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Golden Eagle Insurance Co. v. Century Surety Company12/8/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 underlying action for equitable contribution and indemnity by respondent Golden Eagle Insurance Company (Golden Eagle) against appellant Century Surety Company (Century), the trial court granted summary judgment in favor of Golden Eagle. We affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The following facts are not in dispute: In March 1991, Solemint Heights Partnership (Solemint) hired Cal Coast Construction Specialists, Inc. (Cal Coast) as a subcontractor in the construction of the River Park Apartments, a 544-unit complex in Canyon Country. Cal Coast provided rough framing, and was also involved in work on windows, ceilings, paneling, and other aspects of the project. Construction was completed in or about 1992.
Golden Eagle issued commercial general liability (CGL) insurance policies to Cal Coast for a two-year period, effective February 5, 1992. These policies contain an "other insurance" clause known as a "pro rata provision." (Century Surety Co. v. United Pacific Ins., Co. (Century) (2003) 109 Cal.App.4th 1246, 1255.) Under this provision, if other "valid and collectible" primary insurance was available to Cal Coast for a loss covered under Golden Eagle's policy, then Golden Eagle would contribute proceeds under its policy on a pro rata basis, according to enumerated methods.
Subsequently, Century issued a CGL insurance policy to Cal Coast for a one-year period, effective February 5, 1997. The policy contains an "other insurance" clause known as an "excess only" provision. (Century, supra, 109 Cal.App.4th at p. 1255.) This clause states: "4. Other Insurance: [ ] If other valid and collectible insurance is available to any insured for a loss we cover under [the coverage provisions], then this insurance is excess of such insurance and we will have no duty to defend any such claim or `suit' that any other insurer has a duty to defend."
On or about October 20, 1998, Solemint initiated an arbitration proceeding against Cal Coast (the Solemint action) before the American Arbitration Association (AAA). Solemint's demand for arbitration described the nature of the dispute as " egligent performance of services rendered on the Riverpark project and breach of written contract," and the relief sought as " amages in an amount yet to be ascertained, but which exceed $8,000,000." The demand was otherwise silent about the dates of damage, and did not indicate whether the damages were continuous and progressive or episodic in nature.
Golden Eagle defended and indemnified Cal Coast in the Solemint action. On January 15, 1999, Alan Pratali, an employee of Golden Eagle, sent Century and several other insurers copies of the demand for arbitration.
In an accompanying letter, Pratali asked Century and the other insurers to participate in the defense of Cal Coast. This letter referred to the holding in Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, sometimes called "Montrose II," in view of a prior case, Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287 (Montrose I). In Montrose II, supra, 10 Cal.4th at p. 689, our Supreme Court concluded that when a third-party insurance claim involves continuous or progressively deteriorating damage extending through the coverage periods of successive policies, the proper trigger of coverage is the so-ca
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