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Fidelity & Deposit Co. v. Charter Oak Fire Insurance Co.8/27/1998
pub. order 9/18/98 (see end of opn.)
(Super. Ct. No. BC156507)
APPEAL from a judgment of the Superior Court of Los Angeles County, Enrique Romero, Judge. Affirmed.
Appellant, Fidelity & Deposit Company of Maryland (F&D;, seeks contribution and indemnity from three insurance companies, including respondent, Charter Oak Fire Insurance Company (Charter Oak), for money F&D;paid in the defense and indemnity of Western Savings & Loan Association (WSLA) entities in the underlying action. The trial court granted Charter Oak's motion for summary judgment. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The Mountain Meadows Patio/Terrace project is a 172-unit town home development in Pomona, California. According to respondent, WSLA purchased the project in 1984, and the homes were built between 1985 and 1990. The underlying action was brought by Mountain Meadows Patio/Terrace Maintenance Association against several defendants, including Western Property Service Corporation and WSLA dba WSLA Development Corporation of California. The complaint alleged five causes of action arising from construction defects in the townhomes: negligence, breach of implied and express warranties, negligent misrepresentation, strict product liability, and negligence per se. Four insurance companies, including appellant, defended the action. These insurers paid all attorneys' fees, costs, and expenses arising from the defense of WSLA.
F&D;issued Policy No. SM 69 08 291 effective March 21, 1985 to April 1, 1988 to numerous insureds, including WSLA, Western Properties Service Corporation, and WSLA dba WSLA Development Corporation. This policy provided insureds with property and liability coverage for their premises and operations. The F&D;policy contained an "Exclusion or Excess Coverage" endorsement which excluded coverage for risks insured under several other policies, including those issued by Charter Oak. The policy issued by appellant had annual premiums of $158,571, $461,276, and $585,220, respectively, for each of the first three years of coverage.
Respondent Charter Oak (erroneously named and sued herein as the Travelers Aetna Insurance Company) issued Policy No. 650-503G264-3-COF-86 effective March 21, 1986 to March 21, 1987 to "WESTERN SAVINGS & LOAN ASSOC DBA MARINA INN." The Marina Inn is located in Russellville, Arkansas and was acquired by WSLA through foreclosure . A renewal policy (Policy No. 650-503G264-3-COF-87) was effective March 21, 1987 to March 21, 1988. Both policies were issued in Little Rock, Arkansas and provided first party property coverage and third party general liability coverage.
The general declarations pages of the Charter Oak policies specify that the business of the named insured is "MOTEL & RESTAURANT." "MOTEL" is typed in above the space designated for the name and address of the insured. The applicable buildings are listed as (1) "MOTEL" and (2) "OFFICE, RESTAURANT" located at "I-40 & HWY 7, RUSSELLVILLE AR." The mailing address for the named insured is 2901 West Airport, Russellville, Pope County, Arkansas 72701. A typed-in designation specifies that the insured is a "MOTEL," not an individual, partnership, or corporation. The premiums associated with the risk of property damage claims arising from "premises and operations" are $118 and $115, respectively, for the 1986-1987 and 1987-1988 policies. The premiums associated with the risk of property damage claims on "products/completed operations" are $175 and $151 for the two annual policy periods.
Change endorsements to the 1986-1987 Charter Oak policy list the "Named Insured" as "WESTBROOKE INNS MANAGEMENT IN
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