WOODS (Fred), J., Dissenting. Contrary to the majority opinion, I do not view this appeal as presenting an issue of first impression. For decades, courts, including those in California, have consistently held that insurance contracts are subject to the ordinary rules of interpretation. (See e.g., Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 [10 Cal.Rptr.2d 538, 833 P.2d 545].) If contractual language is clear, it governs without regard to the insured’s subjective understanding about the terms of coverage. (Id.., at p. 1265; Bettis Rubber Co. v. Kleaver (1951) 104 Cal.App.2d 821 [233 P.2d 82].)
The Home Insurance Company (Home) policy in this case clearly and unambiguously provides that regardless of the number of years a policy is renewed, “no Limit of Insurance cumulates from year to year.”
Accordingly, I conclude that the language of the policy is imperative and, for the reasons hereafter stated, I would affirm the judgment in favor of Home.
While I do not discern any relevant factual dispute in the record, for continuity in reading the dissent, I restate the facts in different format from that used in the majority opinion.
[1486]This action involves the terms of coverage of a comprehensive general liability insurance policy issued by insurer Home to insured A.B.S., Policy No. BPR-54116 (the Policy), which was effective April 4, 1991, through April 4, 1992, and contains a coverage limit of $100,000 for acts of employee dishonesty, with a $1,000 deductible.
The Policy served as a renewal of Policy No. BPRF 540889, which contained an effective policy period of April 4, 1990, through April 4, 1991. Policy No. BPRF 540889 served as a renewal of previous policy, Policy No. BPRF 404908, which contained an effective policy period of April 4, 1989, through April 4, 1990.
On May 21, 1991, A.B.S. Clothing Collection, Inc., presented a claim on the Policy by submitting an original property loss notice to Home. A.B.S. subsequently augmented its claim by filing a more detailed formal proof of loss, dated June 3, 1991. Therein, A.B.S. claimed that on May 20, 1991, A.B.S. had discovered a loss based upon employee dishonesty of A.B.S. employees Thomas Gallo, vice-president of finance, and Cassandra Hayes, assistant bookkeeper. A.B.S.’s proof of loss described the manner of theft, specifically indicating that as a result of the dishonest actions of Gallo and Hayes, petty cash funds had been drawn on the A.B.S. bank account aggregating to the sum of at least $1.4 million over a three-year period, between July 1988 and May 1991.
A.B.S. claims that its investigation revealed that it sustained a loss based upon the dishonest acts of Gallo and Hayes as follows:
April 4, 1988 through April 3, 1989 $100,692.27
April 4, 1989 through April 3, 1990 $557,636.97
April 4, 1990 through April 3, 1991 $779,388.45
April 4, 1991 through April 3, 1992 $ 78,181.62
A.B.S.’s present claim now seeks cumulative recovery for the full Policy limits for each year the Policy was in effect, namely April 4, 1991, to April 3, 1992, April 4, 1990, to April 3, 1991, and April 4, 1989, to April 3, 1990, as well as coverage for the period of April 4, 1988, to April 3, 1989. During the period of April 4, 1988, to April 3, 1989, the Home Policy had not yet been issued. During April 4, 1988, to April 3, 1989, A.B.S. was insured by USF&G Policy No. IMP 07843183701 and was covered for embezzlement in the sum of $100,000.
[1487]Home acknowledged the validity of A.B.S.’s loss and responded by issuing a draft in the amount of $100,000—the policy limit. However, pursuant to the provisions of paragraph 10 of the Policy in effect during the discovery of the loss, Home indicated by way of a letter of October 8, 1991, that it declined payment to A.B.S. of any additional amounts in excess of the $100,000 policy limit. Home maintained that its total liability for the claimed loss did not exceed the $100,000 already distributed to A.B.S. The noncumulative provision of the Policy provides via paragraph 10, that: “Regardless of the number of years this insurance remains in force or the number of premiums paid, no Limit of Insurance cumulates from year to year or period to period.”
Home maintained that it met its obligation to indemnify A.B.S. when it issued its draft for $100,000.
A.B.S. filed its complaint on May 18, 1992, against Home for declaratory relief and tortious breach of insurance contract. Home responded by way of a demurrer which was sustained with leave to amend.
Thereafter, A.B.S. filed a first amended complaint seeking declaratory relief and alleging tortious breach of insurance contract and breach of contract. Home again responded by way of demurrer which was sustained without leave to amend as to the declaratory relief cause of action. The operative pleading seeks recovery for breach of contract and tortious breach of insurance contract as against Home. Thereafter, Home answered the first amended complaint.
On January 28, 1993, Home filed and served its motion for summary judgment or, in the alternative, motion for summary adjudication of issues.
On March 18, 1993, A.B.S. filed its opposition to Home’s motion. The motion was heard on April 2, 1993. The minute order issued by the trial court on April 2, 1993, provides that: “The Motion of Defendant for Summary Judgment is granted. Defendant’s Motion for Summary Adjudication is Ordered placed Off Calendar as being moot. There is no ambiguity in the contract nor has Plaintiff attempted to suggest any ambiguity. There is no triable issue of fact. The contract has a limit of $100,000.00 and is not cumulative.”
The trial court filed its “Order Granting Summary Judgment For Defendant” on June 25, 1993, stating therein, among other things, the following reasons for its order:
1. The undisputed facts show that Home did not breach the Policy issued in favor of A.B.S.
[14882]. The undisputed facts show that Home did not breach the covenant of good faith and fair dealing.
3. The $278,181.62 sought by plaintiff’s first amended complaint is a claim clearly excluded from Policy pursuant to the noncumulative provision.
4. There is no ambiguity in the Policy, nor has plaintiff in its papers suggested any ambiguity.
5. Mr. Taft’s understanding of the Policy terms is irrelevant.
6. The Policy issued by Home to A.B.S. has a limit of $100,000 and is not cumulative.
7. There exists no triable issue of material fact.
Thereafter A.B.S. filed this timely appeal.
A Court May Not Read an Ambiguity Into the Plain Language of a Policy in Order to Provide Coverage.
A.B.S. is making and the majority has succumbed to what is tantamount to an improper request of this court to search for an ambiguity when the plain meaning of the Policy is quite clear. When interpreting policy language, the court is to give policy terms their plain, ordinary and popular meaning. Where the language of an agreement between the parties is clear and unambiguous, a court is not authorized to use canons of construction but is obliged to enforce the agreement in accordance with its unmistakable terms. California law clearly mandates that courts may not rewrite insurance contracts or force conclusions to exact liability where none was contemplated. (See, e.g., Hackethal v. National Casualty Co. (1987) 189 Cal.App.3d 1102 [234 Cal.Rptr. 853]; State Farm Mut. Auto. Ins. Co. v. Crane (1990) 217 Cal.App.3d 1127 [266 Cal.Rptr. 422].)
As noted by the California Supreme Court: “While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply. [Citation.] The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs.” (Italics added.) (Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 1264.) Similarly, the Ninth Circuit has persuasively stated that: “ ‘[a] claim of ambiguity cannot be based on a strained interpretation of the terms of a policy.’ [Citation.] Further, ‘[a] court [should not] search for an ambiguity [1489]when the meaning of the policy is clear.’ ” (Mitsui Mfrs. Bank v. Federal Ins. Co. (9th Cir. 1986) 795 F.2d 827, 829-830.)
Even the authority cited by A.B.S. in its opening brief supports this position. The court in Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 912 [226 Cal.Rptr. 558, 718 P.2d 920] stated that “[i]t is also well established, however, that [the rule of construction that ambiguities be resolved in favor of an insured] is applicable only when the policy language is found to be unclear.” (Italics added.) The Producers court went on to find that the insured’s interpretation of the policy was erroneous and unreasonable. (Id., at pp. 913-915.)
It is further significant to note that other jurisdictions examining the impact of noncumulative policy provisions similar to the one at issue herein have likewise rejected A.B.S.’s technique of attempting to rely upon the rules of construction in the absence of a showing of inherent policy ambiguity. In Santa Fe General Office Credit Union v. Gilberts (1973) 12 Ill.App.3d 693 [299 N.E.2d 65, 74], the court reasoned that “since the language of the agreement between the parties is similarly clear and unambiguous, we are not authorized to use canons of construction . . . but we are obliged to enforce the agreement in accordance with its unmistakable terms.”
In the Kansas decision heavily relied upon by A.B.S., Penalosa Co-op v. Farmland Mut. Ins. (1990) 14 Kan.App.2d 321 [789 P.2d 1196, 1198], the court explicitly stated that “[i]f there is no uncertainty about the meaning of the policy, it will be enforced as written. ...[*]□ [R]ules of construction ... do not apply unless the court first determines that the policy is ambiguous.” (Italics added.)
An insured’s subjective understanding of the terms of a policy at the time of formation of a contract is irrelevant unless (1) the policy language at issue is ambiguous; and (2) the insured’s understanding is objectively reasonable. (Bank of the West v. Superior Court, supra, 2 Cal.4th at pp. 1264-1265.)
Accordingly, before A.B.S. may properly ask that this court consider its subjective understanding, A.B.S. must overcome its burden to prove that the Policy language of the noncumulative provision is ambiguous. In my opinion, A.B.S. has not and cannot meet this burden.
The Noncumulative Liability Portion of the Policy Clearly and Unambiguously Provides That Home Shall Not Be Held Cumulatively Liable.
Section 10, the noncumulative liability portion of the Policy, plainly and unambiguously provides that: “Regardless of the number of years this [1490]insurance remains in force or the number of premiums paid, no Limit of Insurance cumulates from year to year or period to period.”
Standard noncumulative liability provisions have been consistently upheld as imposing effective limitations on an insurer’s liability upon a policy’s renewal. Illustrative is the case of Columbia Hospital v. United States Fidelity & G. Co. (D.C. Cir. 1951) 188 F.2d 654 [88 App.D.C. 251], which involved facts similar to the case at issue. Therein, an employer suffered losses from a series of embezzlements by a named employee, as in the case at bar. The aggregate sum of these embezzlements exceeded the amount of the bond. The Columbia Hospital bond contained a non-cumulative term providing that the “ ‘payment of [annual] premiums [during such term] shall not render the amount of this bond cumulative from year to year.’ ” (Id., at p. 657.) The employer adopted A.B.S.’s current stance, contending that each renewal constituted a new bond. The surety asserted Home’s current position: that its total liability was limited to the original amount of the bond. The trial court rejected the employer’s argument and held for the surety.
The United States Court of Appeal for the District of Columbia held that where there is language in a bond or its attachments which mitigates against the finding of cumulative liability, the liability is limited in the aggregate to the amount stated in the bond. (188 F.2d at p. 657; see also Brulatour v. Aetna Casualty & Surety Co. (2d Cir. 1936) 80 F.2d 834, 836; Hack v. American Surety Co. of New York (7 th Cir. 1938) 96 F.2d 939.)
While A.B.S. has apparently persuaded the majority that the Columbia Hospital court rested its decision on the fact that the policy did not have a termination date, a review of the opinion reveals otherwise. While a continuing term was indeed a factor, it was not the sole or overriding factor. (See e.g., Columbia Hospital v. United States Fidelity & G. Co., supra, 188 F.2d 654, 658.)
Similarly in Santa Fe General Office Credit Union v. Gilberts, supra, 299 N.E.2d 65, 74, the court found a noncumulation clause was enforceable, clear and unambiguous. The bond at issue in Santa Fe, contained the following noncumulative provision: “ ‘Regardless of the number of years this bond shall continue in force and the number of premiums which shall be payable or paid, the liability of the Underwriter under this bond with respect to any loss or losses specified in the Provided clause of Section 6 of this bond shall not be cumulative in amounts from year to year or from period to period.’ ” (Id., at pp. 69-70.)
Although the insured in Santa Fe asserted that the bond contained ambiguities which should be resolved in the insured’s favor, the court disagreed. [1491]The court instead found that the noncumulative provision, when read in conjunction with the entire bond, was “clear and unambiguous and impels forcefully to the conclusion that the liability of the surety shall not be cumulative from year to year or from period to period irrespective of the total amount of the employer’s losses." (299 N.E.2d at p. 74.) The court reasoned that at the time the bond was issued, and again each time the policy was renewed, the insured had the option of purchasing cumulative coverage, were he then willing to pay the additional premium. (Id., at pp. 71-72.)
As with the Columbia Hospital decision, A.B.S. wrongly implies that the Santa Fe General Office Credit Union court rested its decision upon the continuous nature of the policy. Clearly, while the court took this aspect into consideration, it was not the sole or deciding factor. The noncumulative language of the bond was an integral part of the decision of that court. (299 N.E.2d at pp. 72-75.)
More recently in the case of State ex rel. Guste v. Aetna Cas. & Sur. Co. (La.Ct.App. 1982) 417 So.2d 404, 406; affd. (La. 1983) 429 So.2d 106, the court again found a noncumulation clause to be unambiguous, noting that: “[A] careful review of the national jurisprudence reveals that where the terms of a fidelity bond, taken as a whole, indicate an intention that the original bond shall be continued for a new period or periods due to the payment of a consideration, the contract is a continuous one and the extent of liability is to be determined by the provisions of the original bond.” (Italics added.)
Moreover, in affirming Guste, the Supreme Court of Louisiana upheld that same noncumulative provision and stated: “ ‘Were there any ambiguity in the language, a construction imposing cumulative liability might have some basis. But, where the language is clear, in the absence of misrepresentation, the courts are not free to rewrite a commercial contract entered into at arm’s length by fully competent parties. We cannot give the insured a new bond, different from the one bought and paid for, and carrying greatly extended coverage. Perhaps such litigation as the instant case will serve as an admonition to purchasers of insurance to read their contracts carefully and to seek expert advice with regard to the scope of coverage.’ ” (State ex rel. Guste v. Aetna Cas. & Sur. Co., supra, 429 So.2d 106, 111.)
Finally, in a recent decision on this issue, Kavaney Realtor v. Travelers Ins. (N.D. 1993) 501 N.W.2d 335, the court again upheld a similar noncumulative provision.
The Kavaney court found that Travelers’ noncumulative provision was unambiguous. That provision, which is virtually identical to the one at bar, [1492]provided as follows: “ ‘ “Regardless of the number of years this form shall be in force, the Traveler’s total liability shall not be cumulative.” ’ ” (501 N.W.2d at p. 340.) The appellate court agreed with the trial court’s finding that Columbia Hospital, discussed at length above, was the correct position and that the provision clearly limited liability to a single period limit.
Thus, courts have consistently upheld noncumulative provisions which are clear and unambiguous, such as the one set forth in the Policy at issue herein. While A.B.S. cites to case authority for the proposition that the noncumulation clause is subject to an alternative construction, those cases, in my opinion, are clearly distinguishable from the facts presented in this appeal as hereafter discussed.
A.B.S. Relies Upon Case Authorities That Are Clearly Distinguishable.
The authorities relied upon by A.B.S. for its argument that at least three other courts have agreed with its interpretation of the noncumulative provision are inapposite to the issues herein. Notwithstanding the fact that numerous courts have reached a different result than these three courts, the facts presented by the three cases cited for support by A.B.S. involved special circumstances, such as ambiguities in the noncumulative provision, ambiguities elsewhere in the policy or specific conduct on behalf of the insured which required a different result.
In Penalosa Co-Op v. Farmland Mut. Ins., supra, 789 P.2d 1196, although the court determined that an insured was entitled to cumulative coverage, the court agreed that the question was “close” and the construction “strained” in order to find coverage. Significantly, the decision was based upon a finding of ambiguities elsewhere in the policy. Specifically, the court had difficulty with the Penalosa policy’s definition of the term “occurrence.” Penalosa is readily distinguishable as I would find no such ambiguities are present in the instant Home Policy.
Penalosa involved an insured’s claim to recover funds based upon embezzlements committed by the insured’s general manager during two separate policy periods. The insurance policy in Penalosa included a standard noncumulation provision similar to the noncumulation provision present in the A.B.S. policy. The policy also contained a standard limit-per-occurrence section, providing: “ ‘Employee Dishonesty . . . [U . . . [TO a. Our liability for loss in any one occurrence shall not exceed the amount stated in the declarations for that peril.’ ” (789 P.2d at p. 1199.) While the Penalosa court held in favor of the insured, the court’s decision did not hinge upon a finding that a provision similar to that of paragraph 10 of the Home Policy was [1493]ambiguous. Instead, the court relied upon ambiguities which were specific to the occurrence clause contained in the policy to support a finding of coverage.
Specifically, the court found that the policy’s ambiguities arose out of its problematic definition of the term “occurrence,” which stated: “ ‘Dishonest or fraudulent acts or a series of similar or related acts of any employee acting alone or in collusion with others during the policy period shall be deemed to be one occurrence for applying the limit of liability.’ ” (789 P.2d at p. 1199.)
The court held that, while the insurer undoubtedly meant to limit its liability for any losses caused by a single dishonest employee to $100,000, the policy provision defining an “occurrence” as related acts during the policy period was ambiguous as to the scope of coverage. (789 P.2d at p. 1200.) Plaintiff argued that since the policy “defines an ‘occurrence’ as related acts during the policy period, related acts occurring during two policy periods cannot constitute a single occurrence.” (Id., at p. 1199.) After reading the entire policy, including both the noncumulative liability provision and the policy’s definition of “occurrence,” the court felt that it was possible one might expect that acts of embezzlement in two separate policy periods would constitute two separate occurrences, thereby entitling the insured to recover policy limits for each policy period. (Id., at p. 1200.) It is significant to note that while the court construed the policy in favor of the insured, it conceded that “such a construction may be strained.” (Ibid.)
The instant case is easily distinguishable from Penalosa. The policy issued to A.B.S. defines the term “occurrence” as “all loss caused by each ‘employee’, whether the result of a single act or series of acts.” The Policy’s definition does not limit each “occurrence” to acts occurring within the scope of a single policy “period” or even attempt to define an “occurrence” within any boundaries of time. Instead, the Policy’s definition of the term “occurrence” applies to all losses caused by an employee or group of employees, regardless of the time (or “period”) within which the losses are actually suffered. In fact, it almost seems to this dissenting justice that Home had constructed this provision with the Penalosa court’s ruling in mind.1
With respect to the second decision cited by A.B.S. entitled City of Miami Springs v. Travelers Indem. Co. (Fla.Dist.Ct.App. 1978) 365 So.2d 1030, the [1494]appellate court never reached the merits of the noncumulative clause. In that case, the court was concerned with whether or not the appellant had sufficiently pled a cause of action after the trial court granted respondent’s motion to dismiss the complaint for failure to state a cause of action. The Miami Springs court simply found as follows: “We hold that [the appellant] pleaded a good cause of action . . . .” The matter was ordered returned to the trial court for further proceedings. (Id.., at p. 1032.)
With respect to Great American Indemnity Co. v. State (Tex.Civ.App. 1950) 229 S.W.2d 850, that court rested its decision in favor of the insured on the fact that certain continuation certificates created separate liabilities for each successive period. Since each renewal or continuation certificate contained the phrase, “ ‘the liability of the Great American Indemnity Company shall under no circumstances be cumulative, and its liability shall in no event exceed the amount of the bond described above,’ ” the court reasoned that the language was limited to each successive policy. (Id., at pp. 852-853.) The court made no findings with respect to ambiguities inherent to noncumulative provisions such as the one at issue herein. No such certificates were issued by Home, and the applicable provision in Home’s Policy is entirely different than the provision considered by the court in Great American.
The majority’s reliance on Cincinnati Ins. v. Hopkins Sporting Goods (Iowa 1994) 522 N.W.2d 837 for the proposition that the noncumulation clause is nearly identical to the one under scrutiny in this case is accurate as far as the analysis goes. However, a careful reading of Cincinnati reveals that another provision in the policy of insurance, just as instrumental in the court’s reasoning, was the clause dealing with provision C entitled “Loss Under Prior Bond or Policy.” That clause stated: “If the coverage of this endorsement is substituted for any prior bond or policy of insurance carried by the Insured . . . , which prior bond or policy is terminated, canceled, or allowed to expire as of the time of such substitution, the Company agrees that this endorsement applies to loss which is discovered as provided in Section 1 of the conditions and limitations and which would have been recoverable by the insured . . . under such prior bond or policy except for the fact that the time within which to discover loss thereunder had expired; provided: (1) the insurance under this General Agreement C shall be a part of and not in addition to the amount of insurance afforded by this endorsement. . . .”
The Cincinnati court appears to accentuate the importance of the language of provision C in finding an ambiguity and thereby construing the policy in favor of the insured in accordance with well-established principles of construction. In finding an ambiguity in the policy as a result of provision C, the [1495]court stated: “Cincinnati first argues there should be no allowance for any losses occurring prior to February 1, 1989, the commencement date of the second policy. Section 1 of the endorsement, previously quoted, clearly supports Cincinnati’s view. We agree, though, that the meaning of the language is clouded by provision C of the general agreements, also previously quoted. That provision, a clear incentive for insureds to continue to purchase coverage with Cincinnati, can be understood to extend the limitations period into the period of a new policy. . . .” (522 N.W.2d at p. 839.)
The Cincinnati court then goes on to cryptically find ambiguity in the word “cumulatively” as contained in the nonaccumulation clause of the policy and further construes the stated ambiguity in the insured’s favor. The Cincinnati court does not enlighten the reader with the reasoning or analysis of the court in coming to its conclusion that the aforementioned word is ambiguous, but is satisfied to set forth string citations indicating which courts have concluded that the provision is ambiguous and which courts have found no ambiguity in such word usage.
Absent provision C, I am of the opinion that the Cincinnati court would find no ambiguity in the nonaccumulation clause in the Cincinnati insurance policy.
In That A.B.S. Fails to Meet Its Burden to Show That the Noncumulative Clause Is Ambiguous, A.B.S.’s Interpretation Is Entirely Irrelevant.
As discussed above, A.B.S.’s interpretation of the Policy provisions becomes relevant upon a showing of ambiguity. (See Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 1264; Mitsui Mfrs. Bank v. Federal Ins. Co., supra, 795 F.2d 827, 829-830.) In my opinion, A.B.S. has failed to meet this burden, and as such, A.B.S.’s subjective interpretation is irrelevant.
A.B.S.’s Argument That Home Issued New and Separate Policies Is Not Supported by the Facts or Relevant Authorities.
As an apparent fallback position, A.B.S. argues that a key issue in the resolution of this matter is whether the policy of insurance is continuous or separate. A.B.S. argues that Home issued separate policies and, therefore, the provisions of each policy relate only to that policy. On this basis, A.B.S. asserts the noncumulative provision does not carry over but is limited to each discrete policy. A.B.S.’s interpretation creates much confusion in my opinion. I must ask the question, why would a policy address the issue of noncumulation if it only relates to a single period?
[1496]The recent decision of Kavaney Realtor v. Travelers Ins., supra, 501 N.W.2d 335, in my opinion, effectively undercuts A.B.S.’s position. Travelers issued three successive policies to insured KRD. As with this case, all of the policies were identical except for premiums and policy numbers. After discovering a loss which spanned several periods, KRD submitted its proof of loss to Travelers and sought to recover under the various policies. After Travelers denied that liability was cumulative, an action ensued whereupon the parties brought cross-motions for summary judgment.
The trial court found, inter alia, that the policy was noncumulative in nature. The trial court relied upon the fact that the insurance contracts were identical, but for the policy numbers,2 and that each policy contained the phrase that “ ' “Traveler’s total liability shall not be cumulative.” ’ ” (501 N.W.2d at p. 340.)
On appeal, the lower court was affirmed. After noting the noncumulative language provision, the court stated that the fact that the policy contained the following additional language was conclusive on the issue of cumulation: “ ‘If this form is substituted for any prior fidelity or forgery insurance issued by any of The Travelers Companies and the discovery period of such prior insurance has not expired, The Travelers Companies shall not be liable for more in the aggregate than the limit applicable to such prior coverage or the limit applicable to Coverage B, whichever is greater.” (Italics added.) (501 N.W.2d at p. 341.)
The court noted that “[s]ome say this provision, by itself, is sufficient to find coverage of successive policies to be limited to the face amount of any one of the policies, without cumulation or aggregation.” (501 N.W.2d at p. 341) However, as stated by the Kavaney court, it found “more.” The court found that language extending coverage to prior losses3 added impetus to the finding that the policy was continuous and against a finding of cumulation. (Id., at p. 341.)
[1497]The Home Policy contains the same language and “more.” Specifically, aside from the noncumulative provision, the Home Policy contains the following provisions that demonstrate the overall consistency of the policy’s intent and resolve against cumulation:
“8. Loss Sustained During Prior Insurance
“a. If you, or any predecessor in interest, sustained loss during the period of any prior insurance that you . . . could have recovered under that insurance except that the time within which to discover loss had expired, we will pay for it under this insurance, . . . [f b. the insurance under this Condition is part of, not in addition to, the Limits of Insurance applying to this insurance and is limited to the lesser of the amount recoverable under: [Ü (1) This insurance as of its effective date; or (2) The prior insurance had it remained in effect.
“9. Loss Covered Under This Insurance and Prior Insurance Issued by Us or Any Affiliate
“If any loss is covered:
“a. Partly by this insurance; and [^Q b. Partly by any prior cancelled or terminated insurance that we or any affiliate had issued to you ... the most we will pay is the larger of the amount recoverable under this insurance or the prior insurance.” (Italics added.)
These provisions in the Home Policy are followed by section 10 entitled “Non-Cumulation of Limit of Insurance,” which has been oft-quoted above. When read in context with all other provisions, it appears to this dissenting justice that the clear intent and language of the Policy demonstrates that it is not cumulative in nature. It is significant to note that A.B.S. has cited no authority for its contention that a definite duration and date of termination of a policy, or a new policy number, gives rise to cumulation of liability.
A.B.S. Is Attempting to Create Coverage Where None Exists Contrary to the Plain Language of the Policy.
Under California law, an insurer has the right to limit the coverage of a policy issued by it and is at liberty to limit the character and extent of risk it undertakes to assume; when it has does so, the plain language of the limitation must be respected. (General Ins. Co. of America v. City of Belvedere (N.D.Cal. 1984) 582 F.Supp. 88.) In no uncertain terms, the Home [1498]Policy contains a noncumulative provision which serves to limit liability to a single policy period. Sections 8 and 9 of the Home Policy pertaining to “Loss Sustained During Prior Insurance,” and “Loss Covered Under This Insurance and Prior Insurance Issued by [Home] or [its] Affiliate” are consistent with this purpose and serve to support this interpretation.
In light of what I perceive to be the unambiguous nature of the language and the fact that there is overwhelming authority in support of Home’s position, I am of the opinion that this court is required to respect the plain meaning of that provision. As the plain language of the Policy must be enforced as written, Home consequently cannot be held cumulatively liable to A.B.S.’s claimed losses to the extent that they occur over a span of more than one policy period. I would affirm the judgment of the trial court and award respondent its costs on appeal.
Respondent’s petition for review by the Supreme Court was denied August 10, 1995.
It should also be stressed that the Penalosa court did not find the noncumulative provision inherently ambiguous. (See also Columbia Heights Motors v. Allstate Ins. Co. (Minn. 1979) 275 N.W.2d 32 [Where a policy containing a similar noncumulative provision was not held to be inherently ambiguous, but rather, the court found ambiguities generated by another policy provision contained with the general provisions portion of the policy dealing with aggregate liability.] Identical provisions are absent from the present policy.)
While A.B.S. submits that the fact that the policy numbers were different for each of the three policies issued to it by Home supports its argument that the Home policies were separate contracts, in my opinion, no significance attaches to this argument in view of the noncumulation language utilized in this instance.
That language reads as follows: “ ‘E. Extensions of Coverage [f] Such insurance as is afforded by this form also applies as described below, but unless otherwise specified these extensions do not increase the limit of liability. [H 1. Coverage A or B applies to: . . . fi] (e) Prior Fidelity or Forgery Insurance-loss which would have been recoverable under prior fidelity or forgery insurance provided: [<]Q (1) there is no lapse in coverage between such prior insurance and insurance under this form; [*]Q (2) such loss would have been recoverable under this form had this form been in effect when the acts causing such loss occurred; and [<]fl (3) the time within which to discover loss under such prior insurance had expired; fiQ however, the amount of insurance under this extension shall not exceed the limit applicable to Coverage B in the amount for which it was written as of the time such prior insurance was replaced; or [1497]the amount recoverable under such prior insurance, if the latter be smaller.’ ” (Kavaney Realtor v. Travelers Ins., supra, 501 N.W.2d at p. 341.)