In 2011 and 2013, two groups of residents of the developments sued Pulte for
damages in separate construction defect lawsuits. After American Safety declined to
provide Pulte with a defense, Pulte filed this action, asserting that the additional insured
endorsements afforded it coverage and therefore required American Safety to provide it
with defenses on the construction defect issues. The trial court resolved companion
summary judgment and adjudication motions by ruling as a matter of law that a duty to
defend was owed under at least one of the policies. (Code Civ. Proc.,2 § 437c.) In
bifurcated proceedings, the court proceeded to hear testimony to determine that contract
damages were owed on each policy for the failure to carry out the duty to defend. (§ 592
[issues of law resolved before issues of fact].) The court also ruled that American Safety
had breached its implied covenant duties through its bad faith conduct in claims handling
that denied a defense.
1 Subcontractors on the projects who carried American Safety's insurance and who obtained additional insured endorsements for Pulte included Concrete Concepts, Inc. (Concrete), Frontier Concrete, Inc. (Frontier) and Foshay Electric Co., Inc. (Foshay). Where appropriate, we refer to these named insured "subcontractors" as a group, as it is not disputed that their policies had substantially similar endorsement language, as relevant here. 2 All further statutory references are to the Code of Civil Procedure unless noted. 2
During the next phase of trial, the court awarded Pulte punitive damages and
attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813 (Brandt) [attorney
fees recoverable as compensatory damages, attributable to counsel's efforts in obtaining
rejected amounts due under insurance contract]; Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, 807 [applying Brandt in context of contingency fee agreement].)
To address American Safety's challenges to the judgment, we first interpret the
coverage provisions of the subject policies in light of the teachings of Pardee
Construction Co. v. Insurance Co. of the West (2000) 77 Cal.App.4th 1340, 1356
(Pardee). In that case, this court addressed the scope of coverage that may be afforded
by additional insured endorsements in the factual context of construction defect litigation.
We conclude that the trial court was correct in ruling that the language of American
Safety's additional insured endorsements on the underlying insurance policies created
ambiguities on the potential for coverage in the construction defect lawsuits, thus
requiring it to provide Pulte with a defense to them. The trial court's subsequent decision
that American Safety's failure to do so was unreasonable and in bad faith is supported by
substantial evidence. We additionally uphold the court's decision that Pulte is entitled to
an award of punitive damages that is proportional, on a one-to-one basis, to the award of
compensatory damages in tort. (Bullock v. Philip Morris USA Inc. (2008) 159
Cal.App.4th 655, 690, fn. 18.)
Although we affirm the judgment as to its substantive rulings, as above, we are
required to reverse it in part as to the award of $471,313.52 attorney fees under Brandt,
supra, 37 Cal.3d 813, which we find to be inconsistent with the damages principles and
3
policies set forth in Brandt. We believe the court abused its discretion in implementing
an hourly attorney fee arrangement that Pulte did not arrive at until after trial, to replace
the previous contingency fee agreement in a manner that Pulte intended would operate to
increase its demand.3 Second, since the court calculated its $500,000 award of punitive
damages by appropriately utilizing a one-to-one ratio to the compensatory damages under
Brandt (fees in the amount of $471,313.52), it is necessary to direct the trial court to
recalculate not only the fees award under Brandt but also to adjust the amount of punitive
damages accordingly. The judgment will be reversed to that extent, with directions to
award Brandt fees only at a level consistent with Pulte's originally effective contingency
fee agreement, and then to impose an amount of punitive damages that reflects the basic
one-to-one proportion previously ordered. The balance of the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Lawsuits and Tenders
Beginning in 2003, Pulte was the general contractor and developer for two single-
family residential housing projects, Meridian and Mariners' Landing (the projects), and it
began to sell the homes in 2005 and 2006. During construction of both projects, Pulte
entered into subcontracts with Concrete and Frontier to supply concrete foundations and
flatwork. Pulte also entered into subcontracts with Foshay to supply electrical and related
3 In contrast to the award of Brandt fees, the court based its contract damages award on the hourly billings and invoices submitted, along with a finding that the expert testimony supported the conclusion that the amount billed was reasonable based on analysis of such material. Accordingly, there is no apparent issue on appeal arising as to the change in fee agreements, except as to Brandt. 4
waterproofing work for both projects. All the subcontracts required that the
subcontractors maintain liability insurance and that they name Pulte as an additional
insured on their insurance policies.
In 2011, a group of Meridian homeowners filed a construction defect lawsuit
against Pulte. (Schaefer v. Pulte Home Corporation (Super Ct. San Diego County, 2011,
No. 37-2011-00086211-CU-CD-CTL) (the Schaefer action).) This lawsuit contained
allegations against Pulte that its homes, sold after 2005 and 2006, were defectively
constructed in their foundation systems and slabs, thus allowing moisture to enter into the
structure and limiting the type of flooring materials and installation available. Such
allegations, and those of other water intrusion and cracks in the walls and ceilings,
potentially implicated the concrete subcontractors' work on the Meridian project.
Pursuant to Concrete's and Frontier's policies and endorsements, Pulte tendered its
defense of the lawsuit to American Safety. It provided copies of the subcontracts,
insurance certificates and/or endorsements, and the construction defect complaint, with a
homeowner matrix. American Safety refused for numerous reasons.
In 2013, a group of homeowners in Meridian and in Mariners' Landing filed their
construction defect lawsuit against Pulte. (Large v. Pulte Home Corporation (Super. Ct.
San Diego County, 2013, No. 37-2013-00043457-CU-CD-CTL) (the Large action).)
This lawsuit contained water intrusion and other claims against Pulte potentially
implicating the concrete subcontractors' work at the sites. Allegations were made that
Foshay's electrical and related waterproofing work on the two projects was substandard
and had contributed to damage at the projects, for which Pulte should be vicariously
5
responsible. Pursuant to all three policies and with supporting documentation, Pulte
tendered its defense of the lawsuit to American Safety, which declined. Numerous
reasons were given.
Both construction defect actions went forward. Another carrier that is not a part of
this lawsuit, Interstate, provided a partial defense to Pulte.
B. The Insurance Policies
During the time frames 2003 through 2006, American Safety issued to each of the
three subcontractors, as "Named Insureds," several liability insurance policies for
successive one-year periods. Each policy's insuring agreement provided coverage for
property damage (or bodily injury, not involved here) to which the insurance applied,
caused by an occurrence, during the policy periods.
The declarations page of each of the policies states that the aggregate
limit for "products – completed operations" was $1 million. The insuring
agreement and the definitions portions of the policies set forth terminology that
is relevant here. The definitions of "products – completed operations hazard,"
include all property damage occurring away from the insured's premises,
"arising out of 'your product' or 'your work' " (except for incomplete work or
abandoned work; not involved here). " 'Your work' " is defined as meaning
"(a) [w]ork or operations performed by you or on your behalf, and (b)
[m]aterials, parts or equipment furnished in connection with such work or
operations." " 'Your work' " includes warranties as to fitness and quality.
6
Within the "products – completed operations" definitions, "your work"
is deemed complete either when the work (a) called for in the contract is
complete; (b) at a particular job site is complete; or (c) is put to its intended
use.
Under the policy, "occurrence" means an accident, "including continuous or
repeated exposure to substantially the same general harmful conditions." "Property
damage" includes: "a. Physical injury to tangible property, including all resulting loss of
use of that property. All such loss of use shall be deemed to occur at the time of the
physical injury that caused it."
With respect to what entities constitute "the insured" under the
subcontractors' policies, American Safety issued additional insured
endorsements (AIEs) to Pulte, to become effective upon policy issuance (or
later, when work first started, etc.). Both appellant and respondent in this case
agree that while the exact language of the various AIEs in the various policies
varies slightly, they are all substantially similar. A key version of the grant of
coverage in the AIEs states:
"WHO IS AN INSURED (SECTION II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of 'your work' which is ongoing and which is performed by the Named Insured for the Additional Insured on or after the effective date of this Endorsement."
An alternative version of the AIE amended the definition of "who is an insured" to
include Pulte as an additional insured, "but only with respect to liability arising out of
'your work' and only as respects ongoing operations performed by the Named Insured for
7
the Additional Insured on or after" the endorsement's effective date. (Italics added.)
Some of the policies replace the italicized "and" (as above) with "but."
In two of the Foshay versions (all three of which were applicable only to the Large
project, not Schaefer), the AIEs are stated to provide coverage to the additional insured,
"but only with respect to liability arising out of 'your work' which is performed at the
project designated above. This Endorsement applies only to ongoing operations
performed by the Named Insured on or after" the endorsement's effective date. (Italics
added.) These Foshay policies specify "at the project designated above," because they
include a line in the endorsement for the "Name of Project," which identifies, "Those
projects on file with the Company."4
Each of the subcontractors' policies includes numerous exclusions in sections
designated by that heading. As relevant here, American Safety relies on separate "faulty
workmanship" or "work product" exclusions. In exclusion j.(5), the subcontractors'
policies state that no coverage is afforded for "property damage" to "[t]hat particular part
of real property on which you . . . are performing operations, if the 'property damage'
arises out of those operations[.]" Likewise, exclusion j.(6) precludes coverage for "[t]hat
particular part of any property that must be restored, repaired or replaced because 'your
work' was incorrectly performed on it." This exclusion j.(6) "does not apply to 'property
4 Although the Foshay policies are the only ones here that include a restriction that the policy covers only "projects on file with the company," some of the Concrete and Frontier denial letters from American Safety also use that policy language for a basis for denial (i.e., referring to failures to file the project with the company). 8
damage' included in the 'products-completed operations hazard.' " American Safety also
discusses exclusion (l), "Damage to Your Work," as excluding coverage for "property
damage" to the insured's work "arising out of it or any part of it and included in the
'products-completed operations hazard.' "5
C. This Action Filed; Series of Summary Judgment Motions
Pulte filed this action in 2013 seeking damages, including awards of unreimbursed
defense expenses, Brandt fees and punitive damages. Declaratory relief was requested on
the duty to defend and/or indemnify, breach of contract damages for the failure to defend
and/or indemnify, and further relief for breach of the duty of fair dealing and good faith.
As bad faith, Pulte alleges American Safety (1) failed to conduct "a reasonable, timely,
and unbiased investigation" to fully evaluate the requests for a full defense; (2) failed to
respond in a timely manner; (3) refused to honor its obligations under the policies;
(4) misrepresented pertinent policy provisions; (5) based the coverage decisions "on a
desire to reduce and/or avoid obligations to Pulte," thus refusing to afford it a defense.
This conduct allegedly "purposely deprived Pulte of the rights and benefits as an insured
under the policies." Moreover, it was alleged to be part of a "conscious and deliberate
pattern of unfair claims practices" of nonpayment and rejection of tenders of defense and
5 The policies contain numerous other restrictions that were litigated at trial, but that are not actively pursued as operative in this appeal. These include provisions in an endorsement for a self-insured retention (SIR), and a "sole negligence" requirement. As noted, Pulte received a partial defense from another carrier, Interstate, that is not a part of this lawsuit. We are not required to address the disputes during trial about the applicability of such other insurance, except to a limited extent regarding bad faith, as will be explained (pt. III, post). 9
indemnity made by the insureds, thus serving to frustrate Pulte's and other additional
insureds' reasonable expectations for coverage under the terms of the liability insurance
policies.
Pulte's initial motion for summary adjudication as to a declaration of the duty to
defend was denied, and this court denied its petition for a writ of mandate vacating that
ruling. (Pulte Home Corporation v. Superior Court, Dec. 16, 1984, D067083.)
Later in the action, Pulte and American Safety filed cross-summary
judgment/summary adjudication motions. According to Pulte, it was entitled to summary
adjudication and declaratory relief that American Safety had a duty to defend both
underlying actions, under the Concrete policies.
In contrast, American Safety sought summary judgment that (1) it owed no duty to
defend as to any of the subcontractors' policies, and (2) as a matter of law, its position
that there was no duty to defend and no coverage potential was reasonable, for purposes
of the bad faith claim.
By June 2015, the trial court issued rulings on both the motions. It granted Pulte's
summary adjudication request to find that American Safety had a duty to defend Concrete
in the actions. The court determined that American Safety had not established triable
issues of material fact on several defenses it was raising, such as a lack of evidence about
when work was performed at the defective homes. The court determined that as of the
time of tender, American Safety was potentially exposed to liability on Concrete's
policies for work performed on the homes on or after the effective date of the AIEs. The
court found no triable issues had been raised by American Safety that the work product
10
(faulty workmanship) exclusions might have applied. In reading the language of the
policy, the court further determined that the subcontractors' policies provided coverage
for completed operations and the AIEs had not excluded such coverage. After Pulte's
motion was granted, American Safety did not take up the defense of the still-pending
Large litigation.
Next, the court denied American Safety's motion for summary judgment or
summary adjudication. As previously noted (fn. 5, ante), two issues that were dealt with
are no longer pursued on appeal, a sole negligence restriction and a SIR requirement.6
However, the court issued key rulings denying summary judgment to American Safety
based on the ongoing operations language in its policies. The court analyzed the
authority of Pardee, supra, 77 Cal.App.4th at pages 1356 through 1357, on the related
topic of completed operations coverage as arising out of this property damage AIE
language, "liability arising out of 'your work.' " The court found that the AIEs' references
to ongoing operations had not expressly excluded complete operations coverage, and
there were triable issues of fact on a potential for such coverage that would preclude a
summary judgment for American Safety. The court also addressed a policy term found
only in Foshay's policies, that covered projects had to be "on file" with the company. The
court determined that there were triable issues of material fact as to whether those
6 In ruling against American Safety's request for summary judgment, the court noted that in the present duty to defend context, there was no appropriate reliance on "the genuine dispute doctrine," which precludes bad faith findings where an insurance carrier has a reasonable basis to deny coverage. Even if the doctrine did apply, the trial court said it would not operate in American Safety's favor on the motion. 11
projects were known to be on file with American Safety, within the meaning of the
policy.
D. Phase 1 of Court Trial: Rulings on Duty to Defend and Bad Faith
At trial beginning in November 2015, Pulte submitted a motion under section 592
to have certain rulings of law made before factual issues were tried. Pulte referenced the
court's ruling that had granted its previous summary adjudication motion to establish as a
matter of law that under the Concrete policies, American Safety had a duty to defend
Pulte in the still ongoing Large matter, and likewise had such a duty in the Schaefer case
(since resolved). Pulte argued that since the other subcontractors, Foshay and Frontier,
were also insured by American Safety while they worked on the same homes involved in
these underlying actions, during the same time frames, a similar ruling should be issued
as to those subcontractors. Pulte reasoned, "Because all factual predicates to the duty to
defend as to Foshay and Frontier were admitted by American Safety in its denial letters,
and all legal issues have been resolved by the Court's prior ruling in Pulte's favor, the
Court should now rule as a matter of law that American Safety owed Pulte a duty to
defend under the Foshay and Frontier policies as well."
This motion was opposed by American Safety on several grounds, arguing that
some of the material being relied on by Pulte, purported statements of claims adjusters,
was insufficient because it amounted to rephrasing hearsay information provided by Pulte
in tendering the defense under the policies. American Safety argued that even though
Pulte had prevailed on its own motion, it still had to prove there were "ongoing
operations of the named insureds" during the effective dates of the endorsements, and it
12
was not enough to submit subcontracts and homeowner matrixes from the underlying
actions.
As explained in the court's written decision after trial, the procedure it had
followed was to hear Pulte's motion under section 592 (duty to defend under the Foshay
and Frontier policies), but to defer decision on it until the end of trial. The court took
testimony from Pulte's managing employees about the claims process, and from its
construction defects counsel Sharon Huerta. Huerta testified that in such cases,
additional defects lists were sometimes supplied after the initial complaints were filed by
homeowners and investigations were conducted. Pulte's expert witness, Andrew Waxler,
addressed coverage issues and the amounts of fees Pulte incurred to defend the
underlying actions, saying they were reasonable in amounts. Although Pulte used a third
party claims administrator for litigation and financial management, it paid for its own
defense.
Pulte conducted direct examination of adverse witnesses, three of American
Safety's claims examiners and their supervisor, corporate claims counsel Jean Fisher.
(Evid. Code, § 776.) Fisher explained she began working for American Safety in 2005,
until in 2006 she began working for the related American Safety Claims Services, its
third party claims administrator. She assisted in drafting the subject AIEs. Although she
testified that she did not make decisions directly for American Safety, she also admitted
that she did not have to consult with its management in supervising her claims adjusters,
who issued denial letters under her guidance.
13
As defense witnesses, American Safety presented further testimony from Attorney
Fisher and expert testimony on policy interpretation from insurance expert Julia
Molander.
At the close of testimony, the court addressed the reserved issues under section
592, noting that extensive proceedings had taken place to determine the effect of the
previous summary adjudication ruling that there had been a duty to defend Concrete. The
court was being asked to extend that duty to the other subcontractors, and also to decide
whether the noncoverage position taken by American Safety had been reasonable or
instead, tortious and in bad faith. The court ruled as a matter of law that, consistent with
its previous rulings on summary judgment, American Safety had a duty to defend Pulte
under each of the policies. The court reached this conclusion about the effect of the
previous summary judgment rulings under the authority of Montrose Chemical Company
v. Superior Court (1993) 6 Cal.4th 287, 300-301 (Montrose I) (discussing procedural
ramifications of summary judgment rulings in duty to defend actions), and McMillin
Companies, LLC v. American Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 541
(McMillin) ["using an in limine motion as a substitute for a potentially dispositive
statutory (e.g., summary judgment) motion produces substantial risk of prejudicial
error"]; see pt. III.A, post).
Based on the court's independent reading of the policy language in light of the
analysis in Pardee, supra, 77 Cal.App.4th 1340, it confirmed that these AIEs did not
effectively exclude coverage for "completed operations" or for ongoing operations.
Because American Safety was found to have owed a duty to defend Pulte under each
14
policy, the court outlined as the remaining issues whether Pulte had suffered any damages
from that conduct and, if so, how much, regarding its claims on breach of the insurance
agreements, for the expenses of defending the underlying Schaefer and Large actions.
The court received extensive briefing, attorney declarations and invoices as to the fees
Pulte had incurred and the recent change it had agreed to, from a contingency attorney fee
arrangement to an hourly one.
In reaching its conclusions on breach of insurance duties and damages, the court
noted it had years of experience with construction defect cases. The court made the
observation that "construction defect litigation is notoriously fluid. Claims omitted from
one defect list pop up on a later defect list. While American Safety is not required to
speculate on future claims, the [inspection] reports do not establish there was no potential
for coverage after their preparation." In evaluating American Safety's refusal to provide a
defense, the court commented that the types of defects being alleged by the homeowners
in the underlying cases gave rise to a potential for coverage.
Based on expert testimony, the court made a finding that the fees Pulte had
incurred in defending the Schaefer and Large actions were reasonable. After making
appropriate credits for fees Pulte had received from the other insurer (Interstate), the
court made reductions for "(1) the $25,000 SIR [Schaefer], (2) fees incurred pre-tender,
and (3) all fees for tendering to American Safety which, if awarded, would be part of the
15
Brandt fees." Ultimately, the adjusted and corrected contract damages, with prejudgment
interest, totaled $455,238.45.7
The court next addressed whether the denials of defenses had been made in bad
faith, so as to entitle Pulte to Brandt fees and, if so, the amount awardable. It concluded
that American Safety's claims handling and denials of defenses had been conducted in
bad faith, in breach of its duty of good faith and fair dealing owed to Pulte. American
Safety had interpreted the only available case law by disregarding California federal
courts' unpublished cases that were contrary to its noncoverage position. The court relied
on several instances of conduct by American Safety representatives as constituting bad
faith. However, it determined that the continuing refusal to defend Pulte, after the court
issued its summary judgment rulings, was not per se unreasonable, in light of its
knowledge and belief that another carrier, Interstate, was providing Pulte some form of
defense in the underlying cases.8
The court then reached the issue of the substantive entitlement to punitive
damages, in terms of whether Pulte had established by clear and convincing evidence that
7 Although American Safety continues on appeal to challenge any imposition of liability, it evidently does not find fault with the trial court's arithmetic in reaching the contract damages calculations. 8 Pulte argues in its respondent's brief that the trial court erred in ruling that American Safety's failure to defend Pulte in the Large action, after Pulte's summary adjudication motion was granted, did not amount to bad faith (since Interstate was providing an alternative defense to Pulte). (See, e.g., Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 70 [duty to defend evaluated without reference to another carrier's participation].) This factor has been considered as part of the overall picture but is not dispositive here. 16
American Safety was guilty of oppression, fraud or malice. The court found Pulte had
made an adequate showing of American Safety's demonstrated pattern and practice of
issuing AIEs, then using every conceivable argument to deny coverage, regardless of the
merit of the arguments. The evidence showed this conduct had occurred not only in the
current case but also in hundreds of denials of other additional insureds' tenders,
amounting to misrepresentations about the policy provisions. The court determined that
the testimony of Attorney Fisher and the claims adjusters demonstrated that Fisher had
exercised substantial independent authority and judgment in claims handling, thus
effectively determining corporate policy with the knowledge and cooperation of her
managers, who ratified her decisions. All that conduct occurred in the context of
American Safety's knowledge that both the named insureds and additional insureds
intended that they would be receiving a defense if they were sued in construction defect
cases. This conduct amounted to clear and convincing evidence of its malice and
oppression.
The court accordingly required American Safety to produce evidence about its
financial condition, in connection with the punitive damages requests. A second phase of
trial on punitive damages and Brandt fees was required.
E. Phase Two of Trial: Punitive Damages and Attorney Fees
Pulte submitted declarations dated February 9, 2016, after trial, from its house
counsel Michael Laramie and its third party claims administrator, John Macy, about why
Pulte had changed its contingency fee agreement to an hourly one, believing that more
compensation for counsel was needed in response to the hard fought nature of the trial.
17
Following further briefing and oral argument, the court issued a separate decision on
punitive damages and all of the attorney fees issues. In the discussion portion of this
opinion, we will set forth its specific reasoning and awards. Pulte's base award of
defense fees and costs, plus prejudgment interest, for the defense of the Schaefer and
Large actions amounted to $455,238.45. In addition, it received a separate award of
attorney fees and costs pursuant to Brandt, supra, 37 Cal.3d 813, in an amount intended
to be equivalent to what Pulte had actually incurred and paid, subject to reductions by the
court for ineligible fees (those incurred pre-tender, those incurred in pursuit of a defense,
and the applicable self-insured retention amount). Pulte was thus awarded its
unreimbursed defense fees and costs incurred, as Brandt attorney fees of $471,313.52,
together with associated costs of $38,587. The court determined that punitive damages
should be awarded against American Safety, on a one-to-one ratio to the Brandt fees, as
appropriate for this type of case.
In total, the judgment entered against American Safety was for $1,478,288.37,
with interest.9 Its new trial motion on excessive damages grounds was denied and it
appeals.10
9 The breakdown of the judgment is as follows: Schaefer defense fees and costs, $217,280.01; Large defense fees and costs, $114,842.98; Schaefer prejudgment interest to February 19, 2016, $101,353.79; Large prejudgment interest to February 19, 2016, $21,761.67; Brandt fees, $471,313.52; Brandt costs, $38,587; punitive damages, $500,000. 10 On June 5, 2017, this Court denied Pulte's request for judicial notice on appeal of an unpublished case report and of various trial court orders that were issued in unrelated cases in which American Safety was also a party. (Evid. Code, §§ 452, 453, 459.) 18
DISCUSSION
Here, as in Pardee, supra, 77 Cal.App.4th at page 1356, the initial issue for policy
interpretation "is whether the additional insured endorsements explicitly exclude
coverage for the subcontractors' completed operations." American Safety chiefly
contends that its coverage exposure was limited to the time frame of the subcontractors'
ongoing operations at the project sites, and that since the homes were sold as completed
units, such ongoing operations had long been concluded. It also argues the faulty
workmanship policy exclusions applied, in connection with its position that its
noncoverage determinations were reasonable and not in bad faith.
In response, Pulte claims that as an additional insured, the tenders of defense that
it provided to American Safety contained sufficient information to demonstrate its
entitlement to a defense, based on potential completed operations coverage that should
have been available under the policies. Pulte argues this grant of coverage "for liability
arising out of 'your work' " was not inconsistent with the "ongoing operations" language.
To address these issues and whether there is support in the record for the different forms
of relief awarded by the trial court, we first outline policy interpretation standards in this
factual context. (Griffin Dewatering Corp. v. Northern Ins. Co. of New York (2009) 176
Cal.App.4th 172, 208 (Griffin Dewatering Corp.) [reasonableness of insurer's contractual
position depends on both the factual context in which the dispute arose and the rules of
contract interpretation].)
19
I
POLICY INTERPRETATION
A. Duty to Defend
Both parties agree that the trial court's basic policy interpretation rulings are
subject to de novo review. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18
(Waller); Pardee, supra, 77 Cal.App.4th at p. 1349, fn. 3.) "The determination whether
an insurer owes a duty to defend is made in the first instance by comparing the terms of
the policy with the allegations of the complaint. Facts extrinsic to the complaint give rise
to a duty to defend when they reveal the possibility the claim may be covered by the
policy. Conversely, where such facts eliminate the potential for coverage, the insurer
may decline to defend even where the bare allegations of the complaint suggest potential
liability. This is so because the duty to defend, although broad, is not unlimited, but
rather measured by the nature and kinds of risks covered by the policy. An insurer may
have a duty to defend even though it ultimately may have no obligation to indemnify . . . .
Finally, the duty to defend is a continuing one, arising upon tender and lasting until the
underlying litigation is resolved, or until the insurer has established there is no potential
for coverage." (Id. at p. 1350.)
"The fundamental rules governing the interpretation of contracts apply equally to
the construing of insurance contracts. They are premised on the primary goal of giving
effect to the mutual intention of the parties at the time the contract is formed. That intent
is to be inferred, if possible, solely from the written provisions of the contract. If the
language of the insurance contract is clear and explicit, it governs. [¶] . . . [¶] . . . [B]ut in
20
order to protect the objectively reasonable expectations of the insured, the courts
endeavor to interpret the ambiguous language in the sense in which the insurer believed,
at the time of making it, the insured understood it. Only if this approach does not resolve
the ambiguity, do the courts then resolve it against the insurer." (Pardee, supra, 77
Cal.App.4th at p. 1352; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-
1265.)
"Since construction defect litigation is typically complex and expensive, a key
motivation in procuring an additional insured endorsement is to offset the cost of
defending lawsuits where the general contractor's liability is claimed to be derivative."
" 'Endorsements on an insurance policy form a part of the insurance contract [citation],
and the policy of insurance with the endorsements and riders thereon must be construed
together as a whole [citation].' " (Narver v. California State Life Ins. Co. (1930) 211 Cal.
176, 181.)
B. Potential for Coverage Regarding Additional Insureds
The subcontractors' base agreement with Pulte required them to "add Pulte []as an
Additional Insured on the above general liability policy by having the insurance carrier
issue a CGL-2010 Endorsement, Additional Insured-Endorsement Edition date 10/93, or
its equivalent as determined by Pulte. This endorsement shall apply to the full extent of
the actual limits of Contractors' coverage . . . ."
As to any AIE, "in resolving whether the allegations in a complaint give rise to
coverage under a CGL policy, we must consider the occurrence language in the policy, as
21
well as the endorsements, if any, that broaden coverage included in the policy terms."
(Pardee, supra, 77 Cal.App.4th at p. 1351.) Pardee contains extensive analysis of the
different versions of AIEs used in the industry, as drafted by the ISO (e.g., a sample AIE,
the "2010" form; see Cal. Practice Guide: Insurance Litigation (The Rutter Group 2016)
¶ 7:1407.5, pp. 7E-3 to 7E-4.) Construction defect claims may arise long after
completion of the project. Pardee's discussion references the commercial reality of the
CGL market as giving contour to the reasonable expectations of policyholders and
additional insureds in this context, as follows:
"Damage resulting from a subcontractor's work often does not arise for years. It is thus prudent for general contractors to obtain completed operations coverage as additional insureds from their subcontractors' insurers. . . . [A]dditional insured coverage is intended by the insurance industry to cover vicarious liability that an additional insured may incur due to operations of the originally named insured. Nor is there any dispute the endorsements were purchased so as to protect the general contractor against potential construction defect litigation." (Pardee, supra, 77 Cal.App.4th at pp. 1360-1361.)
It is well recognized that "property damage resulting from defective construction
may occur over an extended period of time, spanning several policy periods. [Citation.]
Consequently, it is common for a general contractor or developer to be insured under
several separate policies for the same construction liability. In such cases, the several
insurers on the risk may be required to share the costs of defense and indemnification."
(Cal. Practice Guide: Insurance Litigation, supra, ¶ 7:1408.7, p. 7E-5; italics added.) It
is in this context that Pardee, supra, 77 Cal.App.4th at pages 1355 to 1359 addresses
whether "completed operations" coverage under the subcontractor's policy, for its
22
negligence, extends to the vicarious liability of an additional insured developer. The
conclusion to be reached depends on the wording of the additional insured endorsement.
(Ibid.; Cal. Practice Guide: Insurance Litigation, supra, ¶¶ 7:1409.15-7:1409.16,
pp. 7E-13 to 7E-14.)
Where, as here, the insurer has drafted the policy language, it is usually held
responsible for ambiguous policy language, through the rule of construction in favor of
the insured's reasonable expectations. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d
807, 822–223.) If it is clear that an insurance policy was actually negotiated and jointly
drafted, less attention is paid to protecting the insured from ambiguous or highly
technical drafting. (Ibid.) American Safety wrote its own "manuscript" AIEs, which the
named insurers obtained for Pulte. That sequence of events does not indicate there was
approximately equal bargaining power in this case. This leaves us with the usual rule for
resolving ambiguities against the insurer, to interpreting the potential scope of coverage
under these specialized AIEs, as it relates to a duty to defend.
II
DUTY TO DEFEND UNDER ADDITIONAL INSURED ENDORSEMENTS
A. Effect of Summary Judgment/Adjudication Rulings
At the outset of trial, Pulte's section 592 motion sought a preliminary legal ruling
that the denial of American Safety's motion for summary judgment served to establish a
duty to defend as a matter of law. Pulte also relied on its own previous summary
adjudication motion, granted as to Concrete's entitlement to a defense. Pulte sought a
23
legal ruling at trial to extend that duty to the two other subcontractors.11 Pulte cited to
the American Safety denial letters as to the Foshay and Frontier policies, in which
American Safety had reviewed the documentation provided and acknowledged the dates
of the subcontracts, job file documents, and the AIEs, as well as the close of escrow dates
for Pulte's sales of the allegedly defective homes.
Using those exemplars of American Safety's denial letters, Pulte's section 592
motion contended American Safety's correspondence admitted that there was a potential
that the work performed by the named insureds had occurred within the identified policy
periods, by setting forth the relevant close of escrow dates of sales of the completed
homes. Opposition by American Safety was filed, the matter was deferred, and the court
proceeded to hear several days of testimony from each side.
In ruling on the section 592 motion at the conclusion of trial, the court observed,
"We had a lot of evidence, a lot of testimony, documents, and everything else about
ongoing operations, about sole negligence and those issues. I am assuming the relevance
of those in hindsight is whether it was reasonable or not for American Safety not to
defend." The court explained that American Safety had been unsuccessful throughout in
seeking to implement its substantive interpretation of the policy language, and then ruled
from the bench:
11 When denying American Safety's summary judgment motion, the court declined to resolve it on procedural issues such as noncompliance with the requirements of the rules of court on the format of the papers. Instead, the court expressed a preference to reach the merits of the motion. The fact that trial was still required to go forward at that point shows that some of the merits of the policy interpretation issues were still in flux. 24
"In the motion filed by [American Safety], the argument, at least as addressed in the summary adjudication, was not that there were not, in fact, operations, but rather the interpretation of the policy. And the ruling was not a factual ruling, but a legal rule. But nothing would change on that. The facts are still the same on that. Nothing changes. The policy is still the same. [¶] . . . [¶] So some of the issues were denied on questions of fact, material issues of fact. . . . I went into the arguments on both sides as opposed to simply saying that there was a failure on the initial burden of proof. [¶] So I think the traditional rule of Montrose [I, supra, 6 Cal.4th 287, 300-301; citations] applies. And the effect of the denial of American Safety indemnity's motion for summary judgment and summary adjudication established the duty to defend. And therefore, the issue I have to decide is whether or not the denials were reasonable or in good faith. [¶] . . . [¶] I think all of the facts adduced at trial are still relevant as to reasonableness. [¶] . . . [¶] So go ahead . . . ."
Although we accept that the trial court's summary adjudication ruling establishing
there was a duty to defend (as to Concrete) served to limit the legal issues presented at
trial, we also acknowledge that other arguments on the potential for coverage were
developed during trial. After it heard the evidence, the court essentially confirmed its
previous rulings on the pretrial motions, consistent with its understanding of the
explanation in Montrose I, supra, 6 Cal.4th at pages 300 through 301, of the extent of the
binding effect of a summary judgment ruling in this context. (See McMillin, supra, 233
Cal.App.4th 518, 541.) The court accordingly told counsel that the evidence already
presented about the coverage and exclusions issues was now to be considered on the bad
faith questions, as part of the evaluation of the reasonableness of the denials of defenses.
To some extent, this appeal reargues the same policy interpretation issues on the
potential for coverage, under its completed operations and ongoing operations language.
However, many of the issues for which the trial court found the existence of triable
25
material facts have essentially been dropped out of the appeal (e.g., the self-insured
retention, other insurance, and sole negligence). The better approach now is to assess the
merits of the trial court's various, consistent coverage rulings on a de novo basis,
concerning the duty to provide a defense, and then to decide the closely related
reasonableness issues on the bad faith claims (pt. III, post).
B. Nature of Potential Coverage under Policies
The terms of the AIEs must be read in light of the definitions and
coverage provisions of the policies. Pulte was named as an additional insured
"but only with respect to liability arising out of 'your work' and only as
respects ongoing operations performed by the Named Insured for the
Additional Insured on or after" the endorsement's effective date. (Italics
added.)12 Another typical version states:
"WHO IS AN INSURED (SECTION II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of 'your work' which is ongoing and which is performed by the Named Insured for the Additional Insured on or after the effective date of this Endorsement." (Italics added.)
" 'Your work' " includes warranties as to fitness and quality. Within the
[addressing coverage under a "products hazard" clause containing a special asbestos
29
exclusion in a policy issued to a manufacturer of asbestos-containing products].) As
explained in Fibreboard Corp.:
"[A] manufacturer or person who performs a service can incur liability in a number of ways, including '(1) while work is in progress, [and] (2) after completion. . . . An injury or loss may result while an activity is in progress, and prior to the completion thereof, either as a result of an act of negligence or an omission. Such liability is embraced within the ordinary liability aspect of a public liability policy under coverage for premises-operations. [¶] . . . [O]nce a product has been completed and sent to market . . . liability may be incurred by reason of a defect in merchandise or improper workmanship. It should be clear that the premises- operations coverage is not appropriate coverage and the individual now needs 'products liability' or 'completed operations' coverage. The coverages are complementary and not overlapping . . . .' [Citation.] Thus, as a matter of sequencing, 'it is well to recognize that products liability is a coverage that takes over where premises- operations leaves off . . . .' " (Fibreboard Corp., supra, 16 Cal.App.4th 492, 500-501.)
This authority indicates that there may be a clear distinction among products
liability claims concerning a completed product, compared to other liability claims for
work in progress. (Fibreboard Corp., supra, 16 Cal.App.4th at pp. 500-501.) That is a
different context and type of work from the case before us, arising in the context of
construction defects in which one faulty component or portion of a subcontractor's work
could allegedly have caused physical injury to nearby work. Since we are evaluating
only a potential for coverage, as related to a duty to defend and on a de novo basis, we
must consider the language of the AIEs for any or all type of coverage they may afford.
(Pardee, supra, 77 Cal.App.4th at p. 1351 [court considers occurrence language in the
policy with the endorsements to determine whether coverage included in the policy terms
is broadened].)
30
3. Timing of Alleged Property Damage
A standard occurrence based CGL policy potentially provides coverage for injury
or damage even if it may not have been discovered or manifested until after the policy
period ended. (Century Indemnity Co. v. Hearrean (2002) 98 Cal.App.4th 734, 743.)
American Safety's initial argument seems to be that we should evaluate the construction
defect complaints as alleging injury that did not occur until the date of purchases by the
individual home buyers, of completed homes. It is claiming that there were no longer
any ongoing operations by the subcontractors, once the homes were completed.
When Pulte tendered its defense, American Safety was notified of allegations that
the subject homes contained violations of construction standards, leading to existing and
anticipated property damage from moisture that was invading the faulty concrete,
electrical, or waterproofing work. With regard to the timing of alleged property damage,
the Schaefer action alleged that within the past 10 years, the defendants, as original
owners or developers of the project, had constructed the homes, which since their
completion, "have become known to be defective as herein alleged," in that they are not
adequately constructed to prevent water intrusion. Such construction was alleged to have
been done in an improper fashion, resulting in the homes' water damage as a direct and
proximate consequence.
The Large complaint alleged that Pulte had performed construction and
development of the homes, which were substantially completed within the last 10 years.
Large alleged that the defendant real estate developers and their agents had failed to meet
residential construction standards for components such as waterproofing systems,
31
electrical systems, and concrete, and that many of the violations were causing property
damage to their homes.
Exposure to liability under a policy is evaluated according to the specific language
under review, to reconcile the effect of related elements in the CGL policy. (Baker v.
National Interstate Ins. Co. (2009) 180 Cal.App.4th 1319, 1337-1339 (Baker).) Under
these policies, " 'Occurrence' means an accident, including continuous or repeated
exposure to substantially the same general harmful conditions." "Property damage"
includes: "a. Physical injury to tangible property, including all resulting loss of use of
that property. All such loss of use shall be deemed to occur at the time of the physical
injury that caused it . . . ." None of this language requires "that the eventual claimant
own the property at the time the property is damaged for coverage to ensue." (Garriott
Crop Dusting Co. v. Superior Court (1990) 221 Cal.App.3d 783, 791.) In any event,
there was a lack of evidence about when the subcontractors' work was performed at the
defective homes.
These policy terms may be read to cover construction work that creates "physical
injury to tangible property," such as from exposure to moisture leakage, due to the nature
of concrete or electrical work that was performed during the effective periods stated in
the AIEs. Physical injury to the homes' foundations and walls, as established by
inspections, is clearly alleged in the underlying construction defect complaints, and is not
tied to the current owners' finances. Attorney Huerta generally testified that defects lists
could be updated during litigation. The trial court agreed, "construction defect litigation
is notoriously fluid. Claims omitted from one defect list pop up on a later defect list.
32
While [American Safety] is not required to speculate on future claims, the [inspection]
reports do not establish there was no potential for coverage after their preparation." The
creation of reported defects in the concrete and electrical work performed, as an
occurrence during the policy period, could have allowed continuous or repeated exposure
to harmful conditions elsewhere.
" ' "[T]he existence of a duty to defend turns not upon the ultimate adjudication of
coverage under its policy of insurance, but upon those facts known by the insurer at the
inception of a third party lawsuit. [Citation.] Hence, the duty 'may exist even where
coverage is in doubt and ultimately does not develop.' " ' '" (Atlantic Mutual Ins. Co. v.
J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1033 (Atlantic Mutual).) Where insuring
agreements provide coverage for property damage occurring during the policy periods, a
construction defect complaint alleging progressive damage gives rise to the potential
" 'that there existed—at least potentially—a covered event, i.e., a continuing and
progressively deteriorating process which began with defective design and construction
. . . within the pertinent policy period.' " (Century Indemnity Co. v. Hearrean, supra, 98
Cal.App.4th 734, 740.) American Safety incorrectly focuses on when the current
property owners became financially damaged through purchases. This begs the question
of when the subject property damage occurred from the work of the subcontractors. The
coverage potential depends on when the property became physically damaged. (Standard
Fire Ins. Co. v. Spectrum Community Assn. (2006) 141 Cal.App.4th 1117, 1132; Garriott
v. Crop Dusting Co., supra, 221 Cal.App.3d 783, 791.)
33
From the circumstances shown in the tenders of defense, in which property
damage became evident after the work was completed, American Safety was placed on
sufficient notice that some of the subcontractors' work could have been ongoing and/or
completed during its policy periods, since the homes were constructed in phases. At that
time, the mechanisms of the alleged property damage remained unknown, as did the
timing of the damage in relation to the dates of purchase. As the trial court's decision
correctly observed, the damage or occurrence might have occurred "while the
subcontractor's operations were ongoing but after the house had been sold to one of the
plaintiffs." We disagree with American Safety's claim that it should not have had to
respond to these defense demands, without a greater showing that its policy applied,
based on the subcontractors' work and Pulte's potential vicarious liability for it.
As explained in Montrose I, in the comparable legal context of a declaratory relief
action, "[t]o prevail [] the insured must prove the existence of a potential for coverage,
while the insurer must establish the absence of any such potential. In other words, the
insured need only show that the underlying claim may fall within policy coverage; the
insurer must prove it cannot. Facts merely tending to show that the claim is not covered,
or may not be covered, but are insufficient to eliminate the possibility that resultant
damages (or the nature of the action) will fall within the scope of coverage, therefore add
no weight to the scales. Any seeming disparity in the respective burdens merely reflects
the substantive law." (Montrose I, supra, 6 Cal.4th at p. 300; Pardee, supra, 77
Cal.App.4th at p. 1351 [" 'when a suit against an insured alleges a claim that potentially
or even possibly could subject the insured to liability for covered damages, an insurer
34
must defend unless and until the insurer can demonstrate, by reference to undisputed
facts, that the claim cannot be covered.' "].)
Under this authority, American Safety cannot show that Pulte, as its additional
insured, "failed to timely provide information to an insurer that would have established
the potential for coverage in the first instance." (Atlantic Mutual, supra, 100 Cal.App.4th
1017, 1040.)
4. "Ongoing Operations" as a "Limiting Term" or Exclusion?
American Safety next argues there was no possibility of products-completed
operations hazard coverage applying here, because it had inserted the following italicized
qualifier into the AIEs, that policy benefits would be afforded for "liability arising out of
'your work,' 'but only as respects ongoing operations.' " It calls this "ongoing
operations" language "a limiting term excluding completed-operations coverage," and
argues that its use of different terms in the policy was evidently intended to afford
different meanings for them. (See Weitz Company, LLC v. Mid-Century Insurance Co.
(Colo. App. 2007) 181 P.3d 309, 313 [interpreting policy term "completed operations" as
extending such coverage to named insured/subcontractor, but finding the term "ongoing
operations," used in conjunction with "only" in the endorsement, served to limit the
coverage provided to general contractor/additional insured].)
Attorney Fisher testified that she knew of one contracting company that had paid
as much as $100,000 to obtain more completed operations coverage than was afforded in
its AIEs. American Safety now argues it can be inferred (apparently from the lower price
of the AIEs, which is unclear from the briefing) that it did not intend to provide
35
completed operations coverage to Pulte. It relies on language in Baker, supra, 180
Cal.App.4th 1319, that describes the costly nature of products-completed operations
hazard coverage: " 'The modern CGL policy provides basic "premises and operations"
coverage. This coverage insures for damages arising out of an occurrence at the insured's
place of business as a result of the insured's ongoing business activities. The risk covered
by the CGL premises and operations coverage differs from the risk posed once an insured
relinquishes its products to third parties or completes its work. This latter risk is insured,
for an additional hefty premium, under the products-completed operations hazard
coverage. The purpose of the products-completed operations hazard coverage is to insure
against the risk that the product or work, if defective, may cause bodily injury or damage
to property of others after it leaves the insured's hands.' " (Id. at p. 1337, italics added.)
American Safety's interpretation fails to demonstrate any coverage is potentially
limited to ongoing operations. The AIEs' language allowing coverage for "liability
arising out of 'your [the named insured subcontractor's] work' " can reasonably be read as
a grant of coverage for the insured's completed operations, if property damage ensued
from them. As noted in Pardee, supra, 77 Cal.App.4th at page 1356, " 'your work' is
further defined in the policies as including warranties and representations. Liability
arising out of such inherently involves completed work, not work in progress."
It is well accepted as a commercial reality that construction work performed at one
time may deteriorate or manifest injury or damage, possibly to adjacent work, at a later
time or after completion. (Pardee, supra, 77 Cal.App.4th at pp. 1360-1361.) Unlike in
Pardee, where the policies were issued postconstruction, the subject AIEs were issued
36
during construction, while the subcontractors were still working on different phases of
the projects. Both sets of insureds could reasonably have expected that if the
subcontractors had bought completed operations coverage for the work, it also applied to
vicarious liability of the developer, if property damage problems appeared. (Id. at p.
1350.) These AIEs do not clearly restrict coverage to only ongoing operations, simply by
linking the ongoing operations phrase to the "liability arising out of the work" clause.
(Id. at pp. 1359-1360.) We should give effect to each of the phrases defining the scope of
coverage.
The court's decision stated that American Safety had failed to clearly state in the
AIEs that completed operations are not covered, and failed to restrict coverage as
applicable only to ongoing operations. Instead, "ASIC has taken a middle-ground and
left the language in that the endorsement applies to 'your work' but limited to ongoing
operations and therefore creating an ambiguity. Had ASIC wished to make it clear to
Pulte that it was not covering completed operations for the additional insured (which its
policy covers for the named insured), ASIC could have clearly said so." (Italics added.)
We agree that the AIEs are ambiguous in combining these two types of coverage in one
clause. They "failed to expressly limit covered completed operations as to time or
particular project in their policy and endorsement language." (Pardee, supra, 77
Cal.App.4th at p. 1357.) They are not "expressly limiting the time frame of the additional
insured coverage to the time of the ongoing operations of the named insured." (Id. at
p. 1356.) They do not adequately define " 'your work' as work 'now being performed or
to be performed during the term of this policy.' " (Ibid.)
37
If this "ongoing operations" language is meant as an exclusion, it must be
narrowly construed. (Waller, supra, 11 Cal.4th at p. 16.) Assuming that the
subcontractors carried out ongoing operations "on or after the effective date of the
endorsement," their work was performed during the policy period and coverage was not
clearly excluded.
For purposes of determining a defense duty, the AIEs seem to allow completed
operations coverage, based on potential liability that might yet arise from the
subcontractors' completed work. Next, the policies add another form of coverage, for
"ongoing operations . . . on or after the effective date of this Endorsement." We do not
understand that purported "ongoing" limitation to be clearly undoing a grant of coverage
against liability arising from work completed during the effective dates of the AIEs. If
the "ongoing operations" language was meant by American Safety to preclude coverage
for completed operations losses, it had to expressly state "that coverage was limited to
claims arising from work performed during the policy period." (Pardee, supra, 77
Cal.App.4th at p. 1358.) We cannot say the underlying complaints pleaded zero facts
bringing Pulte within potential policy coverage. Assuming there was doubt as to whether
the duty to defend existed, it should have been resolved in favor of the additional
insureds.
C. Effect of Faulty Workmanship Exclusions
American Safety's alternative grounds for denying a defense to Pulte included its
faulty workmanship exclusions. In exclusion j.(5), the subcontractors' policies state that
no coverage is afforded for "property damage" to "[t]hat particular part of real property
38
on which you . . . are performing operations, if the 'property damage' arises out of those
operations[.]" (Italics added.) In exclusion j.(6), coverage is precluded for "[t]hat
particular part of any property that must be restored, repaired or replaced because 'your
work' was incorrectly performed on it." This exclusion j.(6) "does not apply to 'property
damage' included in the 'products-completed operations hazard.' " (Italics added.)
"[A]n insurer may only defeat an existing potential for coverage by undisputed
facts that conclusively negate such coverage. This is particularly true where the insurer
seeks to defeat coverage by reliance on an exclusion. An insurer may rely on an
exclusion to deny coverage only if it provides conclusive evidence demonstrating that the
exclusion applies." (Atlantic Mutual, supra, 100 Cal.App.4th at pp. 1039-1040; Waller,
supra, 11 Cal.4th at p. 16 [exclusions will be narrowly construed].)
"Where a term used in an insurance policy is not defined, it must be interpreted in
its ' "ordinary and popular sense.' ' [Citation.] Although exclusions are generally viewed
through a more critical prism, the principle that words are considered in their 'ordinary
and popular sense' is not discarded, and, thus, in interpreting a word in an insurance
policy, including a word in an exclusion, a court may consult and consider definitions
found in a common dictionary, provided the court does not disregard the policy's context,
and maintains an eye on the fundamental goal of deciding how a layperson policyholder
might reasonably interpret the exclusion's language." (Baker, supra, 180 Cal.App.4th at
p. 1340.)
American Safety cites to authority that a general contractor or developer's work
product includes all work at the site, including that of the subcontractors. (E.g., Diamond
39
Heights Homeowners Assn. v. National American Ins. Co. (1991) 227 Cal.App.3d 563,
573; George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104
Cal.App.4th 784, 805 ["In the case of a general contractor, all the work at the project is
considered its work product, whereas in the case of a subcontractor, . . . only its portion
of the work, such as siding, is the work product and damage to other parts of the project
is considered damage to other property."].)13 This approach disregards the pleaded facts
in the underlying complaints, that some of the numerous subcontractors' work was
allegedly defective and therefore caused problems with other interrelated and adjacent
construction work at the projects. American Safety did not justify its denial of the
defense by establishing the precise timing of the subcontractors' work or consequently,
the nature of the alleged construction defect property damage.
The trial court expressed concerns that when the coverage and exclusionary terms
of the AIEs were combined, only an illusory degree of coverage would be available. (See
Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 94-95 [coverage not
illusory even where a special coverage condition might not arise].) American Safety
disagrees, interpreting its own policy as supplying an additional insured with ongoing
operations coverage that could have arisen during the work, but only as follows: "Thus,
Pulte would have been covered, for instance, if a piece of improperly-secured plywood
13 American Safety quotes another exclusion, j.(l), "Damage to Your Work," as excluding coverage for "property damage" to the insured's work "arising out of it or any part of it and included in the 'products-completed operations hazard.' " On appeal, it does not actively argue the applicability of this exclusion. 40
blew off and hit a passerby or damaged an adjacent already-sold and occupied home, or
grading work caused earth movement and landslides in an adjacent development.
Although not illusory, the coverage is limited; it is drafted and priced that way and it is
exactly what the subcontractors and Pulte bargained for." Because of these cited policy
exclusions, American Safety argues there could be no coverage "for injuries arising out
of the work itself, e.g., construction defects."
The problem with these exclusionary arguments is that the record does not contain
a showing by the insurer that all of the damage the homeowners were claiming was
limited to the particular location where one or another of the subcontractors was
performing their work, such that these policy exclusions would clearly apply. (Roger H.
Proulx & Co. v. Crest-Liners, Inc. (2002) 98 Cal.App.4th 182, 201-203 (Roger H. Proulx
& Co.); Montrose I, supra, 6 Cal.4th 287, 298.) As far as the construction defect
complaints disclose, there were potentially overlapping forms of damage among the
different locations of concrete, electrical and other types of work, all of which had
permitted some kind of moisture damage to occur over time. It was factually unclear
under exclusion j.(5) that no coverage was possible for property damage located at the
site of each named insured's operations, or if the alleged damage arose solely out of those
particular operations.
With respect to exclusion j.(6), coverage would be precluded for damage to
portions of property "that must be restored, repaired or replaced because 'your work' was
incorrectly performed on it." The construction defect complaints broadly allege that both
work and materials were defective, and American Safety did not supply a showing that
41
each of the named insureds' work was incorrectly performed such that no possible basis
for coverage could have existed, on a vicarious liability basis. Once again, there was no
reliable way shown for determining, at the outset of the construction defect matters,
which subcontractors' work had been substandard or whether it had damaged its own or
another's adjacent work. As of the time of tender, those claims could have involved
damage from one or more types of work done at the projects. The faulty workmanship
exclusions did not clearly apply to preclude a duty to defend. (Roger H. Proulx & Co.
Inc., supra, 98 Cal.App.4th at pp. 202-203.)
III
RELATED FINDINGS ON BAD FAITH LIABILITY
A. Requirements for Liability
Having determined there was a breach of the duty to defend from which Pulte was
damaged, the trial court's decision after trial next addressed the question of whether
American Safety had "unreasonably and without proper cause" failed to defend Pulte in
the construction defect matters. Citing to various forms of evidence presented at trial on
American Safety's claims handling practices, the court concluded the company had
breached the policy's implied covenant of good faith and fair dealing in numerous ways.
To the extent factual findings were made on conflicting evidence about the insurer's
conduct and motives, we must evaluate this challenged portion of the judgment for any
substantial support in the evidence. (Dalrymple v. United Services Auto. Assn. (1995) 40
Cal.App.4th 497, 511 (Dalrymple).) "Bad faith in this context is said to be conduct
violating community standards of decency, fairness or reasonableness." (Ibid.)
42
To the extent the trial court drew legal conclusions about policy obligations, de
novo review is appropriate. "Although an insurer's bad faith is ordinarily a question of
fact to be determined by a jury by considering the evidence of motive, intent and state of
mind, '[t]he question becomes one of law . . . when, because there are no conflicting
inferences, reasonable minds could not differ.' " (Dalrymple, supra, 40 Cal.App.4th 497,
511; Morris v. Paul Revere Life Ins. Co. (2003) 109 Cal.App.4th 966, 973, fn. 1
[reasonableness of an insurer's legal position depends on precedent and statute, posing
questions of law].)
The determination of the reasonableness of an insurer's contractual position takes
into account not only the rules of contract interpretation (e.g., construing ambiguity in
favor of insured), but also the given factual context in which the dispute arises. (Griffin
Dewatering Corp., supra, 176 Cal.App.4th 172, 208; Bank of the West v. Superior Court,
supra, 2 Cal.4th 1254, 1265 [language must be construed in context].) "However, the
question of whether there is an ambiguity in the first place is different. [N]othing
obligates insurance companies to pay 'noncovered' claims just because such a payment
will (obviously) benefit the policyholder." (Griffin Dewatering Corp., supra, at p. 208;
Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1148 [insurance companies do
not stand in a fiduciary relationship with policyholders, but that relationship may be
"akin" to a fiduciary one].)
It is well settled that "an insurer's erroneous failure to pay benefits under a policy
does not necessarily constitute bad faith entitling the insured to recover tort damages.
'[T]he ultimate test of [bad faith] liability in the first party cases is whether the refusal to
43
pay policy benefits was unreasonable.' [Citations.] In other words, 'before an [insurer]
can be found to have acted tortiously, i.e., in bad faith, in refusing to bestow policy
benefits, it must have done so "without proper cause." ' " (Opsal v. United Services Auto.
513.) The issues include the reasonableness of American Safety's policy interpretation,
and the effect of its claims handling that resulted in withholding of benefits due under the
policy.
B. Initial Legal Issue: Erroneous Policy Analysis
We first take note that the trial court did not find it was dispositive that even after
the summary adjudication ruling on the Concrete policy (i.e., that a defense duty was
owed to Pulte as an additional insured), American Safety continued to withhold a defense
as to each of the policies. However, the court did observe that American Safety had not
filed an appellate challenge to that ruling, which was consistent with Attorney Fisher's
testimony about its apparent overall strategy to pursue its own policy interpretation,
without obtaining further guidance from the courts (avoiding it by settling cases). The
court expressed a belief that such a continuing policy of denying a defense could be
viewed as putting the insurer's interests above those of the insured, by avoiding adverse
legal precedents. Here, as in McMillin, supra, 233 Cal.App.4th 518, 542, footnote 31, we
need not address the availability of the "genuine dispute doctrine" as a defense for the
insurer in a third party duty to defend context. (See Opsal, supra, 2 Cal.App.4th 1197,
1205-1206; Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1424 [law is
unclear on this point].)
44
In any event, the most basic policy interpretation questions in this case had already
been fully addressed in the breach of contract phase of trial, on the effect of the policy
language, both "liability arising from 'your work' " and " 'ongoing operations.' " The
court did not accept American Safety's contractual no coverage position, and it was
additionally required to examine whether that interpretation had been reasonable, for
purposes of determining the remaining bad faith liability issues. The court found it
significant that American Safety knew there were trial court decisions against its position
on the interpretation of ongoing operations (e.g., D.R. Horton, supra, 2012 U.S. Dist.
LEXIS 1881; Tri-Star Theme Builders, Inc. v. OneBeacon Insurance Co. (9th Cir. 2011)
426 Fed.Appx. 506 [Arizona case]; McMillin Construction Services, L.P. v. Arch
Specialty Insurance Company (S.D.Cal. 2012) 2012 U.S. Dist. LEXIS 8339; and Jaynes
Corp. v. American Safety Indem. Co. (D. Nev. 2012) 925 F.Supp.2d 1095, vacated
Dec. 2, 2014).
For example, in D.R. Horton, supra, 2012 U.S. Dist. LEXIS 1881, an unreported
case arising out of federal court in San Diego, American Safety was the defendant and
was well aware of its holding. The trial court's decision outlined the logical reasoning of
D.R. Horton, and its applicability in this factual context, as follows:
"Thus, if [the D.R. Horton] homes were built in a series so that one home was completed and then the subcontractor's ongoing operations continued on another house, and if there was an occurrence causing damage to the already-completed houses, then the occurrence potentially was during ongoing operations. This potential existed in the Large and Schaefer cases. The information available to ASIC at the time of the denials was that the work could have been ongoing at the time some of the houses were completed. Therefore, there was the possibility that the damage or occurrence
45
occurred while the subcontractor's operations were ongoing but after the house had been sold to one of the plaintiffs."
In addition, the trial court relied on Pardee, supra, 77 Cal.App.4th 1340, and ruled
that American Safety's interpretations were incorrect, as follows: "If ASIC's position is
correct, there would never be property damage coverage under the additional insured
endorsement, whether the occurrence happened during ongoing operations or after
completed operations." (Id. at p. 1359.) The court ruled that the policy was ambiguous
in referring to property damage, and the interpretation American Safety was using did not
properly account for the reasonable expectations of an additional insured. Moreover,
"ASIC was aware at the time it issued the endorsement that the contracts between Pulte
and the named insureds required that the named insureds name Pulte as an additional
insured, including completed operations. . . . The information available to ASIC at the
time of the tender of the claim was that Pulte had been named as an additional insured
and that the contract with the named insured required that the additional insured
endorsement cover completed operations. With that in mind, ASIC should have taken
into account the reasonable expectations of the additional insured in interpreting its
policy. ASIC did not do this and did not give equal consideration to its interests and its
insureds' interests."
With regard to bad faith, the trial court found it significant that American Safety,
by referring to the dates of the close of escrow for the homes and the policy periods, had
essentially conceded that the subcontractors had performed work on the project during
the effective periods of its own policies. Although many out-of-state authorities had been
46
discussed at trial on whether "ongoing operations" excluded coverage, American Safety
had not produced any California case that ruled in its favor. Also, when Fisher testified
about American Safety eventually prevailing in McMillin Construction Services, L.P. v.
Arch Specialty Insurance Company, supra, 2012 U.S. Dist. LEXIS 8339, she did not
reveal that the company succeeded because of its "project on file" clause there, not on
ongoing operations.
As to American Safety's reiterated claim that no relevant work had been done
during a relevant policy period, the trial court found it had unjustifiably ignored "the
possibility of an occurrence during the insured's ongoing operations as in D.R. Horton[,
supra, 2012 U.S. Dist. LEXIS 1881]." That approach, combined with the company
deciding to ignore "other adverse court decisions from Federal Courts in California and
Nevada and the reasoning of the Ninth Circuit, is not reasonable and is bad faith." As a
matter of policy interpretation, we conclude that the trial court's legal ruling that
American Safety did not have legitimate reasons for denying a defense to this additional
insured is well supported.
C. Evidence Regarding Claims Handling; No Proper Cause to Deny a Defense
The trial court's written decision from this phase of trial cited to numerous factors
that played a part in American Safety's decision to deny Pulte a defense to the
construction defect actions. These were drawn from testimony from its claims
representatives and corporate claims counsel, about how hundreds of additional insureds'
claims were routinely denied based on the restrictive policy interpretations offered. The
court observed, "The three adjusters who testified did not recall ever accepting an
47
additional insured tender." One of the claims adjusters testified that even if the property
damage occurred during ongoing operations, "ASIC still would not provide a defense
because there would be no coverage and no duty to defend because the suits were filed
after completion." Attorney Fisher testified about uniformly denying any AIE coverage
requests, based on "ongoing operations" only.
Documentary evidence was submitted about the refused tenders, showing the
terms of the various denial letters. Examination of those denial letters on the various
policies shows the trial court had ample reasons for concluding they are form letters,
rather than the product of any appropriate case-by-case analysis. For example, the letters
deny coverage on the basis of a supposed requirement that only "projects on file with the
Company" may be covered, even though only some of the Foshay policies and none of
the Concrete or Frontier policies contain any such language. The court said, "This shows
that claims were not being reviewed carefully, if at all. This is further evidence of bad
faith."
Although American Safety no longer argues the applicability of its policy
requirements on sole negligence, that reason was given for denials of the tenders. The
court found that was not a good faith ground to assert there was no potential for coverage,
because the standard construction defect action names many defendants and cross-
defendants and therefore sole negligence was not normally alleged in such an underlying
complaint. The court stated, "[t]o provide coverage of sole negligence only if sole
negligence is alleged, effectively means that no coverage would ever be provided under
an additional insured endorsement." Moreover, the court noted that a jury could find that
48
although many defects in the development were alleged, only one named insured's work
was actually defective and negligent. Accordingly, "the routine denial of coverage for
hundreds of tenders based on sole negligence shows a complete lack of analysis and is
evidence of bad faith. Such a conclusion is not reasonable if one were to analyze the
claims made in the [underlying construction defect] cases."14
As already discussed, American Safety made an unreasonable reading of its policy
language by focusing on the ongoing operations language, to the exclusion of other
relevant policy terms in the AIEs it drafted. The policy's ambiguous terms had to be
construed in favor of the reasonable expectations of the insureds. American Safety
inexplicably disregarded case law known to it, such as D.R. Horton, supra, 2012 U.S.
Dist. LEXIS 1881, which the court found would indicate there was a potential for
coverage even on a completed operations basis, because "[t]he information available to
ASIC at the time of the denials was that the work could have been ongoing at the time
some of the houses were completed. Therefore, there was the possibility that the damage
or occurrence occurred while the subcontractor's operations were ongoing but after the
house had been sold to one of the plaintiffs."
14 The court only generally discussed American Safety's assertion of the self-insured retention grounds for denial of a defense, and the confusion about how much of a defense Interstate was providing Pulte. American Safety also argued that no valid AIEs could be issued by brokers for the named insureds, but the court said that did not make any difference to a coverage determination. We need not discuss those issues as they are not dispositive with respect to the bad faith findings. 49
To the extent the denial letters claimed the faulty workmanship/work product
exclusions must apply, they were not supported by a reasonable policy interpretation.
There could have been a potential for coverage to damaged adjacent work or other
building components, compared to the work of Concrete, Frontier, or Foshay.
From all of the evidence, the court concluded American Safety's corporate claims
counsel and representative at trial, Jean Fisher, appeared to function as the final authority
for its decisions to deny coverage. The court evaluated her evidence as follows:
"Although she worked for companies controlled by ASIC and not directly for ASIC, no
one from ASIC ever disagreed with any of her decisions. [¶] Ms. Fisher was aware that
subcontractors used the additional insured endorsement to get work and that developers
require completed operations coverage. Nevertheless, it was her intent to deny completed
operations coverage with the language she drafted. She testified that developers are
unreasonable in believing they would receive a defense from ASIC under the additional
insured endorsement. [¶] The Court did not find Ms. Fisher candid. When asked
whether any court had ever ruled in ASIC's favor on ongoing operations, Ms. Fisher
replied that she could not recall. Obviously, had there been such a decision, Ms. Fisher
would have remembered it and ASIC would have used it to its benefit. [¶] . . . [¶] Ms.
Fisher stated that the adjusters were well trained and constantly given updates on the law.
The testimony of the three adjusters called in this case indicates otherwise, for example,
none of them understood Project on File, yet they used that term to deny coverage even
when it was not in the policy. [¶] When examined on the use of Project on File,
especially given that the adjusters were using that as a basis of denial in letters
50
supposedly approved by her and since the adjusters did not even know how to determine
if the project was on file, Ms. Fisher's testimony became very evasive."
The court made reasonable conclusions from all of the evidence that American
Safety was primarily looking out for its own interests in refusing to defend its additional
insureds. "Whether the Court considers the multiple tenders by Pulte, the hundreds of
denials of other additional insureds, as testified to by the adjusters, or merely the tenders
in this case, there is a clear pattern and practice of refusing to defend additional insureds
in construction defect cases." In light of Pulte's additional insured status and the notice it
gave to American Safety that it had been sued on wide ranging construction defect
theories, the failure to provide Pulte with a defense was unreasonable and without proper
cause. These actions were properly found to be in bad faith.
The court additionally evaluated the same evidence as providing a clear
and convincing showing of malice and oppression, and proceeded on the
punitive damages claims, as next discussed. (Civ. Code, § 3294.)
IV
PUNITIVE DAMAGES: ENTITLEMENT ISSUES ONLY
A. Applicable Standards
In this phase of trial, the court was considering whether the breach of the insurer's
duty to defend was not only unreasonable, so as to warrant tort damages, but also if the
breach was "so egregious that there is evidence of 'oppression, fraud or malice' " to
In ruling that an award of punitive damages was justified, the trial court's decision
stated that American Safety had demonstrated its "pattern and practice" of using every
conceivable argument to deny coverage, whether the arguments are weak or strong, valid
or invalid. Such conduct showed the company was primarily protecting its own interests
in refusing to defend its additional insureds in construction defect cases. Based on the
evidence given by Attorney Fisher and the adjusters she supervised in issuing hundreds
of other denial letters in this context, the court found that the company's upper
53
management and general counsel did not need to be consulted on these denials of tenders.
Rather, the evidence showed Ms. Fisher's "decisions ultimately determined corporate
policy in the area of additional insured endorsements and tenders of coverage under such
endorsements. Even though Ms. Fisher was not employed directly by ASIC, this
authority had been given to her by ASIC. ASIC cannot avoid responsibility by creating a
company to handle claims and allowing the company and its managing agent, Ms. Fisher,
to deny all AI claims. [¶] ASIC through its general counsel must have known of Ms.
Fisher's conduct and adopted and approved her conduct after it occurred. The pattern of
not accepting additional insured tenders has gone on for years and clearly was known to
the officers and managing agents of ASIC." (Civ. Code, § 3294, subd. (b).)
Effectively, American Safety had been issuing AIEs while "knowing that coverage
would never be honored and knowing that the additional insureds intended that they
would be receiving a defense if they were sued in construction defect cases." The court
concluded that this conduct was evidently done with the intent to cause injury to Pulte
and amounted to despicable actions that were done with a willful and knowing disregard
of Pulte's rights. Pulte was therefore required to use its own resources to defend itself in
construction defect cases. There were admissions at trial that other such additional
insureds had been provided a defense with a reservation of rights, while American Safety
was filing declaratory relief actions to determine the correctness of its position and
seeking return of the fees paid. This happened even though the financial condition
evidence showed American Safety had a surplus of over $1 million.
54
The court accordingly found there was clear and convincing evidence, as stated in
the judgment, that American Safety had inflicted economic harm on Pulte and this harm
"was the result of intentional malice, trickery, or deceit." The court found the standards
of Civil Code section 3294 had been satisfied, in that the denial letters included
misrepresentations about applicable or inapplicable policy provisions that amounted to
clear and convincing evidence of malice and oppression, and inexcusably showed "a
pattern of using exactly the same language in the letters whether the provisions applied or
not."
These substantive conclusions on Pulte's entitlement to receive punitive damages
from American Safety are supported by substantial evidence. However, after the
following discussion of the basis given for awarding Brandt fees in the amount of
$471,313.52, we shall turn to the related issues about the amount of punitive damages
awarded, $500,000. (Pt.VI, post.)
V
BRANDT FEES
The trial court issued its decision awarding Pulte Brandt fees of $471,313.52, plus
Brandt costs of $38,587. (White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 890
[such costs also allowable].) The judgment expressly states, "the law is clear that fee
agreements can be changed and the modification to the fee agreement between Plaintiff
and its counsel serves as the basis for the award of Brandt fees."
We emphasize that as to the contract damages we have previously discussed, the
trial court did not refer in the judgment or its decisions to the differing fee agreements
55
that Pulte had reached with its counsel. American Safety challenges only the amount of
the Brandt award as impermissibly based on a strategic or tardy posttrial modification of
the original contingency fee agreement.
A. Applicable Standards
Brandt allows an insured to recover attorney fees expended to enforce the policy,
when the insurer has withheld policy benefits in bad faith. Such recoverable fees may not
exceed the amount attributable to obtaining benefits due under the contract. (Brandt,
supra, 37 Cal.3d at pp. 817, 819.) Fees attributable to obtaining any portion of the award
in excess of the amount due under the policy are not recoverable. (Ibid.) Cassim, supra,
33 Cal.4th 780 requires such an allocation between Brandt and non-Brandt work, even
where there is a contingency fee agreement.
As explained in Track Mortgage Group, Inc. v. Crusader Ins. Co. (2002) 98
Cal.App.4th 857, 867-868, the practical effect of these rules is that the trial court can only
award such Brandt fees as were expended in enforcing the policy, but not those expended
in proving the insurer's bad faith. The parties must provide showings to aid the court in
segregating the fees and determining which were expended to compel payment of policy
benefits. (Ibid.) In that case, the billings could not be easily segregated, and the court
instead made a proportional estimate of what the case was worth "based upon the results,
based upon the complexity of the case, based upon the experience of counsel, and having
tried the case . . . and recognizing the issues and the sophistication that those issues
demanded . . . ." (Id. at p. 867.)
56
Cassim teaches us, "Defendants are protected from excessive Brandt fees in two
ways. First, as in any tort case, the plaintiff bears the burden of proving by a
preponderance of the evidence both the existence and the amount of damages
proximately caused by the defendant's tortious acts or omissions. [Citation.]
Accordingly, on remand, plaintiffs will bear the burden of demonstrating how the fees for
legal work attributable to both the contract and the tort recoveries should be apportioned.
[Citation.] [¶] Second, trial courts retain discretion to disregard fee agreements that
appear designed to manipulate the calculation of Brandt fees to the plaintiff's benefit. For
example, a client who enters a fee agreement in an insurance bad faith case in which an
attorney will take 40 percent of the entire compensatory damage award as his fee for
working to obtain the contract recovery, and agrees to work on the tort recovery pro
bono, cannot expect to receive Brandt fees of 40 percent of the entire compensatory
award." (Cassim, supra, 33 Cal.4th 780, 813.)
In the case of a contingency fee arrangement, Cassim, supra, 33 Cal.4th 780,
explains the proper method of calculating Brandt fees. The trier of fact must determine
the percentage of the legal fees paid to the attorney that reflects the work attributable to
obtaining the contract recovery:
"Some outer limits are immediately discernible. First, no portion of legal fees attributable to the punitive damage award can be recovered as Brandt fees. Brandt's focus was solely on ensuring that attorney fees for contract recovery did not diminish a plaintiff's compensatory damages award, and did not concern diminution of the punitive damages award, which is essentially a windfall for plaintiffs that the law permits for public policy reasons. Second, the Brandt fees can never exceed the legal fees for the combined tort and contract recovery; in most cases the amount will be far less. [¶] To
57
determine the percentage of the legal fees attributable to the contract recovery, the trial court should determine the total number of hours an attorney spent on the case and then determine how many hours were spent working exclusively on the contract recovery. Hours spent working on issues jointly related to both the tort and contract should be apportioned, with some hours assigned to the contract and some to the tort. This latter figure, added to the hours spent on the contract alone, when divided by the total number of hours worked, should provide the appropriate percentage." (Cassim, supra, 33 Cal.4th at p. 812.)
In general on attorney fee agreements, "[i]t is axiomatic that the parties to an
agreement may modify it. The precise meaning of terms used in a contract is that which
is understood by the parties to the contract. The court will not impose its own
interpretation at variance with the parties' intention. Here, there is no dispute between
plaintiff and her attorney concerning what they both intended when the contract was
written. A contingency fee contract may be modified by the parties at any time during
the subject litigation." (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 519.)
In Track Mortgage Group, Inc., supra, 98 Cal.App.4th at pages 867 to 868, the
appellate court applied an abuse of discretion standard and upheld the trial court's
determination on what was a reasonable Brandt fee for enforcing the contract, based upon
stated factors and the result. (Id. at p. 868.) It relied on familiar principles, " 'The trial
court is the best judge of the value of professional services rendered in its court . . . .'
[Citation.] The only proper basis for reversal of a fee award is an award so large or small
that it shocks the conscience and suggests that passion or prejudice influenced the result."
(Ibid.)
58
B. Proceedings at Trial
The Brandt fees were vigorously litigated. It was not disputed that Pulte's original
fee arrangement from 2013 was to pay its attorneys on a contingency basis. The trial
court held several hearings at which Brandt fees were discussed in terms of American
Safety's argument the Pulte fee agreement was manipulated posttrial. In December 2015,
shortly after the court issued its substantive decision on entitlement to contract damages
and to bad faith recovery, the court held a scheduling hearing and admitted the Pulte
contingency fee agreement (a letter of April 5, 2013) into evidence.
At a subsequent hearing on January 15, 2016, the court estimated that as of that
time, Pulte's contract damages had been proven to be about $400,000 ($421,878.15 was
being claimed, including prejudgment interest). The court inquired whether a one-third
contingency fee would accordingly amount to a de minimis award (about $150,000).
Pulte's counsel responded that the actual figure it was claiming for the expense of
pursuing the contract claims, as shown by its billing records, was more like $680,000 in
attorney fees, and argued that none of the trial witnesses had said that the amount was
unreasonable. American Safety's attorney responded that the court would still be
applying two ratios: the one-third contingency ratio set by the fee agreement, and the
second ratio as set by allocating the tort versus contract recovery. The court agreed that
"whatever I found would impact it if I use a Cassim formula."
At that point, American Safety's calculations were that Pulte could obtain only
$174,401.44 in fees incurred directed toward obtaining benefits under the contract. That
would also be its proposed base amount for calculation of punitive damages purposes.
59
Later in the proceedings, American Safety revised its calculations to state that the Brandt
fees should be around $371,000.
Next, at the January 15, 2016 hearing, the court observed that this was not a case
in which an individual insured would be recovering large emotional distress damages, but
instead it was focused on corporate conduct. The court outlined the procedure to be
followed for the remaining portion of trial: "Notwithstanding my findings of what the
insurance company did, I'm only focusing on the damages part. . . . And so I'm just --
I'm struggling with how to make -- to, as I must, follow the direction of the Supreme
Court [Cassim] and figure out how it applies in this case. [¶] So I need to take it under
submission because I need to look at allocations. And then after I do that, I need to
decide whether I'm going to use the Cassim-type formula or some other basis for the
calculation."
Pulte then filed, along with its trial brief filed February 9, 2016, declarations from
its house counsel and third party claims administrator about its recent agreement to
modify the prior attorney fee arrangement, such that "Pulte has now incurred and paid all
attorneys' fees and costs in this action through January 31, 2016, on an hourly basis at the
rates reflected on the invoice submitted to the Court during trial (Exhibit 453) and
pursuant to the supplemental invoices submitted herewith." Pulte contended that such a
modification to the fee agreement was necessary "[in] order to avoid having Pulte and/or
its counsel deprived of the full measure of the reasonable fees and costs actually required
to pursue this contentious action." Pulte cited to cases that had recognized some parties'
rights to modify a prior contingent fee arrangement, such that a subsequent award based
60
on a reasonable hourly rate is allowable. (Merced Irrigation Dist. v. Woolstenhulme
(1971) 4 Cal.3d 478, 505 [where a modified agreement was reached, "the trial court could
properly find that the arrangement was no longer a purely contingent one"]; Vella v.
Hudgins, supra, 151 Cal.App.3d 515, 519.) Pulte now claimed its total attorney fees and
costs incurred were $769,101.80, as shown by its records of billings. Once the bad faith
attorney fees and costs portion ($123,589.20) was properly deleted, Pulte argued the
Brandt fees and costs should amount to $645,463.10. American Safety objected that the
new declarations were posttrial evidence and should not be considered.
The trial court began the February 11, 2016 hearing by characterizing the issues
surrounding the Brandt fees. "I guess the elephant in the room to address first is the
change in the fee agreement. So let's talk about that." After some colloquy, the court
determined that the respective calculations and proposals by the parties were as follows.
American Safety suggested that the Brandt fees should be about $371,000, while Pulte
requested $645,000 and had submitted invoices to show the time spent between May
2013 and October 2015. With those two positions in mind, the trial court stated that it
understood the arguments and principles in Cassim, "but I'm going to allow the actual
fees incurred." The court observed that trial took place in phases: "And I don't think that
the evidence in the punitive damage portion or the arguments would be different
depending on whether I award 300- or 600,000 because you're arguing about ratios and
that sort of thing."
The court rejected American Safety's argument that the recent change in Pulte's
fee agreement was "nothing but a manipulation of the process, and neither Pulte nor [it's
61
law firm] should be rewarded for it." The court responded with this ruling, "All right. I
think the law is clear that fee agreements can be changed. There are ethical issues. And
typically it's the client that challenges and typically the change is from an hourly to a
contingency at the last minute by the lawyer and that's challenged, but when there's an
anticipation of a very large settlement or verdict. That is not before me. And it looks like
Mr. Laramie is an attorney; so that does seem proper. [¶] The courts consistently talk
about the fees incurred, which is the dilemma, or whatever you want to call it, addressed
by Cassim and some of the other cases where the issue is what fees are or will be incurred
by the plaintiff to obtain the contract benefits. It is before the Court, and admittedly late,
but it's now clear that Pulte has incurred these fees, whatever it is, $645,000 of fees, and I
think I have to therefore consider that. So I'm going to base my award of Brandt fees on
the fees incurred. What I want to talk about now is allocation."
Following the hearing, the court issued its decision on Brandt attorney fees and
punitive damages. The trial court found that neither of the proposed tort/contract
allocations offered by the parties was reliable and the court was going to make its own
percentage allegations, based on the hourly billings. The court was able to reach a
determination that the Brandt fees due for the pretrial portion of trial ($480,000 billed)
amounted to approximately $396,875 in Brandt fees, once appropriate deductions were
made. Since most of the trial period had been spent on tort matters, only $75,000 out of
the $200,000 billed for trial was recoverable as Brandt fees. The total to be awarded was
$471,313.52.
62
C. Analysis of Award
American Safety objects to the conclusions reached by the trial court. Under its
preferred analysis, American Safety would itemize as follows: Using a weighted average
of 72 percent of all fees as attributable to contract claims (the Brandt fee work, for both
pretrial and trial services), the court should have set the total contingent fee at $428,840.
On that basis, American Safety would apply Cassim, supra, 33 Cal.4th 780, and reduce
the total contingent fee in the same contract/tort proportion, which would translate to
Brandt fees of $308,765. American Safety denotes the existing award to be a $162,549
increase over the contingent fee calculation.
We are aware that the trial court's award of Brandt fees was made after extensive
briefing and argument between December 2015 and February 2016, about the reasonable
value of services attributed to the causes of action for which Brandt attorney fees were
allowed. Pulte did not explain exactly when it decided to modify its fee agreement with
counsel, except for providing declarations dated February 9, 2016, after trial, from its
house counsel Laramie and its third party claims administrator Macy. Laramie stated
Pulte had decided more compensation for counsel was needed, in response to significant
work made necessary by the opponent's "sharp tactics" throughout the litigation, and the
results achieved by counsel. Macy reviewed invoices and wrote the checks.
We have serious concerns that this change in Pulte's fee agreement was apparently
"designed to manipulate the calculation of Brandt fees to the plaintiff's benefit."
(Cassim, supra, 33 Cal.4th at p. 813.) Even accepting that the trial court has broad
discretion in the area of fee awards, this was not a case in which the type of contractual
63
negotiations between attorney and client is the main concern. For example, the court in
Vella, in approving a renegotiated fee agreement, was focusing on the understanding of
the parties to the contract, and stated, "[t]he court will not impose its own interpretation at
variance with the parties' intention," measured by the time that the contract was written.
(Vella v. Hudgins, supra, 151 Cal.App.3d at p. 519.) The outcome of allowing this
contingency fee contract to be modified by the parties, after trial, primarily affects not
their own understandings but instead American Safety, which is now on the hook for
more than it anticipated.
The trial court's understanding that fee arrangements can normally be changed did
not accurately take into account the strict principles of Brandt, which are to ensure that
such a fee award reflects only those fees "attributable to the attorney's efforts to obtain
the rejected payment due on the insurance contract." (Brandt, supra, 37 Cal.3d at p. 819,
cited in Cassim, supra, 33 Cal.4th at p. 813.) Brandt fees, as tort damages against the
insurer, are premised on the unreasonable denial of policy benefits and the consequent
fees incurred. (Griffin Dewatering Corp., supra, 176 Cal.App.4th at p. 220.) Because of
the extent of exposure American Safety had to any kind of liability throughout trial, the
fee arrangement in effect during trial should have controlled over the recent changes to it.
Under these standards, we cannot find the trial court took all the appropriate factors into
account in awarding Brandt fees. Although its decision to award fees as damages
pursuant to Brandt was substantively justified, we must remand the case to the trial court
for recalculation of the proper amount on the original contingency basis.
64
VI
PUNITIVE DAMAGES AWARD: AMOUNT ONLY
In determining whether a punitive damages award is excessive under California
law, the courts consider factors such as the reprehensibility of the defendant's conduct,
the amount of compensatory damages or actual harm suffered by the plaintiff, and the
financial condition of the defendant. (Bullock v. Philip Morris USA, Inc., supra, 159
Cal.App.4th at p. 690, fn. 18; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308,
1337.) The court addressed each of these factors in its decision, and awarded $500,000 in
punitive damages, noting this was a roughly proportional amount on a one-to-one ratio to
the compensatory damages (calculated by the court as the Brandt fees in the amount of
$471,313.52, together with Brandt costs of $38,587). We find no fault with the court's
consideration of the appropriate punitive damage factors, as above.
However, in view of the factual showing about the nature of the fee arrangement
in effect during trial, a differently calculated award of Brandt fees should be rendered on
remand. Under the principles discussed above, the trial court must adjust the punitive
award accordingly to maintain the approximate one-to-one ratio. (See Nickerson v.
Stonebridge Life Ins. Co. (2016) 63 Cal.4th 363, 368 ["In determining whether a punitive
damages award is unconstitutionally excessive, Brandt fees may be included in the
calculation of the ratio of punitive to compensatory damages, regardless of whether the
fees are awarded by the trier of fact as part of its verdict or are determined by the trial
court after the verdict has been rendered."].)
65
DISPOSITION
The judgment is reversed in part, solely with respect to the order awarding Brandt
fees and the resultant punitive damages award, with directions to the trial court to allow
such further proceedings as necessary to recalculate the award in accordance with Pulte's
originally effective contingency fee agreement, and then to impose a like amount of
punitive damages; the balance of the judgment is affirmed, including the entitlement
orders on compensatory and punitive damages. Costs on appeal to Pulte.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
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AI Brief
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Holding. The court held that American Safety's additional insured endorsements created ambiguities regarding coverage for construction defect lawsuits, thereby triggering a duty to defend, and that the insurer's subsequent denial of coverage constituted bad faith. However, the court reversed the award of attorney fees under Brandt v. Superior Court because the trial court abused its discretion by allowing a post-trial shift from a contingency to an hourly fee arrangement to increase the award.
Issues
Did the additional insured endorsements create a potential for coverage in construction defect litigation, triggering a duty to defend?
Did the insurer's denial of a defense constitute bad faith?
Was the award of punitive damages proportional to the compensatory damages?
Did the trial court abuse its discretion in awarding attorney fees under Brandt v. Superior Court based on a post-trial change in fee agreements?
Disposition. Affirmed in part and reversed in part with directions.
Quotations verified verbatim against the opinion
“the language of American Safety's additional insured endorsements on the underlying insurance policies created ambiguities on the potential for coverage in the construction defect lawsuits, thus requiring it to provide Pulte with a defense”
“The trial court's subsequent decision that American Safety's failure to do so was unreasonable and in bad faith is supported by substantial evidence.”