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Golden Eagle Insurance Co. v. Century Surety Company12/8/2003
ral tenders by Golden Eagle. These tenders were apparently intended to give Century adequate notice of the Solemint action, thereby paving the way for a request from Golden Eagle for equitable contribution from Century should it decline to participate (See Truck Ins. Exchange v. Unigard Ins. Co., supra, 79 Cal.App.4th at pp. 973-984).
On summary judgment, Century submitted a declaration from Signore, who stated that he had investigated Cal Coast's claim, and had determined that the pertinent damages were continuous and progressive " ased upon the documents and investigative information available to at the time of tender." However, Signore does not cite anything that he reviewed beyond the arbitration demand and the letters from Pratali.
We therefore examine whether the information in Pratali's letters constituted "`undisputed facts which conclusively eliminate a potential for liability.'" (Montrose I, supra, 6 Cal.4th at pp. 298-299, italics added.) Both letters stated that the description of the alleged damages as progressive and continuous were " ased upon . . . initial information" (italics added), and no source for this description was indicated. Pratali's second letter, unlike his first letter, refers to Cal Coast as the source of some information, but this information is solely about the date of the relevant construction project and Cal Coast's role in this project. The tentative nature of Pratali's information is displayed in his second letter, which corrected and elaborated statements made in his first letter.
Tentative and incomplete information of this sort does not nullify the potential for policy coverage. In County of San Bernardino v. Pacific Indemnity Co. (1997) 56 Cal.App.4th 666, a county created a landfill in 1955, and until 1973, a single insurer provided primary coverage concerning the landfill operations under a CGL policy. (Id. at p. 673.) Starting in 1980, adjacent landowners sued the county, alleging that it had negligently allowed gases to escape from the landfill. (Id. at pp. 673-674.)
Although the landowners' complaints did not allege the dates of injury , the insurer declined (in whole or in part) to defend these actions on the ground that the injuries had occurred after 1973. (County of San Bernardino v. Pacific Indemnity Co., supra, 56 Cal.App.4th at pp. 674-675, 683.) The insurer's basis for this denial was a 1997 engineering report indicating that for a two-week period in 1997, no gases were detected at the landfill. (Id. at pp. 685-686.)
Under the principles stated in Montrose I, the court in County of San Bernardino held that this report did not adequately support the insurer's refusals to defend. (County of San Bernardino v. Pacific Indemnity Co., supra, 56 Cal.App.4th at p. 686.) It reasoned that the report did not conclusively rule out the possibility of gas releases during the policy period, noting that the report itself did not conclude that the landfill could not have emitted gases before 1997, and it was otherwise subject to attack by conflicting evidence at trial. (Ibid.; see also Wausau Underwriters Ins. Co. v. Unigard Security Ins. Co. (1998) 68 Cal.App.4th 1030, 1043-1047 [environmental agency's order and plan that did not conclusively eliminate potential for policy coverage did not adequately support insurer's refusal to defend].)
In view of County of San Bernardino, Pratali's letters did not conclusively nullify the potential for coverage under Century's policy. The letters characterized the alleged damages in the Solemint action on the basis of "initial information" from an undisclosed source. To the extent that Pratali's statements may have been based on his interpretation of the allegations
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