JOHN P. MCATAMNEY, ET AL VS. JAMES E. MCGOVERN, INC.

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2:00 PM LINE: 3 25-CIV-01788 JOHN P. MCATAMNEY, ET AL VS. JAMES E. MCGOVERN, INC.

JOHN P MCATAMNEY ADAM M. KOSS JAMES E. MCGOVERN, INC. AUDREY S. TAM

DEFENDANT JAMES E. MCGOVERN, INC’S MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION

TENTATIVE RULING:

__________________________________________________________________________________________________

Initially, the Court notes that Defendant has not provided the correct address for the hearing. Department 2 is located at the Northern Branch, Courtroom K, 1050 Mission Road, South San Francisco, CA 94080. (See Cal. Rules of Court, rule 3.1110 [the notice “must specify” the location of the hearing].)

Through its Motion for Summary Judgment/Adjudication (the “Motion”), Defendant seeks summary judgment on the Complaint or, alternatively, summary adjudication of three issues defined in the Motion. The Motion for Summary Judgment is DENIED. The Motion for Summary Adjudication as to Issue No. 1 is DENIED. The Motion for Summary Adjudication as to Issue No. 2 is DENIED. The Motion for Summary Adjudication as to Issue No. 3 is DENIED. Plaintiffs’ Objections to Evidence in Opposition are ruled upon as indicated infra. Defendant’s Objections to Evidence in Reply are ruled upon as indicated infra.

BACKGROUND

The Complaint alleges that Plaintiffs, a construction firm and its sole shareholder, officer, and director, relied on Defendant, their insurance broker, which represented in writing that a new commercial general liability insurer, Mt. Hawley, offered “all of the same endorsements and coverages” as Plaintiffs’ then-current insurer, Colony, which Plaintiffs had previously procured through Defendant, but for more than $2,000 less. (Complaint, ¶¶ 3-4, 10-12, 15; see also Reply to Plaintiffs’ Additional Material Facts in Opp., AMF No. 1.)

After Plaintiffs were sued for alleged defects in a high-end home renovation project, they learned that the new policy contained a breach-of-contract exclusion that effectively rendered the policy worthless, and that Defendant refused to provide a declaration regarding the insurance or otherwise timely assist Plaintiffs. (Complaint, ¶¶ 14, 17-20; see also Reply to Plaintiffs’ Additional Material Facts in Opp., AMF No. 6.)

Plaintiffs ultimately settled that lawsuit for $200,000 and paid other professionals in that action more than $100,000. (Complaint, ¶¶ 22-23.) Plaintiffs allege that Defendant’s failure to meet the standard of care by negligently recommending less coverage than their previous policy was a substantial factor in causing Plaintiffs to incur those expenses. (Id., ¶¶ 22-23.)

Through its Motion, Defendant seeks summary judgment on the Complaint in its entirety (Code Civ. Proc., § 437c, subd. (a)) or, alternatively, summary adjudication of three issues defined in the Motion. (Id., § 437c, subd. (f).)

Issue No. 1 asserts that all three causes of action are meritless because Plaintiffs waived any right

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they may have had to bring those claims against Defendant.

Issue No. 2 asserts that Plaintiffs had no fiduciary relationship with Defendant, so the second cause of action fails.

Issue No. 3 asserts that all of Plaintiffs’ claims are time-barred.

LEGAL STANDARDS FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

A motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) Denial of summary adjudication is appropriate on the same grounds as denial of summary judgment.

The California Code of Civil Procedure provides that “[a] party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A defendant has met its burden of showing that a cause of action is meritless, if:  the party has shown that one or more elements of the cause of action ... cannot be established, or  that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2) (bullet points added).)

If the defendant meets this burden, then “the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party.” (Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 (Weiss) (citations omitted).)

Summary judgment “is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.” (Eagle Oil & Refining Co. v. Prentice (1942) 19 Cal.2d 553, 556.)

Indeed, issues of fact are to be found, not determined: By an unbroken line of decision in this state since the date of the original enactment of section 437c, the principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns. (Walsh v. Walsh (1941) 18 Cal.2d 439, 441 (Walsh) (citations omitted).)

Further: The purpose of the summary judgment procedure is not to try the issues but merely to discover, through the medium of affidavits, whether there are issues to be tried and whether the parties possess evidence which demands the analysis of trial. (Melamed v. City of Long Beach (1993) 15 Cal.App.4th 70, 76 (Melamed).)

Specifically, California summary judgment law differs from federal law in that the former “continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 (Aguilar).)

Further, the Supreme Court of California has stated: Language in certain decisions purportedly allowing a defendant moving for summary judgment simply to “point[]” out “an absence of evidence to support” an element of the plaintiff’s cause

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of action does not reflect summary judgment law as it has ever stood, and is accordingly disapproved. (Aguilar, supra, 25 Cal.4th at p. 855 (citation omitted).)

The Court must consider all of the evidence and inferences reasonably drawn therefrom “in the light most favorable to” the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

A trial court is justified in granting summary judgment “only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the [proponents] to judgment, and those of the [opponents to the summary judgment motion], liberally construed, show that there was no issue of fact to be tried.” (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417.)

Ultimately, if the Court feels any uncertainty as to whether a grant of summary judgment is proper, “any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.” (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17 (Mateel) (citations omitted).)

LEGAL STANDARDS GOVERNING THIRD-PARTY ATTEMPTS TO OBTAIN SUMMARY JUDGMENT BASED ON A RELEASE AGREEMENT

The Court of Appeal explains that: Release agreements are governed by the generally applicable law of contracts. “A third party should not be permitted to enforce covenants made not for his benefit, but rather for others. He is not a contracting party; his right to performance is predicated on the contracting parties’ intent to benefit him.”

The circumstance that a literal contract interpretation would result in a benefit to the third party is not enough to entitle that party to demand enforcement. The contracting parties must have intended to confer a benefit on the third party. It is not necessary for the third party to be specifically named in the contract, but such a party bears the burden of proving that the promise he seeks to enforce was actually made to him personally or to a class of which he is a member.

In making that determination, the court must read the contract as a whole in light of the circumstances under which it was entered. Thus, to obtain summary judgment on the ground that a general release has discharged him from liability, a third party to the release agreement must affirmatively show that the parties intended to release him. The burden of proof is on the third party, under both contract law and the summary judgment statute.

Because the court must consider the circumstances of the contracting parties’ negotiations to determine whether a third party not named in the release was an intended beneficiary, it will seldom be sufficient for the third party simply to rely on a literal application of the release. “The fact that ... the contract, if carried out to its terms, would inure to the third party’s benefit[,] is insufficient to entitle him or her to demand enforcement.”

“However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.”

“Whether a third party is an intended beneficiary ... to the contract involves construction of the parties’ intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered.”

Here, [the defendant] offered little extrinsic evidence of the contracting parties’ intent, relying instead on a literal interpretation of the terms of the release agreement and the holdings in General Motors and Lama. Indeed, [the defendant] objected to the extrinsic evidence offered

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by the opposing parties, contending the parol evidence rule precluded consideration of extrinsic evidence ... . We are not persuaded.

Parol evidence is admissible to resolve an ambiguity, and ... even an apparently unambiguous general release is properly interpreted in light of the surrounding circumstances. Section 1856, which codifies the parol evidence rule, bars “evidence of any prior agreement or of a contemporaneous oral agreement” that contradicts a final written agreement. But the statute “does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in Section 1860, or to ... otherwise interpret the terms of the agreement ....”

Section 1860 provides: “For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the Judge be placed in the position of those whose language he is to interpret.” (... City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473 [80 Cal.Rptr.2d 329] [extrinsic evidence of objective circumstances is properly consulted to determine mutual intent of contracting parties].)

Our Supreme Court has held that “[i]n determining the meaning of a written contract allegedly made, in part, for the benefit of a third party, evidence of the [surrounding] circumstances and negotiations of the parties in making the contract is both relevant and admissible. And, ‘[i]n the absence of grounds for estoppel, the contracting parties should be allowed to testify as to their actual intention....’ No grounds for estoppel appear in this case. [The defendant] did not claim that he relied on the release to his detriment; he merely sought protection in a literal interpretation of its terms after he was sued by [the plaintiff]. (Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 348-351 (Neverkovec) (multiple citations omitted); see also Vahle v. Barwick (2001) 93 Cal.App.4th 1323, 1329.)

The Neverkovec Court further analyzed the defendant’s use of the parol evidence rule in detail, noting that there, as here, “excluding extrinsic evidence would beg the question of the writing’s purpose, since the very issue to be resolved is whether the parties actually intended to bar all future third party claims when they executed the release.” (Neverkovec, supra, 74 Cal.App.4th at p. 350, fn. 8.)

THE MOTION IS DENIED AS TO ISSUE NO.

1.

Plaintiffs settled the above-described lawsuit over alleged construction defects (the “Construction Lawsuit”) via the “Construction Settlement Agreement,” and the lawsuit brought by their insurer regarding the scope of coverage of their insurance policy (the “Coverage Lawsuit”) via the “Coverage Settlement Agreement.”

Defendant asserts that these two agreements (collectively, the “Settlement Agreements” (Catalanotti Decl., Exhs. 27 & 28)) preclude this action because the release language in each agreement is broad enough to release every claim and entity.

Plaintiffs counter that their intent in signing the Settlement Agreements was to resolve disputes with Mt. Hawley and Mr. Horowitz, not to extinguish a separate professional negligence claim against Defendant, who was not named. (McAtamney Decl., ¶ 6.)

Plaintiffs further argue that Defendant has not met its burden to show that it is a third-party beneficiary of either Settlement Agreement. As discussed above, that burden requires more than showing that the parties were aware the contracts might benefit Defendant; Defendant must show that the contracting parties had a purpose of benefiting Defendant.

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Plaintiffs further assert that even if the release language could be interpreted as Defendant urges, which Plaintiffs deny, that ambiguity would create a triable issue of fact as to the contracting parties’ intent, which cannot be resolved on summary judgment: When two equally plausible interpretations of the language of a contract may be made, as in our case, parol evidence is admissible to aid in interpreting the agreement, thereby presenting a question of fact which precludes summary judgment if the evidence is contradictory. (Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 158 (citations omitted).)

In Reply, Defendant emphasizes that when Plaintiffs executed both Settlement Agreements, Plaintiffs were aware of the facts on which they base their current claims but did not carve those claims out of the release language.

However, the Construction Settlement Agreement provides, “This Release of Claims is only by and between Plaintiff and Kilrea Defendants and their Related Persons and Entities as described and contemplated in this Agreement.” (Catalanotti Decl., p. 251, in Exh. 27.) “Related Persons and Entities” is not defined in that document. These aspects of the release language raise an ambiguity to be resolved by the fact finder as to whether Plaintiffs’ or Defendant’s interpretation of Plaintiffs’ intent in the Construction Settlement Agreement is correct.

Also, the release language of the Coverage Settlement Agreement includes a release by Plaintiffs and Mt. Hawley of “each other, and each other’s past or present managers, officers, directors, shareholders, members, employees, agents, adjusters, ....” (Id., p. 258, in Exh. 28 (emphasis added).) Thus, facially, Plaintiffs released Mt. Hawley’s agents, not their own agents. Either this language does not reach Defendant, or, at a minimum, it raises an ambiguity as to the scope of the release language in the Coverage Settlement Agreement. Triable issues of material fact exist as to the parties’ intent regarding the scope of the asserted release language in the Settlement Agreements.

Defendant also asserts that it could have been joined in the Coverage Lawsuit, in which Plaintiffs sought the same relief as they seek here: indemnification for the costs of defending and settling both lawsuits. (Code Civ. Proc., § 379, subd. (a).) Thus, Defendant is further released under the Coverage Settlement Agreement as a party that could have been joined in that lawsuit.

Plaintiffs argue that Defendant could not have been joined in the Coverage Litigation because their claims in that action differed from the claims in this action. Plaintiffs note that, contrary to Defendant’s apparent understanding of the instant claims, Plaintiffs are not seeking indemnification for the Construction Lawsuit as though Defendant were an insurer. Instead, they seek damages flowing from Defendant’s alleged negligence. Defendant’s argument on this point fails.

Thus, the Complaint survives the Motion as to Issue No.

1.

THE MOTION FOR SUMMARY JUDGMENT IS DENIED.

Because at least the first cause of action survives summary adjudication, the Motion for Summary Judgment is DENIED as well.

THE MOTION IS DENIED AS TO ISSUE NO.

2.

Plaintiffs agree that the existence of a fiduciary duty is a question of law, but then focus on factual questions concerning breach. Plaintiffs raise triable issues of material fact as to breach, causation, and damages, but those points are beyond the scope of Issue No. 2.

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It is undisputed that Defendant was still Plaintiffs’ insurance broker when Plaintiffs asked Defendant for its declaration; Plaintiffs had relied on Defendant in purchasing the insurance that turned out to be inadequate (see Defendant’s Reply to Plaintiffs’ AMF, AMF No. 3), leaving Plaintiffs without coverage for the Construction Lawsuit; and Plaintiffs sought Defendant’s declaration on that precise point.

Defendant asserts that insurance broker-client relationships generally are not fiduciary, even if they are sometimes referred to as such, citing Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145 (Hydro-Mill). Hydro-Mill states that “it is unclear whether a fiduciary relationship exists between an insurance broker and an insured.” (Hydro-Mill, supra, 115 Cal.App.4th at p. 1156.)

The Court of Appeal later recited Hydro-Mill’s uncertainty and its inference that if an insurer is not a fiduciary, then arguably neither is an insurance broker. (Mark Tanner Construction, Inc. v. Hub International Insurance Services, Inc. (2014) 224 Cal.App.4th 574, 585 (Tanner).)

After discussing a line of cases refusing to expand a broker’s duties, the Court of Appeal nonetheless held: From these cases we conclude that, other than when handling an insured’s money, a broker’s duty—whether or not phrased as a fiduciary duty—is no greater than the duty to use reasonable care and diligence in procuring insurance. As one leading treatise has observed: “It is not clear in what respect the ‘fiduciary duty’ owed by an independent insurance agent [broker] differs from the duty of due (reasonable) care. As used in respect to an independent agent, ‘fiduciary duty’ may refer merely to avoidance of conflict of interest, self-dealing, excessive compensation, etc.” (Tanner, supra, 224 Cal.App.4th at p. 586 (citation omitted).)

Thus, while it may remain unclear whether the insurance broker’s duty should be characterized as a “fiduciary duty,” Defendant owed Plaintiffs at least a duty to use reasonable care and diligence, and the authorities recognize that a broker’s duties may include avoiding conflicts of interest and self-dealing. Thus, under the negligence analysis applicable to the first and third causes of action, the element of duty exists.

Under Hydro-Mill and Tanner, Defendant has not established as a matter of law that no fiduciary duty existed under the circumstances presented here. At a minimum, Defendant has not shown entitlement to summary adjudication of Issue No.

2.

Any remaining doubt about the propriety of summary adjudication must be resolved in favor of the opposing party. (Mateel, supra, 115 Cal.App.4th at p. 17.) Thus, the Court finds that Defendant has not carried its burden as to Issue No. 2, and the second cause of action survives the Motion.

THE MOTION IS DENIED AS TO ISSUE NO.

3.

The parties agree that a two-year statute of limitations applies. (Code Civ. Proc., § 339, subd. 1; see Hydro- Mill, supra, 115 Cal.App.4th at pp. 1158-1159.) The parties agree that the statute of limitations begins to run when all elements of a cause of action are complete, including actual, appreciable harm.

Plaintiffs further assert that because Mt. Hawley defended Plaintiffs until at least March 10, 2023, the first appreciable harm occurred on or after that date, when Mt. Hawley advised Plaintiffs that it would no longer fund their defense in the Construction Lawsuit and, shortly thereafter, filed the Coverage Lawsuit against Plaintiffs, forcing them to retain separate counsel and incur attorney’s fees for the first time. (McAtamney Decl., ¶ 7 (portion as to which Objection is overruled).)

Accordingly, because this action was filed on March 5, 2025, it is timely. In support, Plaintiffs cite AMF Nos. 4, 5, and 9, which Defendant disputes. (Reply to Plaintiffs’ Additional Material Facts in Opp., AMF Nos. 4, 5, & 9.)

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As to AMF Nos. 5 and 9, Defendant also improperly objects in the Reply separate statement that they are legal conclusions rather than facts, and refers the Court to its Objections. (Id., AMF Nos. 5 & 9.)

Defendant essentially asserts that Plaintiff McAtamney perjures himself in declaring, “Prior to March 10, 2023, neither I nor Kilrea paid any attorneys’ fees.” (McAtamney Decl., ¶ 4.) Defendant notes that Mt. Hawley’s reservation-of-rights letters were addressed to Plaintiff McAtamney care of attorney Janet Brayer. However, Plaintiffs’ Objections to those letters are sustained on hearsay grounds, infra.

Defendant further asserts that “Plaintiffs’ verified discovery responses identify attorney’s fees for Janet Brayer as recoverable damages. (UMF No. 77.)” (Reply, 13:23-24.) However, there is no UMF No.

77.

Defendant further argues that Plaintiffs cannot manufacture a triable issue of material fact through the McAtamney Declaration, which Defendant contends is inconsistent with Plaintiffs’ discovery responses and the documentary record. While Defendant’s Exhibits 16-19 are inadmissible on hearsay grounds, the undisputed UMF Nos. 21-24 reference Exhibits 21-24 to the Catalanotti Declaration, which are described as showing emails including Ms. Brayer, who appears from those emails to have been Plaintiffs’ counsel. (See, e.g., Catalanotti Decl., p. 135, in Exh. 22.)

It is possible that Plaintiffs had counsel without incurring fees, though Plaintiffs have not explained the mechanism for that. Thus, the Court has before it Plaintiff McAtamney’s declaration under penalty of perjury that Plaintiffs incurred no attorney’s fees before March 10, 2023 (McAtamney Decl., ¶ 4), and evidence tending to support Defendant’s assertion that Plaintiffs had counsel before that date (see, e.g., Catalanotti Decl., p. 135, in Exh. 22). The evidence therefore shows a triable issue of material fact on this point.

Defendant argues in Reply that a claim for professional negligence against an insurance agent accrues when the plaintiff discovers, or through reasonable diligence should have discovered, “the injury and its negligent cause,” citing Hydro-Mill. (Reply, 14:13-14.)

However, Hydro-Mill details the claims process as to the insurance agent and then explicitly states that potential tolling applicable “in an action by an insured against an insurer” (Hydro-Mill, supra, 115 Cal.App.4th at p. 1162), which is not the case here, does not apply to the broker. In doing so, the Court of Appeal specifies that: All of the elements of a cause of action against [the defendant broker]—wrongful conduct, causation, and harm—were satisfied no later than December 9, 1994, when Scottsdale offered a payment that excluded the losses on the leased locations and all extra expenses. [The defendant broker] had agreed to obtain coverage for those items but failed to do so. (Hydro-Mill, supra, 115 Cal.App.4th at p. 1164 (italics retained) (underline added).)

Thus, harm must have occurred for the cause of action to accrue. Defendant’s argument that Plaintiffs’ inference concerning the weight the Court might have given Defendant’s declaration is speculative ignores the principle that, on summary adjudication, the Court draws reasonable inferences against the Motion. Plaintiffs’ inference is reasonable.

Thus, the Complaint survives the Motion as to Issue No.

3.

PLAINTIFFS’ OBJECTIONS IN OPPOSITION

Plaintiffs’ Objections are directed to six exhibits in the Declaration of Peter C. Catalanotti with Compendium of Evidence. The Court rules on them as follows: Objs. Nos. 1-4: SUSTAINED. Objs. Nos. 5-6: OVERRULED.

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Plaintiffs also improperly placed objections in their Separate Statement in Opposition, Etc., in violation of the California Rules of Court. (See Cal. Rules of Court, rules 3.1352, 3.1354(b) [“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion”], 3.1354(c) [“party submitting written objections to evidence must submit with the objections a proposed order”].)

Accordingly, the Court declines to rule on those Objections. (Hodjat v. State Farm Mutual Automobile Insurance Co. (2012) 211 Cal.App.4th 1, 8 [affirming trial court’s refusal to rule on objections made in separate statements and to provide second chance to file objections].) To the extent those objections are duplicative of Plaintiffs’ properly raised Objections, they have been ruled upon nonetheless.

DEFENDANT’S OBJECTIONS IN REPLY

Defendant’s Objections are directed to the Declaration of John P. McAtamney. The Court rules on them as follows: Objs. Nos. 1-2: OVERRULED. Obj. No. 3: SUSTAINED as to, “damages suffered by me and Kilrea as a result of McGovern’s breaches, and”; otherwise, OVERRULED.

Defendant also improperly placed objections in its Reply to Plaintiffs’ Separate Statement in Opposition, Etc., and in its Reply to Plaintiffs’ Additional Material Facts, Etc., in violation of the California Rules of Court. (See Cal. Rules of Court, rules 3.1352, 3.1354(b) [“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion”], 3.1354(c) [“party submitting written objections to evidence must submit with the objections a proposed order”].)

Accordingly, the Court declines to rule on those Objections. (Hodjat v. State Farm Mutual Automobile Insurance Co. (2012) 211 Cal.App.4th 1, 8 [affirming trial court’s refusal to rule on objections made in separate statements and to provide second chance to file objections].) To the extent those objections are duplicative of Defendant’s properly raised Objections, they have been ruled upon nonetheless.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs shall prepare for the Court’s signature a written order consistent with the Court’s ruling, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.

The Court alerts the parties to revised Local Rule 3.403(b)(iv), amended effective January 1, 2024, regarding the wording of proposed orders.