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Hirsh v. Truck Insurance Exchange2/20/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Robert Hirsh appeals from a judgment entered in favor of defendant Truck Insurance Exchange after the court granted defendant's motion for summary judgment and denied plaintiff's motion for summary adjudication. Plaintiff contends defendant had a duty to defend him against a cross-complaint ("XC") filed in an underlying action as it pled malicious prosecution type facts. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
I. The Policy
From September 30, 1997, through September 30, 1998, appellant was the holder of an umbrella insurance policy issued by respondent (the "Policy") which, among other things, provided for a defense of malicious prosecution lawsuits.
II. Underlying Action
In 1997, appellant entered into a contract for an "as is" purchase of a house from David Gursky. In December 1997, appellant sued Gursky and George Baral, the home inspector, for intentional misrepresentation, suppression of material facts, breach of contract and several other causes of action. Appellant alleged Gursky had failed to disclose numerous defects and Baral had failed to discover and disclose certain defects.
In April 1998, Gursky and Baral cross-complained against appellant for breach of contract, rescission, fraud, indemnification, equitable contribution and attorney's fees. The XC alleged appellant knew about the defects but went ahead with the purchase anyway. Appellant demurred, in part, on the basis each cause of action was a species of malicious prosecution.
Appellant tendered the XC to respondent for a defense in April 1998. Respondent refused to defend on the basis there was no potential for coverage as none of the XC's causes of action were for personal injury or property damages. Respondent wrote appellant that contract claims were not within the contemplation of his liability policy and that the allegation he had duped the cross-complainants into actions that enabled him to sue them was not a claim for malicious prosecution.
After the court sustained appellant's demurrer to the XC, Gursky and Baral filed a first amended cross-complaint ("FACC") adding a cause of action for breach of the implied covenant of good faith and fair dealing and deleting the causes of action for implied indemnity and attorney's fees. Appellant demurred to the FACC partly on the ground it pled malicious prosecution type facts. The court sustained the demurrer without leave to amend.
III. Instant Action
In September 1999, appellant commenced this action for breach of contract and breach of the implied covenant to recover the attorney's fees and costs he incurred in defense of the XC. A first amended complaint, the operative pleading, was filed in February 2000.
Appellant filed a motion for summary adjudication on the issue of respondent's duty to provide him with a defense to the XC. The court denied the motion.
Respondent filed a motion for summary judgment on the ground it was not obligated to defend appellant. The court granted the motion on the basis the cross-complaints did not state a cause of action for malicious prosecution, there was no potential for coverage, and, thus, no duty to defend. A judgment was entered.
Appellant filed a timely notice of appeal.
DISCUSSION
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