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Foster-Gardner Inc. v. National Union Fire Insurance Co.8/3/1998
at that meaning is. The insurers assert that the word "suit" in the policies means a civil action commenced by filing a complaint. Anything short of this is a "claim." Foster-Gardner asserts that "suit" means " `an attempt to gain an end by legal process' before a trial Judge or some other dispute resolution authority, as opposed to a threat to do so." Here, it asserts, the Order "is the substantive equivalent to a formal action brought in court." It defines a "claim" as "a threat to initiate . . . legal process or merely a demand as of right." We agree with the insurers.
The Order here essentially required Foster-Gardner to continue monitoring hazardous waste levels at the Site, prepare studies documenting the extent of Site contamination, and draft a proposal for remediating the Site. As the Court of Appeal acknowledged, "A Determination and Order does not commence either a lawsuit in court or an adjudicative procedure before an administrative tribunal. Instead, it is simply an order from an administrative agency. It is only in the event that a does not comply with a Determination and Order that an enforcement action in court might follow." As Pacific asserts, "The very fact that the Court can easily determine that an HSAA proceeding is not a suit . . . indicates that the Court knows what an actual suit is by the term's use in the policy."
As noted earlier, "A policy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable." (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 18; Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co., supra, 5 Cal.4th at p. 867.) The primary attribute of a "suit," as that term is commonly understood, is that parties to an action are involved in actual court proceedings initiated by the filing of a complaint. (Black's Law Dict. (6th ed. 1990) p. 1434 ["Suit" is " generic term, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a court of law in which the plaintiff pursues, in such court, the remedy which the law affords him . . . Term `suit' has generally been replaced by term `action'; which includes both actions at law and in equity."]; Webster's New Collegiate Dict. (9th ed. 1987) p. 1180 ["suit" is "an action or process in a court for the recovery of a right or claim"].) As the Court of Appeal in Fireman's Fund stated, "A `claim' can be any number of things, none of which rise to the formal level of a suit -- it may be a demand for payment communicated in a letter, or a document filed to protect an injured party's right to sue a governmental entity, or the document used to initiate a wide variety of administrative proceedings . . . . While a claim may ultimately ripen into a suit, `claim' and `suit' are not synonymous." (See Phoenix Ins. Co. v. Sukut Construction Co., Inc. (1982) 136 Cal.App.3d 673, 677 [Claim "is a demand for something as a right, or as due. A formal lawsuit is not required before a claim is made."]; cf. Perzik v. St. Paul Fire & Marine Ins. Co. (1991) 228 Cal.App.3d 1273, 1277 [" uit for damages unambiguously refers to civil litigation . . . that is, lawsuits alleging `professional liability claims.' "]; Safeco Surplus Lines Co. v. Employer's Reinsurance Corp. (1992) 11 Cal.App.4th 1403, 1408, italics omitted [" ` here is an inherent difference between the `making' of a claim and the `bringing' of a lawsuit. The former, by its very nature, involves some kind of notice. The latter only requires the filing of a complaint.' "].) Thus, a reasonable construction of the word "suit" is a lawsuit.
In contrast, Foster-Gardner's construction of the term "suit" is not reasonable. There is not
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