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Binkley v. State Farm Fire and Casualty Co.12/28/2001
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
G. Robert Binkley, as Trustee for the Binkley Family Trust, sued his insurer, State Farm Fire and Casualty Company. Binkley claimed that State Farm had a duty to pay for the cost of constructing a retaining wall on the Binkley property to prevent ongoing and future damage to adjacent property resulting from landsliding on the Binkley property. Binkley moved for summary adjudication on the issue of State Farm's duty. The trial court granted the motion. On appeal, State Farm argues that it had no duty to pay for the retaining wall because the wall represented a prophylactic measure which was not covered under the terms of the policy. As explained below, we disagree and will affirm the judgment.
Facts and Procedural Background
The undisputed facts are as follows. The Binkley Family Trust is the owner of eight and one-half acres of property located at 13570 Pierce Road in Saratoga, California. In 1991, Paul and Jacqueline Goddard moved into property adjacent to and downslope of the Binkley property.
In the Spring of 1992, the Goddards observed soil erosion occurring on the Binkley property. They expressed their concerns regarding this erosion to Binkley's father. Binkley was aware of these complaints and also aware that the Goddards were having to remove a significant amount of debris from the bottom of the hill. Neither Binkley nor his father did anything to stabilize the hillside in response to these complaints.
In March 1995, during a period of heavy rain, a portion of the hillside on the Binkley property failed. Mud and debris was deposited in the Goddard's backyard, damaging their tennis court, swimming pool and landscaping.
Shortly thereafter, the Goddards submitted a claim to State Farm, as Binkley's liability carrier, for the damage caused by the earth movement. State Farm initially paid over $14,000 to have the mud and debris moved from the Goddard property.
After March 1995, the landslides continued and worsened in frequency.
On March 7, 1996, the Goddards filed suit against Binkley, seeking damages and a permanent injunction. The Goddards alleged that commencing on or about March 10, 1995, and "regularly reoccurring thereafter with each significant rainstorm, Plaintiff's property has been repeatedly inundated with large quantities of water, soil and debris flowing from the Trust property downhill onto the Plaintiffs' property." The Goddards alleged a cause of action for nuisance, seeking recovery for damages that occurred to their property, for physical and mental injury , and also sought an injunction precluding any further discharge of water, mud, soil and debris from the Binkley property.
The lawsuit was tendered to State Farm. After initally indicating that it would pay for the cost of the retaining wall, State Farm ultimately concluded that such costs were not covered under Binkley's policy.
In 1998, the Binkley/Goddard lawsuit was settled. As part of the settlement, Binkley agreed to pay for the cost of constructing a retaining wall on the Binkley property. State Farm agreed to contribute to the settlement of the Goddard action but refused to pay any money toward the cost of constructing a retaining wall.
After the March 1995 landslide, the head scarp of the landslide on the Binkley property was about eight to ten feet in vertical he
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