BARRY-DEAL, J., Concurring. I concur with the majority’s conclusion that the trial court erred in granting summary judgment in favor of respon[1462]dent. I agree that triable issues of fact exist whether the efficient proximate cause of appellant’s loss was a covered peril and whether any insured property was damaged. I also agree that, in this case, the insurer may not escape liability based on a policy exclusion which purports to be effective when an excluded event contributes in any way to a loss, even though the efficient proximate cause of the loss is covered. However, because I do not agree that Insurance Code section 530 (hereafter section 530) compels that result in every case regardless of policy language, I concur separately.
This case squarely presents an issue which was left open in the leading case in this area, Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395 [257 Cal.Rptr. 292, 770 P.2d 704]: whether an insurer may, by employing specific and unambiguous language, vary the ordinary rules of causation that apply to property casualty insurance policies. In Garvey, our Supreme Court held the courts should apply a rule of “efficient proximate cause.” (Id., at p. 412.) Under that rule, if a particular covered peril is the efficient proximate cause of a loss, then the loss should be covered; if the efficient proximate cause is excluded, then there should be no coverage. (Id., at pp. 408, 412.) However, Garvey was expressly limited to pre-1983 policy language, and did not decide what effect, if any, insurer attempts to modify that language might have. (Id., at p. 407, fn. 6.) Here, we are asked to decide whether the rule of efficient proximate cause reaffirmed in Garvey survives an insurer’s attempt to substitute a different rule of causation clearly and unambiguously. The majority hold that section 530, as interpreted in Sabella v. Wisler (1963) 59 Cal.2d 21 [27 Cal.Rptr. 689, 377 P.2d 889] and subsequent cases, declares a rule which may not be varied by contract because it expresses the public policy of the state. (Civ. Code, § 3268 [parties to contract may not waive provisions of code in contravention of public policy].)1 I do not agree that section 530 is a legislative expression of mandatory public policy, either as enacted or as interpreted. However, I find that, under well-established rules, an insurer may not simultaneously insure against loss proximately caused by a covered peril, and exclude that same coverage if a different peril contributes to the loss in any way, however remote. I therefore concur in the judgment.
Facts
As the summary of facts in the majority opinion is complete, it is sufficient for my purpose to say that after a fire defoliated the insured [1463]property, heavy rains caused landslides which resulted in damage to insured property. The policies in question insured against “accidental direct physical loss,” excepting those specifically excluded. Among the losses specifically excluded was any loss “which would not have occurred in the absence of . . . [fl] . . . landslide . . . .”2 The trial court gave summary judgment based on its conclusion that the loss was not covered.3 Appellant argues that because an issue of fact exists whether the efficient proximate cause of the loss was fire, a nonexcluded peril, summary judgment was improper. Respondent argues that in light of the clear language excluding losses that would not have occurred absent landslide or other specified events, the ordinary rule of proximate cause has no application, and coverage is excluded whether or not the fire was the efficient proximate cause of the loss.
Discussion
I. Introduction
In the following discussion, I first explain why I cannot agree that section 530 is a legislative mandate which a fortiori nullifies any attempt to draft a contrary rule. In a separate section, I discuss why I conclude that judicially declared policy requires a reversal in this case.
II. Section 530 Is Not Mandatory
Section 530 provides that “[a]n insurer is liable for a loss of which a peril insured against was the proximate cause, although a peril not contemplated by the contract may have been a remote cause of the loss; but [it] is not liable for a loss of which the peril insured against was only a remote cause.” Present section 530 was enacted with the rest of the Insurance Code in 1935. (See Stats. 1935, ch. 145, § 530, p. 510.) As passed, its history is unremarkable. It was a reenactment of former Civil Code section 2626. (Stats. 1935, ch. 145, § 2, p. 496 [sections of Insurance Code substantially the same as former provisions, intended as “restatements and continuations thereof, and not as new enactments”]; Stats. 1935, Appen., p. 2731; and see Civ. Code (1872 ed.) former §2626, p. 430.)
[1464]Former Civil Code section 2626 was in turn enacted in 1872 as a part of the general codification of California law and remained unchanged between its first enactment and its transposition into the Insurance Code in 1935. (Civ. Code, § 23; see Civ. Code (1872 ed.) supra, former § 2626, p. 430; cf. present Ins. Code, § 530.) Between 1872 and 1935, there is no trace of any legislative consideration of its intent or effect. The entire legislative history of section 530 exists in the notes and commentary that appear in connection with the enactment of the 1872 California Civil Code, and its counterpart and predecessor, the Civil Code of the State of New York. Those commentaries reveal that section 530 is the statutory expression of the common law rule of causation in insurance law, that where perils combine to cause a loss, coverage is determined by looking to which of the perils was the proximate cause of the loss, and not to perils which were remote causes.4 (See Raymond & Burch’s Ann. Civ. Code (1st ed. 1872) foil, former § 2626, pp. 160-161 [code comrs.’ ed., noting that former Civ. Code, § 2626 was intended to codify the general and contemporary rule of causation in insurance cases].)
The derivation of former Civil Code section 2626 confirms the opinion of the code commissioners. The statute was taken directly from the Civil Code of the State of New York, and restated section 1431 of that code.5 (See, e.g., Revised Laws of the State of Cal., Civ. Code (1871 ed.) p. 457 [noting origin of then-proposed Cal. Civ. Code, § 2626 as N.Y. Civ. Code, § 1431]; Civ. Code of the State of N.Y. (1865 ed. [“Field Draft”]) supra, fn. 3 foil. § 1431, pp. 421-422; and see Raymond & Burch’s Ann. Civ. Code (1872 ed.) supra, note foil, former § 2626, pp. 160-161.) The notes of the drafters of the New York Civil Code and the California code commissioners reiterate that the New York statute was a legislative expression of the general rule of causation in insurance, that where two or more perils concur to cause a loss, coverage either stands or falls depending on which of the perils was the primary cause of the loss.
Since present section 530 is the direct descendant of the 1865 New York Civil Code section 1431, the most that can be said of the intentions of the [1465]Legislature that adopted that section is that its motive was that common to the 19th-century codification movement as a whole: to restate the principles of common law in a consistent, accessible form, or, in the words of the New York code commissioners, to “[arrange] these rules in a manner which will be approved by the scientific student, while it will help the lawyer and the citizen to an easier if not a better knowledge of the law.” (Code Comrs.’ Final Rep., Civ. Code of the State of N.Y. (1865 ed. [“Field Draft”]) supra, p. vii.)
The question remains, however, whether the common law rule of causation in insurance coverage disputes, restated in the early codes and in present section 530, was or is an embodiment of public policy which overrides specific contract language. A review of contemporary and early cases reveals that at least as it existed at the time the statutes were drafted, it was not. In Mathews v. Howard Ins. Co. (1854) 11 N.Y. 9, one of the principal cases relied on by the drafters of the New York Civil Code, a concurring opinion noted the rule that although “the maxim causa próxima non remota spectatur is the general rule for determining the liability of the underwriter, the parties may, nevertheless, by express stipulation, agree upon another rule of responsibility. [Citation.]” (Id., at p. 25, fn. 3 (cone. opn. of Parker, J.), citing Savage v. The Corn Exchange Fire and Inland Navigation Insurance Co. (1858) 4 Bosw. 1, 19; and see 1 Parsons on Marine Insurance, Excepted Risks and Losses, supra, at pp. 622-623 [noting in discussion of proximate cause that policy exclusions may always be made “at the pleasure of the parties” and must be construed so as to carry into effect the intention of the parties]; St. John v. American Mutual Ins. Co. (1854) 11 N.Y. 516, 519-520 [cited by drafters of predecessors to present Ins. Code, § 532, and holding that an excluded remote cause defeated coverage where loss would not have occurred but for a remote peril]; and see Williamsburgh City Fire Ins. Co. v. Willard (1908) 164 Fed. 404, 408-409 [finding waiver provisions of Civ. Code, § 3268 applicable to causation rule of former Civ. Code, § 2628, now Ins. Code, § 532].) At least as originally drafted, section 530 was an expression of a rule of general law, not a mandatory provision to be read into private contract.
Further, no case interpreting section 530 has ever held it to be more than it was originally intended to be. Although the majority rely on Sabella v. Wisler, supra, 59 Cal.2d 21, neither that case nor any other finds a mandatory provision in section 530. Sabella itself, though silent on the point, depends for its holding on a series of cases which rely on interpretive principles rather than legislative direction. (See Sabella, supra, at pp. 32-33, discussing Brooks v. Metropolitan Life Ins. Co. (1945) 27 Cal.2d 305, 309-310 [163 P.2d 689] [better rule of interpretation is that coverage intended where insured peril is proximate cause of loss]; Hanna v. Interstate B. M. [1466]Acc. Assn. (1919) 41 Cal.App. 308, 310-311 [182 P. 771] [distinguishing cases involving different policy language and applying general rule of causation]; Edgerton & Sons, Inc.v. Minneapolis Fire & Marine Ins. Co. (1955) 142 Conn. 669, 673-674 [116 A.2d 514, 516-517] [interpreting exclusion in favor of insured and applying general rule]; Princess Garment Co. v. Fireman’s Fund Ins. Co. (6th Cir. 1940) 115 F.2d 380, 382-383 (1940 [noting rules of interpretation of insurance contracts and stating that “on such contracts [of insurance] it is assumed that it was the intention of the insurer to indemnify the insured against losses where the cause insured against was the proximate or immediate means or agency causing the loss”].) These cases demonstrate that the rule in Sabella is based on the related ideas that, first, a reasonable insured expects that a loss will be covered if it is proximately caused by a covered peril, even though other remote and excluded causes may concur in producing the loss, and second, to construe the policy to defeat that expectation would be contrary to the purpose of the insurance itself, i.e., provision against economic loss from certain classes of perils. Although I endorse that holding and believe it should be followed here, I do not agree that it is a declaration of a mandatory public policy. Any such declaration must be left to the Legislature. (Cf. Ins. Code, §§ 2071 [mandatory fire insurance form of policy], 11580.1 et seq. [requiring certain provisions to be included in automobile insurance policies].)
Because I do not find that section 530 expresses any mandatory public policy, I do not agree with the reasoning adopted by part A of the majority opinion. However, for the reasons set out in the following section, I concur in the judgment.
III. Policy Interpretation
In the present case, respondent insured appellant’s property against all direct accidental losses save those specifically excluded. Under the rule of Sabella v. Wisler, supra, 59 Cal.2d 21, as restated and reaffirmed in Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d at pages 402-403, it would appear that if an accidental loss to the insured property occurred, and if the efficient proximate cause of that loss was not excluded, there would be coverage. (Cf. Brodkin v. State Farm Fire & Casualty Co. (1989) 217 Cal.App.3d 210, 217-218 [265 Cal.Rptr. 710] [where all asserted efficient proximate causes of loss were excluded, summary judgment for insurer proper].) Here, appellant argues that a triable issue exists whether the efficient proximate cause of the loss was the fire which defoliated her [1467]property or the ensuing landslide.6 Fire is not among the perils excluded from coverage by the policies in question. However, respondent asserts that because the claimed property damage would not have occurred absent the landslide, the loss is excluded even if we assume that the efficient proximate cause of the loss was covered. After careful review, I have concluded that respondent’s position is unsupportable under long-established principles.
It is true, as respondent strongly urges, that subject to legislative regulation, an insurer has the right to select the risks which it will insure and to exclude those that it will not. (See, e.g., Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 432 [296 P.2d 801, 57 A.L.R.2d 914].) If the meaning of the exclusion is unambiguous and does not mislead, “the plain language of the limitation must be respected. [Citations.]” (Ibid.) This rule is followed in a variety of circumstances. (See, e.g., National Ins. Underwriters v. Carter (1976) 17 Cal.3d 380, 384-386 [131 Cal.Rptr. 42, 551 P.2d 362] [where aircraft insurance policy provided in exclusions and on declarations page that policy was effective only if persons specified by declarations were piloting aircraft, no coverage where airplane crashed while piloted by permissive user not so named]; Argonaut Ins. Co. v. Transport Indem. Co. (1972) 6 Cal.3d 496, 508 [99 Cal.Rptr. 617, 492 P.2d 673] [secondary insurer not liable where policy endorsement provided that policy was not applicable if loss was covered by any other policy, primary or secondary]; State Farm Mut. Auto. Ins. Co. v. MacKenzie (1978) 85 Cal.App.3d 727, 732 [149 Cal.Rptr. 747] [no coverage for permissive use of nonowned auto where neither insurance policy nor statute provided for or required such coverage, noting right of insurer to limit coverage where not “ ‘. . . prohibited by public policy or statute. [Citation.]’ [Citations.]”])
Here, the exclusion relied on by the insurer is clear; it will not pay a loss which would not have occurred but for a landslide. Thus, at first glance it seems that we should affirm the judgment of the trial court, since it is obvious that the loss in this case would not have occurred but for a landslide. However, as I discuss below, policy exclusions which are asserted to make otherwise applicable coverage turn on the presence or absence of remote causes have been treated differently than other kinds of exclusions.
In a line of cases beginning at least as long ago as the first judicial interpretation of what is now section 530, California courts have consistently found that where a loss is the efficient proximate result of a covered peril, an insurer may not defeat coverage by discovering a remote and excluded cause somewhere in the chain of causation, even where the policy contains [1468]clear language that would support the insurer’s interpretation. That finding is based on two related principles applicable to all insurance contracts: first, that ’’the policy or its endorsements cannot be so interpreted as to become meaningless, or to withhold coverage which the [layperson] would normally expect from it . . . ,” and second, that “ . . [t]he courts will not sanction a construction of the insurer’s language that will defeat the very purpose or object of the insurance. [Citations.] ....’” (City of Santa Monica v. Royal Indent. Co. (1958) 157 Cal.App.2d 50, 54 [320 P.2d 136].)
I begin with the first California case which construed the predecessor of present section 530, former Civil Code section 2626, Pacific etc. Co. v. Williamsburg (1910) 158 Cal. 367 [111 P. 4]. In Pacific, the insured property was destroyed by fire as a consequence of the 1906 San Francisco earthquake. (Id., at p. 369.) It was undisputed that the fire started in another building as a direct consequence of the earthquake, and then spread from structure to structure, finally destroying the insured property. (Ibid.) The insurer denied coverage based on an exclusion which recited that it would not be liable for “ ‘ “. . . loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or for loss or damage occasioned by or through any . . . earthquake . . . ; or by theft; or by neglect of the insured . . . (Ibid.) The insurer argued that under former Civil Code section 2628 (now Ins. Code, § 532), it had no liability on the policy, because the fire would not have occurred but for the earthquake. (Pacific, supra, at pp. 372-373.) The court7 disagreed, and stated that former Civil Code sections 2626 and 2628 (now Ins. Code, §§ 530, 532) must be read together, and that “ ‘. . . [n]o rule of construction would justify us in holding that the section [now Civ. Code, § 532] broadens the scope of the original exception [i.e., policy exclusion]. The exception was made in the contract of insurance, and must be held to control, as it was the deliberate words of the parties used by them in making the contract. . . .’” (Pacific, supra, at p. 373.) The court went on to reject the insurer’s argument that the existence of an excluded peril in the chain of causation defeated coverage. The court concluded that the insurer’s theory would lead to a holding that if “ ‘. . . a very slight shock of earthquake had upset a lamp and thus set fire to a building, and this building should communicate the fire to an adjoining building, and thence from building to building until the whole city had burned, not a dollar of insurance could be recovered if the policies each contained the clause under discussion. We do not think that either the plaintiff [insured] or the defendant [insurer] ever contemplated making any such contract. It would certainly require the most clear and unambiguous language to justify [1469]any court in placing a construction upon a policy of insurance that would have such result. . . (Id, at p. 372.)
Two principles are at work in Pacific. First, the court emphasizes that its decision is based on the language of the insurance contract, not on any statutory or judicial policy. Second, and more important here, the court employs the general rule that the intentions of the parties govern interpretation of the contract to void arguably clear exclusionary language. Even though the fire in question was indirectly caused by earthquake, the court chose to ignore the language of the contract in favor of the presumed intention of the parties. This method of avoiding the effect of apparently clear language has been duplicated in virtually every California case to consider the question.
In the leading case, Brooks v. Metropolitan Life Ins. Co., supra, 27 Cal.2d 305, the spouse of the insured husband filed suit on an accidental death policy after he died in a fire. (Id., at p. 306.) The evidence showed that the insured was suffering from an incurable cancer and had been confined to his room. (Id., at pp. 307-308.) He was discovered dead after a fire in the room, and there was expert testimony that he had died of his burns. (Id., at p. 309.) The policy insured against death or injury “ ‘. . . caused directly and independently of all other causes by violent and accidental means,’ ” and excluded any loss which was . . caused wholly or partly, directly or indirectly, by disease or mental infirmity or medical or surgical treatment therefor.’” (Id., at p. 306.) The defending insurer argued among other things that because the deceased insured would not have died in the fire had he not been an invalid, the loss was partly caused by sickness and was not payable. (Id., at p. 309.) Rejecting case law to the contrary, the court held that even where policy language in an accidental death policy precluded coverage if the death was caused “ ‘partly’ ” or “ ‘indirectly, by disease or mental infirmity,’ ” a “preexisting disease or infirmity will not relieve the insurer from liability if the accident is the proximate cause of death; and that recovery may be had even though a diseased or infirm condition appears to actually contribute to cause the death if the accident sets in progress the chain of events leading directly to death, or if it is the prime or moving cause. [Citations.]” (Id., at pp. 306, 309-310.)
Brooks's rationale is probably best summed up in Kelly v. Prudential Ins. Co. (1939) 334 Pa. 143 [6 A.2d 55], one of the two cases on which Brooks relies. In Kelly, an accidental death case, the insurer argued it was improper to instruct the jury that a preexisting illness which contributed to death would not bar liability so long as an accident was the proximate cause of death. (Kelly, supra, at pp. 149-150 [6 A.2d at p. 58].) Explaining its decision to the contrary, the court stated that “ ‘ “. . . it is the duty of courts to [1470]give such construction to a policy, if the language used fairly admits, as will make it of some substantial value and carry out the intention expressed therein that liability is incurred where death occurs from accidental injury. . . (Id., at p. 151 [6 A.2d at p. 58].) The policy language in Brooks, specifying that coverage would be defeated if the death was caused “ ‘wholly or partly’ ” by disease, could hardly be clearer, and it is similarly clear that the Brooks court refused to exclude coverage even while admitting that the death had been “ ‘partly’ ” caused by the insured’s preexisting disease. It is significant in this context to note that the authorities which were specifically rejected in Brooks supported a contrary view; that where the policy excluded death caused partly by disease, there would be no coverage unless the accident which killed the insured would have been fatal to a healthy person, or put another way, if the death would not have occurred but for the preexisting disease, there would be no coverage. (Brooks v. Metropolitan Life Ins. Co., supra, 27 Cal.2d at p. 309.) In addition, Brooks relies on discussion of the point in 6 Couch, Cyclopedia of Insurance Law (1930) section 1249, page 4569, in which the author notes that “there is considerable authority to the effect that preexisting disease does not render the exemption clause applicable, even though it concurred with or assisted the injury in causing death. For instance, the existence of a pre-existing disease, or predisposition to disease, does not preclude recovery where the accident is the proximate or efficient cause of death . . .” (fn. omitted), even though the condition or disease may have contributed to the death.
Brooks rejects clear policy language in favor of the general rule that losses proximately caused by covered perils are covered. It stands for the proposition that California courts will resolve in favor of the insured the inherent conflict between insuring language which purports to cover certain perils and excluding language which would defeat that coverage even though a covered peril directly, efficiently, and proximately caused the loss.
Other cases have reached the same result by identical means. (See, e.g., City of Santa Monica v. Royal Indem. Co., supra, 157 Cal.App.2d at p. 54 [application of exclusion would have been contrary to purpose of insurance]; Hanna v. Interstate B. M. Acc. Assn., supra, 41 Cal.App. at pp. 310-311 [accidental death policy]; Berry v. United Com. Travelers (1915) 172 Iowa 429, 432-433 [154 N.W. 598] [finding exclusion ambiguous; cited in Hanna]; Travelers’ Ins. Co. v. Murray (1891) 16 Colo. 296, 305-306 [26 P. 774] [finding exclusion ambiguous; cited in Hanna; and noting that insurance contracts must be construed to “give the insured the benefit of his [or her] contract and consideration for the premium paid . . .”]; Atlanta Accident Asso. v. Alexander (1898) 104 Ga. 709, 712-713 [30 S.E. 939] [finding exclusion ambiguous; cited in Hanna; and noting that contrary construction [1471]of the policy “would make the policy very misleading to the insured . . .”]; and see Annot., Insurance—Coverage—Disease After Accident (1937) 108 A.L.R. 6-37 [collecting cases].)
Brooks is especially significant because it became the principal authority for the holding in Sabella v. Wisler, supra, 59 Cal.2d 21, which our Supreme Court has recently stated to be a model of correct reasoning in this area. (See Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d at p. 404.) In Sabella, the insured’s house was severely damaged when, as a result of the builder’s failure to compact the ground properly, a sewer line broke, saturated the ground, and caused the house to settle. (Sabella, supra, 59 Cal 2d at p. 26.) In the insured’s suit against the insurer, the insurer argued that it was not liable on the policy because the policy excluded any loss “ . . by . . . settling, cracking, shrinkage, or expansion of pavements, foundations, walls, floors, or ceilings ....’” (Ibid., italics omitted.) The insurer also claimed that Insurance Code section 532 (hereafter section 532) freed it from liability, because the damage to the house would not have occurred but for the settlement. (Id., at p. 33.) The court found that the policy clearly excluded losses caused by “ ‘settling,’ ” and that the exclusion could not have been misunderstood by the insureds. (Id., at pp. 30-31.) However, it concluded that because the proximate or “moving efficient” cause was the breaking of the sewer pipe as the result of negligence, coverage therefore existed as a matter of law. (Id., at pp. 31-32.) The court relied on the familiar principle that “ ‘. . . where there is a concurrence of different causes, the efficient cause—the one that sets others in motion—is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.’ ” (Ibid., quoting 6 Couch, Cyclopedia of Insurance Law, supra, at § 1466, pp. 5303-5304.)
In its explanation of the operation of this principle, the Sabella court relied primarily on Brooks, and quoted directly from that portion of Brooks in which the court held that an exclusion based on the concurrence of a remote cause would not prevent coverage where the loss was proximately caused by a covered event. (Sabella, supra, 59 Cal.2d at p. 32, quoting Brooks v. Metropolitan Life Ins. Co., supra, 27 Cal.2d at pp. 309-310.) Although the court did not say in so many words that it would refuse to interpret policy language that would have defeated coverage based on remote causes, its reliance on Brooks, in which that principle was the basis for the holding, is an indication of the court’s direction. Further, the other authority cited by the court supports the conclusion that the court was adopting a rule of construction which was inconsistent with any policy interpretation which would vary the general rule of causation. (See Hanna v. Interstate B. M. Acc. Assn., supra, 41 Cal.App. at pp. 310-311 [holding that where accident was the proximate cause of death, coverage existed, and [1472]citing cases that support the general proposition that policies will not be construed so as to defeat the purpose of the insured in obtaining the insurance]; Edgerton & Sons, Inc. v. Minneapolis Fire & Marine Ins. Co., supra, 142 Conn, at pp. 673-674 [116 A.2d at pp. 516-517] [finding coverage over dissent where exclusion clear and unambiguous].)8
After Sabella, California courts continued to apply the principle expressed in Brooks and Sabella to cases raising the causation question.9 (See, e.g., Premier Ins. Co. v. Welch (1983) 140 Cal.App.3d 720, 725 [189 Cal.Rptr. 657]; Gillis v. Sun Ins. Office, Ltd. (1965) 238 Cal.App.2d 408, 415-420 [47 Cal.Rptr. 868, 25 A.L.R.3d 564]; Sauer v. General Ins. Co. (1964) 225 Cal.App.2d 275, 278-279 [37 Cal.Rptr. 303].)
Unlike other modern cases, in which the question was apparently not raised, the problem under consideration here was directly confronted in Gillis v. Sun Ins. Office, Ltd., supra, 238 Cal.App.2d 408, cited with approval in Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d at page 404.10 In Gillis, the insured operated a floating pontoon dock at Sausalito, [1473]California. (Gillis, supra, at p. 410.) The dock was connected to another dock by a movable gangway. (Ibid.) The insurance policy provided coverage against “ . . direct loss by windstorm [naming other perils], except as hereinafter provided . . (id., at p. 415), but excluded any . . loss caused by, resulting from, contributed to or aggravated by any of the following—(a) Flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not ....”’ (Id., at p. 416.) During a large storm, high winds caused the gangway to rise and fall violently on the floating dock, causing the dock to break up and sink. (Id., at pp. 410-411.) It was conceded that wave action had contributed in some way to the destruction of the dock. (Id., at p. 416.) The insurer argued that because wave action had contributed to the loss in some proportion, the loss was excluded. (Id., at pp. 418-419.) In addition, the insurer specifically argued that the exclusionary language “void[ed] the application of the usual rule of proximate cause, and clearly and unequivocally expressed] the intent that regardless of the initiating or proximate cause of the damage, no recovery can be had if an excluded cause has any part, no matter how small, in causing the damage.” (Id., at p. 419.) The court rejected that position. It noted that although the wind did not by itself destroy the float, it “create[d] a condition that permitted natural forces, which alone may have caused no damage, to effect the damage for which recovery is sought . . . ,” and held that the case was within the efficient proximate cause rule of Sabella. (Gillis, supra, at p. 421.) The court, after some discussion of hypothetical situations, then addressed the insurer’s principal argument. It is useful to quote the passage in full.
“The third category presents the problem of whether the insured is barred whenever the excluded cause contributes to the loss [as the insurer [1474]had argued]. Where the windstorm causes the initial damage and leaves the insured property in such a vulnerable state that a subsequent force of nature causes loss, the insured has generally been permitted to recover. For example, in [citation], the court held that notwithstanding the erroneous finding of the jury that the building was not damaged by snow, an expressly excluded cause of loss, the judgment on the verdict for the insured should be affirmed because windstorm damage which preceded the snow had weakened the roof and was the efficient cause which set the contributing cause in motion. . . . [Citations.] Where the property is picked up by the wind and deposited where it is subjected to further damage by high water, the insurer cannot defeat recovery by resort to a clause which excludes the latter peril. [Citation.] In the case last cited the opinion recites: ‘Common experience and understanding suggest that when personal property of this nature is blown into a body of water that some water damage will result before the property can be recovered. It is fair to assume that under these facts this incidental water damage was within the terms of the policies and contracts of the parties at the time they were made.’ [Citation.] [([] So here common experience and understanding[11] suggest that when personal property of the nature of a floating dock is damaged so that its buoyancy is affected, some water damage will result.” (Gillis v. Sun Ins. Office, Ltd., supra, 238 Cal.App.2d at p. 423.)
Thus, even where the Gillis court was confronted with a policy exclusion which it recognized was designed to vary the traditional rule of causation, it refused to do so. Its refusal was based on the premise that the parties to the insurance contract had agreed and expected that losses caused by wind would be covered, and that their expectation at the time of contracting should not be defeated by the existence of a remote cause acting in concurrence with the covered cause. In this context, the words of another court on the issue of causation bear repeating. “It is known that the wind blows; that in certain latitudes and at a certain temperature ice forms, and later melts when the temperature rises; that water will saturate and soften the soil; that flowing streams carry silt, the amounts whereof vary as the square of the velocity, and when the velocity decreases the silt is deposited on the bed of the stream. None of these things was due to the act of any person, nor can any of them be prevented by any reasonable human means. It is merely nature acting as it always has, and always will act. It seems to us that when a given act is such as to put in force a normal law of nature, which in conjunction with the original act done, produces a harmful result, such result is necessarily a proximate cause [s/c] of the act done.” (United States v. Chicago, B. & Q. R. Co. (8th Cir. 1936) 82 F.2d 131, 137 [106 A.L.R. 942].) This reasoning underlies the rule in Gillis that where the insurer has [1475]issued a policy protecting the insured against the proximate results of a given peril, and a loss results directly from a force of nature set in motion by that peril, there should be coverage, because the loss was that which was contemplated by the parties when they made the contract. Coverage in such a case should not be defeated because the insurer has inserted exclusionary language designed to avoid liability even though an event has occurred which the insured intended to guard against.
Thus, where an insurer attempts to interpose a contributing remote cause as a bar to coverage, Brooks, Sabella, and Gillis look to the expectation of the parties that the insurer must pay when a covered peril is the efficient proximate cause of a loss. They use the general rule that gives effect to those expectations over conflicting contract terms even where, as in the present case, the language relied on by the insurer is clear and unambiguous. At bottom, the rule applied in these cases is a recognition that an exclusion based on remote causation, if given routine effect, could render a policy valueless almost at random. For example, it is conceivable under the policy language at issue that the insurer could claim that its earth movement exclusion would bar recovery if a negligently operated bulldozer leveled the insured property, for clearly, such damage could not occur in the absence of some earth movement.12 It was to avoid such absurd results that the rule of efficient proximate cause was devised.
To the extent that Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d 395, bears on the specific issue at bench, it supports the conclusion that once it is established that the efficient proximate cause of a loss is covered, even a clear exclusion based on remote causation will not be given effect. First, Garvey expressly validates the holdings in Brooks, Sabella, Gillis, and similar cases. (Garvey, supra, at p. 404.) Second, like those cases, the keystone of Garvey's analysis is “the reasonable expectations of the insurer and the insured . . . .” (Id., at p. 408.) Though Garvey's focus was on the reasonable expectation of the insurer that it would only be held liable where a covered peril was the efficient proximate cause of the loss, it follows from that premise that it is equally reasonable for the insured to expect that, under the same circumstances, coverage would exist even though an excluded event might have contributed to the loss. (See ibid.) Thus, I conclude that Garvey is consistent with the analysis I adopt here.
[1476] Conclusion
The principle most fundamental to the interpretation of insurance policies is that which focuses on the expectations of the parties to the contract, since all insurance is at bottom an attempt to provide against unknown future events. No reasonable person would pay for insurance against some future peril if it were possible for the insurer to avoid liability by discovering an excluded peril somewhere in the chain of causation. As one court pointed out, a policy interpretation which would allow that result would be “in direct contradiction of the terms and purpose of the insurance . . . . [ft] ... To say that such was the intent of the defendant company in executing the policy would be to charge it with fraud.” (Moore v. Insurance Co. (1912) 158 N.C. 305, 306-3070 [73 S.E. 1002-1003] [rejecting insurer’s attempt to defeat accidental injury coverage where coverage excluded if disability resulted “ ‘wholly or in part’ ” from paralysis, and the insured was paralyzed in a train wreck].) I would therefore hold that where an insurer chooses to insure against the direct and proximate results of a certain peril, it may not rely on the concurrence of an excluded cause to deny coverage. I reach this conclusion based on the inherent inconsistency between policy language which clearly is intended to protect against certain perils, and language which would defeat coverage even though those same perils have directly resulted in a loss. In such a case, an exclusion which relies on a remote cause must give way to the dominant purpose of the insurance, in line with the reasonable expectations of the insured that he or she will be protected against loss, and those of the insurer, that upon the occurrence of the anticipated event, it will be liable on its policy.
In the present case, the insurer has chosen to provide against all risks of physical loss save those excluded. In this review on appeal from summary judgment, I join the finding of the majority that a triable issue of fact exists whether the efficient proximate cause of this loss was fire, a nonexcluded risk, or landslide, an excluded risk.13 It would be unfair to the insured, and against the reasonable expectation of the insurer, to find as a matter of law that even though a covered peril was the efficient proximate cause of the loss, no coverage exists because an excluded peril may have contributed in some way, however slight, to the loss.
For the above reasons, I concur in the judgment.
Respondent’s petition for review by the Supreme Court was denied June 21, 1990.
The majority apparently deny that their reading of section 530 is a finding of public policy. (Majority opn., ante, at p. 1458.) However, by finding that section 530 is mandatory and will be read into every policy of insurance (id., at pp. 1456-1457), the majority necessarily make that finding. (Cf. Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 648-649 [39 Cal.Rptr. 731, 394 P.2d 571] [noting public policy expressed in Ins. Code, § 533 and Civ. Code, § 1668].) If the section does not express public policy, then it cannot be mandatory. (See Civ. Code, § 3268.)
Although this case involves claims under five separate policies, the language I have extracted is typical of all of them.
In parts B and C of the majority opinion, the majority conclude that triable issues of fact exist whether (1) the fire was the efficient proximate cause of the loss, and (2) whether there was any damage to insured property. I agree with the majority analysis on these points, and therefore discuss only the issue decided in part A of the majority opinion, whether we should give effect to the landslide exclusion.
This principle is of ancient origin. The maxim is expressed in many of the early insurance textbooks in the Latin motto, “causa próxima non remota spectatur. ” (See, e.g., 1 Parsons on Marine Insurance (1868) Excepted Risks and Losses, pp. 621-623.) It apparently first surfaced in the collection of legal maxims published in 1630 by Sir Francis Bacon. (See Hogan & Schwartz, On Bacon’s “Rules and Maximes” of the Common Law (1983) 76 Law Library J. 48, 76; Black’s Law Diet. (5th ed. 1979) p. 706, col. 1.) Its history before that is apparently unknown. (Hogan & Schwartz, supra, at p. 52, fn. 25 and accompanying text.)
New York Civil Code section 1431, as submitted to the New York Legislature, read: “An insurer is liable for a loss of which a peril insured against was the proximate cause; although a peril not contemplated by the contract may have been a remote cause of the loss; but [it] is not liable for a loss of which the peril insured against was only a remote cause.” (Civ. Code of the State of N.Y. (1865 ed. [“Field Draft’’]) § 1431, p. 421, fns. omitted.) As can be seen, this statute is identical to former California Civil Code section 2626 and present Insurance Code section 530.
For purposes of this appeal, I assume that there was some damage to insured property, though I note that to the extent that the claimed damage was a diminution in the value of the land itself, the policies do not appear to provide coverage.
In Pacific, our Supreme Court adopted the opinion of the Court of Appeal. The language of the opinion is almost entirely that of the lower appellate court.
Sabella also reinterpreted section 532, with the effect of nullifying that section’s literal command that no coverage would exist where a loss would not have occurred but for the concurrence of an excluded peril. (Sabella v. Wisler, supra, 59 Cal.2d at pp. 33-34.) The discussion considers whether section 532, a fortiori, barred coverage, and concludes that it does not. Though the court’s interpretation of section 532 does not bear directly on this case, it is significant that the Supreme Court found that section 532 should apply only where the efficient proximate cause of a loss is excluded. This holding is in sharp contrast to that in earlier cases, which acknowledged the effect of the predecessor of section 532, but avoided its application by ruling that specific policy exclusions controlled their analysis. (See Pacific etc. Co. v. Williamsburg, supra, 158 Cal. at pp. 372-373 [policy exception controlled over statutory rule]; Williamsburgh City Fire Ins. Co. v. Willard, supra, 164 Fed. at pp. 408-409 [provisions of former Civ. Code, § 2628, now Ins. Code, § 532, waived by specific policy provisions].) Sabella abandoned this analysis in favor of an interpretation which effectively transformed section 532 into a restatement of section 530. (Sabella, supra, at p. 33 [rejecting insurer’s argument that “where an excepted peril operate[s] to any extent in the chain of causation so that the resulting harm would not have occurred ‘but for’ the excepted peril’s operation, the insurer [is] exempt even though an insured peril was the proximate cause of the loss”].) This specific rejection of the rule of causation expressed in section 532 reinforces the conclusion that the holding of Sabella, like that in Brooks, is inimical to any rule of causation other than that of “efficient cause.” (Sabella, supra, at p. 32.)
I note that, like the majority, at least one jurisdiction has interpreted Sabella as an expression of a general policy that all references to causation in insurance policies will be interpreted as meaning efficient and proximate causes. (See Safeco Ins. Co. of Amer. v. Hirschmann (1989) 112 Wn.2d 621, 624-631 [773 P.2d 413, 414-417] [refusing to apply different rule of causation expressed in specific policy language]; Villella v. PEMCO (1986) 106 Wn.2d 806, 814-819 [725 P.2d 957, 961-964] [citing Sabella]; Graham v. PEMCO (1983) 98 Wn.2d 533, 537-539 [656 P.2d 1077, 1080-1081].) In the Washington court’s view, exclusionary language would only be effective if the excluded peril was the efficient proximate cause of loss; if such a peril was covered, there would be coverage. (Hirschmann, supra, at p. 627 [773 P.2d at pp. 415-416].)
Sauer v. General Ins. Co., supra, 225 Cal.App.2d 275, relied on by the majority and cited with approval in Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d at page 404, is at [1473]best weak authority for any side of the present controversy. In Sauer, a leaking pipe saturated the ground under the insured’s house, which caused the house to settle, in turn resulting in damage to the structure. (Sauer, supra, at p. 276.) The policy insured against . . all direct loss . . . caused by: . . . Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating or air conditioning system . . .’” (ibid.), but excluded from coverage any loss . . caused by, resulting from, contributed to, or aggravated by . . .’ ” earth movement, water below the surface of the ground, or settlement (id., at p. 277). Predictably, the insurer claimed that the exclusions relieved it of liability for the loss. (Ibid.) The court, quoting extensively from Sabella, found that there was coverage because the “efficient proximate cause” of the loss was the leaking of the water pipe, a covered peril. (Sauer, supra, at p. 278.) The court did not discuss the effect of the exclusionary language, other than to note its similarity to that of the policy considered in Sabella. (Sauer, supra, at pp. 277-278.) The lack of any discussion makes interpretation of its holding difficult, because it is not clear from the opinion whether the insurer argued only that the efficient proximate cause of the loss was not the leaking pipe, or that the loss was not payable because an excluded remote cause had contributed to the loss. Under these circumstances, Sauer cannot be taken as a clear holding on either issue.
Not, it is critical to note, the actual policy language itself.
I do not find State Farm Fire and Cas. Co. v. Martin (9th Cir. 1989) 872 F.2d 319 persuasive. In Martin, the court affirmed that part of a lower court opinion which held that nothing in section 530 prevented an insurer from substituting a different rule by contract. (Id., at p. 321.) As so narrowly stated, Martin is correct. However, Martin fails to consider or mention the effect of the rules of construction applied in the cases cited in this opinion. I therefore disagree with Martin to the extent that it can be read to hold that variation of the rules of causation will be treated like any other exclusionary language.
I also concur with that part of the majority opinion that finds that a triable issue of fact exists whether any loss was suffered by insured property, though I note that the extent of that loss appears questionable. (See fns. 3 and 6, ante.)