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Syntex Corp. v. Lowsley-Williams and Companies11/10/1998
as the kind of property damage for which Syntex seeks coverage expected by Syntex at any of the Bliss sites at any time prior to August 1, 1983?" The second and third asked, "Was the release of a pollutant or contaminant from which property damage arose both sudden and accidental . . . ?" The fourth question, on the number of occurrences, stated, "Separate occurrences may be combined insofar as the damage constituted `exposure to [certain conditions].' " Following the jury's verdict making findings in favor of Syntex, London Insurers made a motion for a new trial, and argued that the trial court erred by determining after phase I that all carriers' policies were triggered, by failing to permit London Insurers to adduce evidence on property damage, and by failing to put the issue of property damage before the jury. The trial court denied the motion.
II. Discussion
London Insurers contend that the trial court erred by determining, in phase I, that London Insurers' indemnity obligations under the 1970-1973 insurance policy was "triggered" as a matter of law based only on the allegations in the underlying complaints and claims by the state and federal government. As a result of this fundamental error, continues London Insurers, the trial court further erred by determining that Syntex was not required to, and did not, prove that property damage occurred during the period of any insurance policy, and by failing to instruct the jury that they must determine if and when property damage occurred from Bliss's sprayings. London Insurers conclude that the trial court erred by denying its motion for a new trial based on the erroneous property damage ruling and jury instructions.
Syntex contradicts London Insurers' version of the trial court's phase I decision, contending that the trial court did not preclude evidence on the nature and extent of property damage. While not actually disputing London Insurers' claim that the jury was improperly instructed, Syntex asserts that it proved the existence of property damage sufficient to trigger the policies and that London Insurers never disputed this evidence. We hold that the trial court erred in its instructions to the jury. We further hold that the special verdict forms did not require a finding on the timing, nature, or extent of property damage and that the jury did not make such a finding. Reviewing the trial court's denial of the motion for a new trial for an abuse of discretion, we conclude that reversal is warranted. (Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 858 (Mosesian).
A. Instruction on Property Damage
London Insurers first contend that the trial court prejudicially erred by failing to instruct the jury on whether property damage occurred during the 1970-1973 policy period. We agree that the trial court erred, but find that the error was harmless.
The Montrose court, in conjunction with its Discussion of trigger of coverage, observed, "Whether coverage is ultimately established in any given case may depend on the consideration of many additional factors, including the existence of express conditions or exclusions in the particular contract of insurance under scrutiny, the availability of certain defenses that might defeat coverage, and a determination of whether the facts of the case will support a finding of coverage." (Montrose, supra, 10 Cal.4th at p. 655, italics added.) Furthermore, " hether the damages and injuries alleged were in fact `continuous' is itself a matter for final determination by the trier of fact." (Id. at p. 694.) This statement of law is a refinement of the requirement placing " he burden . . . on an insured to establish that the occurrence forming the basis of it
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