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Tosco Corp. v. General Insurance Company of America12/28/2000
arged by post-policy period changes in applicable law." (Ibid., discussing AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 822, fn. 8, italics omitted.) However, the court added, in such cases of "statutorily expanded risk," coverage can be imposed only where the insured can demonstrate a "contemporaneous factual predicate," i.e., that all the facts necessary to establish coverage were in existence during the policy period "for liability subsequently imposed by law." (FMC, supra, 61 Cal.App.4th at p. 1154.)
Answering the contention that such a limitation had no basis in the language of the policy, the FMC court held in effect that the limitation was implied by law because "it is neither reasonable nor consonant with the terms of the general liability policies before us to require such insurers to cover liabilities based on facts which did not occur until after the policy period. A general liability insurer can realistically be said to be in the business of understanding and taking into account the legislative and judicial dynamics that produce changes in legal theories, but cannot be required to be clairvoyant as to the infinite possible future permutations of facts, fundamental to the very existence of coverage but not in existence during the policy period, once the policy period has expired." (Id. at pp. 1154-1155.)
The FMC court acknowledged the Supreme Court's admonition in Aerojet-General that insurance policies " `provide what they provide.' " (Id. at p. 1155, quoting Aerojet-General, supra, 17 Cal.4th at p. 75.) However, the Supreme Court had also described this principle as applicable "only ` s a general matter' and by no means inflexibly." (FMC, supra, 61 Cal.App.4th at p. 1155, quoting 17 Cal.4th at p. 75.) The FMC court also noted that the Supreme Court had imposed duties on insurers that it frankly acknowledged could not be justified by policy language. Thus in Buss v. Superior Court (1997) 16 Cal.4th 35, the Supreme Court reaffirmed the duty of an insurer to defend an entire "mixed action," i.e., one presenting both covered and excluded claims. (Id. at pp. 48-49.) The court in Buss wrote, "We cannot justify the insurer's duty to defend the entire `mixed' action contractually, as an obligation arising out of the policy, and have never even attempted to do so . . . . [ ] . . . e can, and do, justify the insurer's duty to defend the entire `mixed' action prophylactically, as an obligation imposed by law in support of the policy." (16 Cal.4th at pp. 48-49, fn. omitted; see FMC, supra, 61 Cal.App.4th at p. 1155.) The FMC court opined that to require a factual predicate for coverage during the policy period is "perhaps comparable in significance to . . . the duty to defend `mixed' actions" and is "fundamental to the concept of liability insurance." (Id. at p. 1155.) Accordingly it reaffirmed its holding in A. C. Label. (FMC, supra, 61 Cal.App.4th at p. 1154.)
We note that A. C. Label was cited and quoted with approval by Division Five of this court in General Accident Insurance Co. v. Superior Court (1997) 55 Cal.App.4th 1444, 1453-1454. Although the Ninth Circuit has recently reached a contrary conclusion (In re K F Dairies, Inc. & Affiliates, supra, 224 F.3d 922), we see no reason to depart from the holdings of our fellow Courts of Appeal. Accordingly, we find no error in the trial court's granting of summary judgment in favor of the respondent insurers.
The judgments are affirmed.
We concur:
Reardon, Acting P.J.
Woolard, J.
Trial Court: San Francisco County Superior Court
Trial Judge: Honorable Carlos M. Bea
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