Judge: Elaine W. Mandel, Case: 21SMCV01051, Date: 2023-01-26 Tentative Ruling

Case Number: 21SMCV01051    Hearing Date: January 26, 2023    Dept: P

Tentative Ruling

Revello Drive, LLC v. Certain Underwriters at Lloyds London, Case No. 21SMCV01051

Hearing Date January 26, 2023

Supplemental Briefing on Lloyd’s Motion for Summary Judgment

The court heard Lloyd’s motion for summary judgment on October 26, 2022 and issued a tentative ruling denying it. After extensive oral argument, the court granted Revello’s request for additional briefing. The court issued a tentative ruling again denying summary judgment on the grounds that there was a triable issue of fact regarding the issue of collapse. After oral argument, the court again continued and requested further supplemental briefing as to disputed fact #3 stating defendant’s administrator allegedly told plaintiff the remaining portion of the balcony still attached to the property should be “professionally secured,” section E8A2 of the policy stating “[a] building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse,” and the meaning of “caving in” vs. “collapse.”

Lloyd’s objects that plaintiff’s brief was untimely filed. The court’s December 2, 2022 minute order states briefs were to be exchanged on January 17, 2022. The objection is OVERRULED.

An insurer “has the right to limit coverage of a policy issued by it and when it does so the plain language of the limitation must be respected.” Vargas v. Athena Assurance Co. (2001) 95 Cal.App.4th 461, 467.

Lloyd’s notes plaintiff admits a portion of the balcony is non-collapsed and cites policy language that “a part of a building that is standing is not considered to be in a state of collapse even if it has separated from another part of the building . . . any part of a building is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion.” Lloyd’s brief pgs. 3-5. Lloyd’s argues this is unambiguous—a portion of the balcony is still standing, so it is not in a state of collapse and is not covered. Lloyd’s argues ruling for plaintiff would improperly rewrite the policy to cover “imminent collapse.” Lloyd’s also disputes plaintiff’s argument that a “caving-in” process taking months is covered, arguing the word “abrupt” in the policy covers the phrase “caving-in.” Id. pg. 7.

At oral argument, Lloyd’s conceded the balcony is a single balcony, not separate balconies. That balcony collapsed, which is undisputed. Some portion of the balcony is still attached to the property because of plaintiffs’ shoring-up efforts. The balcony is not “in danger” of collapse per the policy; it has collapsed. This creates a triable issue of fact as to whether Lloyd’s improperly denied coverage for a collapse. The court’s prior tentative ruling stands. DENIED.