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Kerns v. CSE Insurance Group2/19/2003
CERTIFIED FOR PUBLICATION
Darlene Kerns appeals from summary judgment entered in favor of respondent CSE Insurance Group upon the latter's motion pursuant to Code of Civil Procedure section 437c and the denial of her cross-motion for summary judgment. Appellant, the assignee of respondent's insureds, had filed suit to enforce respondent's alleged duty to defend its insureds in a previously-settled personal injury lawsuit. At issue on this appeal are the following contentions: (a) the trial court acted in excess of its jurisdiction by entertaining and ruling on respondent's motion for summary judgment when a different judge had previously denied the identical motion and the renewed motion was in violation of the controlling procedural requirements set forth in section 1008; (b) the trial court erred in determining as a matter of law that there was no potential for coverage under respondent's policy and thus no duty to defend the insureds, appellant's assignors; and (c) the undisputed facts demonstrate that appellant herself was entitled to summary judgment on the issue of respondent's duty to defend.
On the procedural and factual record presented, we conclude that the trial court exceeded its jurisdiction by entertaining respondent's renewed motion for summary judgment, because in so doing it violated the exclusive and controlling procedural prerequisites set by section 1008 for the reconsideration or renewal of a previously denied motion. The trial court left unaddressed and undecided important triable issues of material fact on the basis of which summary judgment had previously been denied. For these reasons, we must reverse.
Factual and Procedural Background
On February 12, 1997, respondent issued a personal homeowners policy (the Policy) to C. M., effective for the policy period from January 28, 1997, to January 28, 1998. In the portion dealing with coverage for personal liability, the Policy specified that respondent would defend and indemnify claims made against the insured on account of bodily injury or property damage "caused by an occurrence." The Policy specifically defined "occurrence" as "an accident, including continuous and repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: [ ] a. bodily injury; or [ ] b. property damage." The specified limit of liability on coverage "for all damages resulting from any one occurrence" was $100,000, "regardless of the number of insureds, claims made or persons injured." Among the standard endorsements expressly incorporated in the Policy were exclusions from liability coverage for (a) any bodily injury "which is expected or intended by an insured or which is the forseeable result of an act or ommission intended by an insured"; and "any illegal act commited by or at the direction of an insured."
In the early morning hours of March 1, 1997, C. M.'s daughter, 16- year-old D. M., was arrested for vandalizing a house with a crowbar. When searched by a Contra Costa County deputy sheriff, she was found in possession of two hypodermic syringes. She was released to the custody of her father. Approximately two hours later, she broke a window of appellant's house and entered. According to D.'s own deposition testimony, she had been using " rank," or methamphetamine, for at least two months, and found it "addicting." At the time of the incident she was feeling "temporarily schiz," "paranoid," and was "hearing voices," as she had for some " wo months or so." Even when she made a conscious attempt to stop using crank, she continued to hear voices and have visual and auditory hallucinations. Appellant "had some plants and stuff hanging." When D. "he
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