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Sawyer v. Westchester Fire Insurance Company11/20/2002
nd to include the State as an additional insured on the Westchester policy, that it did not communicate such intent to its insurance broker or Westchester, and that it was not MCM's policy to obtain more insurance than the minimum required in its contracts. Thus, we conclude that the State does not qualify as an insured under subsection (b) above of the Westchester excess policy.
2. Westchester Did Not Have a Duty to Defend
Once again, to succeed on their contract claims and direct action, appellants were required to show that Westchester breached a duty to defend. (Amato v. Mercury Casualty Co. (1997) 53 Cal.App.4th 825, 831; Pruyn v. Agricultural Ins. Co., supra, 36 Cal.App.4th at pp. 515-516.) Appellants contend that Westchester had a duty to defend the State based on the policy language. But appellants selectively cite to only a portion of the policy. With respect to defense, the Westchester policy provides as follows:
"(1) We shall have the right and duty to defend any `Claim' or `Suit' seeking damages covered by the terms and conditions of this policy when:
"(a) the applicable limits of insurance [policies] set forth in Schedule A and to be maintained by you in accordance with Condition M of this policy (the `Underlying Insurance'), plus the applicable limits of other insurance have been exhausted by payments; or
"(b) Damages are sought for `bodily Injury ,' `Property Damage,' `Personal Injury,' or `Advertising Injury' which are not covered by `Underlying Insurance' or other insurance.
"(4) We will not be obligated to investigate, negotiate, settle or defend any `Claim,' `Suit,' or trial brought against, or applicable to, any `Insured' when:
"(a) insurance is available to or collectible by the `Insured' under any `Underlying Insurance' or other insurance;
"(b) the `Underlying Insurance' is not available or collectible because of the bankruptcy , insolvency or inability or failure to comply with any of its policy obligations of the underlying insurer(s) providing such `Underlying Insurance'; or
"(c) the `Underlying Insurance' is not available or collectible because you did not maintain or meet the requirements of such insurance as warranted by, or you otherwise violated the provisions of, Condition M of this policy."
"In any given case, of course, we look to the specific language of the excess policy to ascertain the existence of a duty to defend . . . ." (Ticor Title Ins. Co. v. Employers Ins. of Wausau (1995) 40 Cal.App.4th 1699, 1707; Community Redevelopment Agency v. Aetna Cas. & Surety Co. (1996) 50 Cal.App.4th 329, 338.) By its express terms, the Westchester policy only provides a duty to defend when the underlying insurance has been exhausted by payments or for damages "which are not covered by `Underlying Insurance' or other insurance." There is no duty to defend an action when there is any insurance "available or collectible" to the insured or when the underlying insurance is not "available" or "collectible" because of the underlying insurer's "failure to comply with any of its policy obligations." Thus, we find that under the terms of its policy, Westchester had no duty to defend, even when the primary insurer had refused to do so. Accordingly, we find no merit to appellants' contentions that because Westchester allegedly knew that St. Paul had refused to defend the State, Westchester was obligated to step forward and assume the defense.
We also find that the trial court was bound by Judge Chaney's prior ruling that St. Paul had a duty to defend. (Conway v. Bughouse, Inc. (1980) 105 Cal.App.3d 194, 196; see also Code Civ. Proc., ยง 437c, subd. (m)(i)
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