeasor principles” (id. at p. 103), as we have also done earlier in this opinion. And as also demonstrated in this opinion, when the damages cannot be apportioned between two tortfeasors or between tortious and nontortious causes, a tortfeasor whose acts have been a substantial factor in causing the damages is legally responsible for the whole. (Bertero, supra, 13 Cal.3d at p. 60.) We therefore disapprove Golden Eagle Refinery Co. v. Associated Internat. Ins. Co., supra, 85 Cal.App.4th 1300, insofar as it holds an insured must not only show a covered cause contributed substantially to the damages for which the insured was held liable, but must also show how much of an indivisible amount of damages resulted from covered causes. (See id. at pp. 1316-1317.)^[6]
The insured under a third party liability policy has the burden of proving a covered act or event was a substantial cause of the injury or property damage for which the insured is liable, and this burden extends to showing the causal act or event was within an exception to a policy exclusion when the insurer has shown the exclusion applicable. (Aydin Corp. v. First State Ins. Co., supra, 18 Cal.4th at p. 1194.) In addition, when the damages for which the insured is liable relate to distinct, divisible injuries or items of property damage, the insured has the burden of proving which of those are attributable to causes within the exclusion’s exception, for only the corresponding portion of the damages constitutes “sums which the Insured shall become obligated to pay . . . for damages . . . because of” nonexcluded property damage.^[7] But if the insured proves that multiple acts or events have concurred in causing a single injury (as in Partridge) or an indivisible amount of property damage (as may be shown at trial here), such that one or more of the covered causes would have rendered the insured liable in tort for the entirety of the damages, the insured’s inability to allocate the damages by cause does not excuse the insurer from its duty to indemnify. The insurer, of course, may counter the insured’s evidence of indivisibility with its own evidence that the damages are divisible and that only a limited portion of them resulted from covered events.^[8]
Our holding does not extend indemnity to situations where the policyholder can do no more than speculate that some polluting events may have occurred suddenly and accidentally, or where sudden and accidental events have contributed only trivially to the property damage from pollution. Cases have properly held against indemnity where the insured can make only “unsubstantiated claims of sudden and accidental discharges in the face of repeated, continuous discharges in the course of business.” (SMDA v. American Ins. Co., supra, 572 N.W.2d at p. 705; see Travelers Casualty & Surety Co. v. Superior Court, supra, 63 Cal.App.4th at p. 1460 [insured “must do more than point to possible” sudden and accidental events; it must show such events caused “appreciable amount of environmental damage”]; Highlands Ins. Co. v. Aerovox Inc. (Mass. 1997) 676 N.E.2d 801, 806 [insured must show sudden and accidental event caused “more than a de minimis amount of the damages for which it is now liable”]; Home Indem. Co. v. Hoechst Celanese Corp. (N.C.Ct.App. 1998) 494 S.E.2d 774, 784 [same].) Only if the insured can identify particular sudden and accidental events and prove they contributed substantially to causing indivisible property damage for which the insured bore liability is the insurer obliged to indemnify its insured for the entirety of the damages.
The summary judgment record showed the existence of triable issues of fact as to whether the 1969 and 1978 events occurred suddenly and accidentally, whether they contributed substantially to the downslope contamination of soil and groundwater for which the State was held liable in damages, and whether those damages were incapable of division according to causal event. Summary judgment for Insurers based on the policies’ qualified pollution exclusions was therefore improper.

Disposition

The judgment of the Court of Appeal is reversed insofar as the court directed the superior court to grant Insurers’ alternative motion for summary adjudication establishing that the 1978 discharge was excluded by the qualified pollution exclusion. The judgment is otherwise affirmed, and the cause is remanded to the Court of Appeal for further proceedings consistent with this opinion.
WERDEGAR, J.

WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
MORENO, J.
CORRIGAN, J.
MOSK, J.^*

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion State of California v. Allstate Insurance Company
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 146 Cal.App.4th 851
Rehearing Granted

__________________________________________________________________________________

Opinion No. S149988
Date Filed: March 9, 2009
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Erik Michael Kaiser

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Gordon B. Burns, Deputy State Solicitor General, Darryl L. Doke and Jill Scally, Deputy Attorneys General; Cotkin, Collins & Ginsburg, Cotkin & Collins, Roger W. Simpson, David W. Johnson, Jr.; Law Offices of Daniel J. Schultz, Daniel J. Schultz; Anderso nmn Kill & Olick, Robert M. Horkovich and Edward J. Stein for Plaintiff and Appellant.

Morgan, Lewis & Bokius, Michael Y. Horton, Jason K. Komorsky and David S. Cox for League of California Cities as Amicus Curiae on behalf of Plaintiff and Appellant.

Winston & Straw, Scott P. DeVries and Yelitza V. Dunham for Aerojet-General Corporation as Amicus Curiae on behalf of Plaintiff and Appellant.

Gauntlett & Associates, David A. Gauntlett and Eric R. Little for United Policyholders, Consumer Federation of America and Center for Community Action & Environment as Amici Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Nixon Peabody, Bruce E. Copeland and Alan S. Feiler for Defendant and Respondent Allstate Insurance Company.

Berkes Crane Robinson & Seal, Steven M. Crane and Barbara S. Hodous for Defendant and Respondent Columbia Casualty Company.

Berman & Aiwasian, Deborah Aiwasian, Alan S. Berman and Steven P. Haskell for Defendant and Respondent Century Indemnity Company.

Riedl, McCloskey & Waring and Andrew McCloskey for Defendant and Respondent Westport Insurance Company.






Page 2 – S149988 – counsel continued

Attorneys for Respondent:

Wiley Rein & Fielding, Wiley Rein, Laura A. Foggan, John C. Yang; Sinnott, Dito, Moura & Puebla, Randolph P. Sinnott and John J. Moura for Complex Insurance Claims Litigation Association as Amici Curiae on behalf of Defendants and Respondents.

Duane Morris, William J. Baron and Joleen C. Lenihan for Certain London Market Insurers and Great American Insurance Company as Amici Curiae on behalf of Defendants and Respondents.

Horvitz & Levy, Barry R. Levy and Peter Abrahams for TIG Insurance Company as Amicus Curiae on behalf of Defendants and Respondents.





Counsel who argued in Supreme Court (not intended for publication with opinion):

Roger W. Simpson
Cotkin & Collins
300 South Grand Avenue, 24th Floor
Los Angeles, CA 90071-3134
(213) 688-9350

Steven M. Crane
Berkes Crane Robinson & Seal
515 South Figueroa, Suite 1500
Los Angeles, CA 90071
(213) 955-1150



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