Firco, Inc. v. Fireman's Fund Insurance

VAN DYKE, P. J.

This is an appeal from a declaratory judgment entered in an action brought by plaintiffs, as assured, against Fireman’s Fund Insurance Company, as insurer. The judgment being adverse to plaintiffs, they appeal.

Respondent issued sequential public liability policies designated as “Logger’s General Comprehensive Coverage” (hereinafter called “the policy”), containing the following insuring agreements:

“. . . To pay on behalf of the assured all sums which the assured shall become legally obligated to pay as damages because of injury to or destruction of property of others, . . . arising out of an occurrence directly connected with the logging operations of the assured or other operations of the assured incidental to such logging operations including but not limited to:

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“2. Damage to or destruction of timber lands and/or standing timber and/or felled and/or bucked timber, the property of others. ’ ’

The policy further provided:

“7. Defense and Appeal : The company shall:

“ (A) Defend in the name of the assured any claim or suit in excess of the

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deductible limits ’ brought against the assured, even though groundless, false or fraudulent, to recover damages on account of such alleged property damage; ...”

After the issuance of the policy an action was begun in the Superior Court for the County of Humboldt by Pacific Lumber Company, a corporation, which we will refer to as the Humboldt action, charging that plaintiffs herein, the assured under said policy, had entered upon the lands of the plaintiff and maliciously, wantonly and without leave had cut down and removed 207,480 feet of redwood trees and 263,020 feet of douglas fir to the plaintiffs’ damage in the sum of $10,547.65. The prayer was for treble damages. In this action plaintiffs, appellants here, charged, and it was admitted, that when process in the Humboldt action was served upon them they demanded of respondent that it furnish a defense to said Humboldt action, that respondent refused to do so, and that by reason of said refusal appellants would be required to retain counsel to defend themselves in the Humboldt action and might be required ultimately to pay a judgment. It was further alleged that an actual controversy existed between the parties in that appellants contended and respondent denied that the policy obligated respondent to furnish a defense to the Humboldt action.