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Sawyer v. Westchester Fire Insurance Company11/20/2002
clusion. Second, since liability for supervision is equivalent to vicarious liability under the National Union decision, the named insured must be also be negligent. As St. Paul points out, there cannot be sole negligence for supervision of another party's work because sole negligence means the other party is not negligent. Here, this court affirmed the summary judgment in favor of MCM, finding that MCM was not negligent as a matter of law. Where MCM is not negligent, there is no coverage under the additional insured endorsement.
Thus, we find that that the trial court did not err in concluding that there was no coverage for the judgment against the State under the additional insured endorsement to the St. Paul policy. In light of the foregoing, we find that the correct measure of damages was the costs and attorney fees expended by the State in defending the underlying actions. (Pruyn, supra, 36 Cal.App.4th at p. 514, fn. 15; Amato v. Mercury Casualty Co., supra, 18 Cal.App.4th at pp. 1793-1794.)
B. St. Paul Had a Duty to Defend
St. Paul contends that the trial court erred in denying its motion for summary adjudication and granting appellants' motion for summary adjudication on the issue of whether St. Paul had a duty to defend the State in the underlying actions. The trial court concluded that because there was potential coverage under the additional insured endorsement, St. Paul breached its duty to defend. We agree.
As the California Supreme Court has acknowledged, "`the duty to defend is broader than the duty to indemnify; an insurer may owe a duty to defend its insured in an action in which no damages ultimately are awarded.'" (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295.) "`The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Facts extrinsic to the complaint also give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy.'" (Ibid.)
St. Paul contends that there was no potential for coverage for the underlying actions against the State because the complaints were devoid of allegations revealing any potential for coverage and the information discovered by St. Paul during its investigation showed that there was no coverage.
The trial court stated that it had reviewed the complaints filed by appellants in the underlying actions. The Judicial Council form complaint filed by appellant Lane alleged in the cause of action for general negligence that a complete lighting blackout on the 710 freeway was a dangerous condition for which the State was liable and that the freeway was previously illuminated but that "due to construction work being performed . . . said illumination equipment, while present, was not functioning and that there were no postings or other warning to motorists that said illumination equipment was not functioning . . . ." The Judicial Council complaint filed by appellants Sawyer and Williams alleged that the State "failed to adequately supervise, inspect and maintain the subject location in that various lights adjacent to the perimeter of the freeway at said location were not lit thereby causing said portion of the freeway to be unlit, dark and unsafe to the extent that plaintiff Tran Bernard Sawyer was unable to see the disabled vehicle . . . ." The trial court found these allegations sufficient to show that the claims "may" fall within policy coverage. We agree.
St. Paul contends that the reference in the Sawyer complaint is to "supervision of the `subject location' (the accident scene), not supervision of construction wor
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