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Golden Eagle Insurance Co. v. Century Surety Company12/8/2003
plain and clear."'" (Quoting Gray v. Zurich Insurance Co., supra, 65 Cal.2d at p. 273.) Here, nothing in the "excess only" provision signals that the italicized clause falls outside the scope of the word "if," and thus the proposed interpretation would defeat the insured's objectively reasonable expectations.
Finally, during oral argument, Century suggested that because Pratali's letters stated that Golden Eagle was providing Cal Coast with a defense in the Solemint action, the condition immediately following the "if" in the "excess only" provision was satisfied, and thus Century properly concluded that its policy provided only excess coverage. This contention is meritless.
The condition in question was met only if "other valid and collectible insurance available" to Cal Coast for losses falling under the coverage provisions of the Century policy. As we have indicated (see Pt. B.2., ante), Pratali's letters did not conclusively rule out the potential that some of the damage alleged in the Solemint action fell exclusively within the coverage of the Century policy. Accordingly, Century had a duty to defend Cal Coast in the Solemint action. (Buss v. Superior Court (1997) 16 Cal.4th 35, 49 [insurer is generally obligated to defend entire action when some claims are potentially covered by insurer's policy].)
Summary judgment was therefore properly granted.
C. "Pro Rata" Provisions v. "Excess Only" Provisions
Century devotes virtually the entirety of its briefs to urging us to address an issue involving its "excess only" provision that was recently resolved against it in Century Surety Co. v. United Pacific Ins. Co., supra, 109 Cal.App.4th 1246. For the reasons that we explain below, we decline to do so.
In Century Surety Co., Century and three other insurers issued CGL policies to a general contractor covering discrete periods beginning in 1993. (Century, supra, 109 Cal.App.4th at p. 1251.) Century's policy contained the "excess only" provision at issue in this appeal, and the policies issued by the other insurers contained a "pro rata" provision identical to that found in the Golden Eagle policy. (Id. at pp. 1251-1252.)
When homeowners in a housing development built by the general contractor sued the general contractor, only Century declined to provide a defense, citing the "excess only" provision. (Century, supra, 109 Cal.App.4th at p. 1253.) Following a settlement of the homeowners action, Century sought declaratory relief against the other insurers regarding its conduct, and one of the other insurers cross-complained for declaratory relief. (Ibid.) After the parties filed cross-motions for summary judgment, the trial court granted summary judgment against Century. (Id. at pp. 1253-1254.)
Unlike the case before us, the issue in Century Surety Co. did not concern whether Century, in denying the general contractor's request for a defense, had properly concluded that the factual predicate of the "excess only" provision was satisfied, namely, that "other valid and collectible" primary insurance was available to the general contractor for Century policy period. The case was submitted to the court in Century Surety Co. on stipulated facts, and it assumed that all the circumstances necessary to sustain the operation of the "excess only" and the "pro rata" provisions were present. (Century, supra, 109 Cal.App.4th at p. 1254.)
Rather, the court in Century Surety Co. addressed the resulting conflict between the operation of these provisions. Under the circumstances, Century's "excess only" provision, if enforced, permitted Century to avoid providing primary coverage for its policy period simply because the o
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