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Sawyer v. Westchester Fire Insurance Company11/20/2002
position has been made of suits or claims against the State, and that " o funds will be retained or continue to be retained" where the Contractor establishes to the satisfaction of the State that at the time of the accident or occurrence giving rise to the claim or lawsuit it had in full force and effect liability insurance for a single limit for bodily injury or property damage in the amount of $500,000 each occurrence, $500,000 each aggregate, with the State as an additional insured on a form approved by the State.
A plain reading of the express terms of the State's contract with MCM shows that MCM is not obligated to obtain any liability insurance at all. Obtaining insurance is only one option for MCM. Alternatively, MCM could forego obtaining the insurance and simply allow the State to withhold any funds due to MCM. Moreover, contrary to appellants' suggestion that the State was to be insured for all liability assumed by MCM and not some minimum amount, the Standard Specifications do not so provide. If a contractor chooses to obtain liability insurance with the State as an additional insured, the Standard Specifications only require that the insurance be obtained in the amount of $500,000 for each occurrence or aggregate, and MCM obtained insurance from St. Paul up to the $500,000 limit. Thus, we conclude that the State does not qualify as an insured under subsection (a) above of the Westchester excess policy.
Appellants also contend that there was a triable issue of fact as to whether the State qualifies as an insured under subsection (b) above. To support its position, appellants cite to the Standard Specifications and the deposition testimony of an employee of MCM's insurance broker, Joseph Daniels, who testified that the State was always listed as an additional insured on all of MCM's policies, including excess policies. Appellants assert that his testimony establishes that MCM intended the State to be included as an insured in the Westchester policy. Westchester filed objections to this testimony on the grounds, among others, that under Code of Civil Procedure section 2025, subdivision (u), the testimony could not be used against it because at the time of the deposition, Westchester was not a party to the action, did not receive notice of the deposition and was not given an opportunity to question or cross-examine the deponent. The reporter's transcript of the hearing on the summary judgment motion indicates that Westchester's counsel orally requested the trial court to rule on the evidentiary objections, particularly those relating to the deposition of Joseph Daniels. In ruling on the motion, the trial court stated that appellants had failed to proffer admissible evidence showing that MCM opted to include the State as an additional insured. Because Joseph Daniels's testimony was the only evidence proffered by appellants in this regard, it is reasonable to assume that the trial court was ruling that this evidence was not admissible. Even if the trial court's statement could not be so construed, Westchester preserved the issue for appeal, having orally requested the trial court to make a ruling on the evidentiary objections. (City of Long Beach v. Farmers & Merchant Bank (2000) 81 Cal.App.4th 780, 784-785.)
In any event, we need not reach the issue of admissibility because we find there is nothing in Daniels's deposition testimony to support appellants' assertion that MCM "intended" the State to be included as an additional insured in the Westchester policy or that MCM did anything to exercise that option. To the contrary, Westchester submitted the declarations of MCM's general counsel and MCM's vice president and general manager, who both stated that at no time did MCM inte
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