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Kerns v. CSE Insurance Group2/19/2003
rily also extinguished. Appellant is no more entitled than is respondent to entry of judgment on an issue that at this point remains to be decided.
Turning from appellant's procedural arguments to those of substance, she contends the trial court erred in denying her own motion for summary judgment because respondent failed to demonstrate that the potential for indemnification coverage had been eliminated. In essence, she argues that respondent's duty to defend the M. family was necessarily established by respondent's failure to disprove the potential for coverage under the Policy, based on evidence of D.'s alleged mental disorder or incapacity. This argument, like appellant's argument based on the denial of respondent's motion for summary judgment, ignores the fact there has not yet been any final determination of the disputed factual issues upon which she bases her claim. The evidence of D.'s mental incapacity, whatever its strength, must be weighed against the opposing evidence, if any, respondent may offer. Until that takes place, the issue of respondent's duty to defend simply remains unresolved.
In short, appellant's request for entry of judgment regarding any duty to defend is premature. Until the trial court actually weighs the conflicting evidence on the material factual issues identified in Judge Zuniga's order denying respondent's motion for summary judgment, there can be no final determination of the questions of Policy coverage and respondent's alleged duty to defend thereunder. As seen, the trial court has not yet tried these factual issues.
Disposition
The superior court lacked jurisdiction either to reconsider the earlier denial of summary judgment on respondent's motion, or to consider and rule upon respondent's reapplication therefor. The order granting respondent's motion for summary judgment is accordingly vacated, the judgment entered thereon is reversed, and the cause is remanded for consideration of the triable disputed issues of material fact identified in the original order denying summary judgment. Respondent shall pay appellant's costs on this appeal.
We concur:
Corrigan, J.
Parrilli, J.
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