Judge: Keri G. Katz, Case: 37-2019-00012784-CU-IC-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Insurance Coverage Motion Hearing (Civil) 37-2019-00012784-CU-IC-CTL APR CONSTRUCTION INC VS INTERNATIONAL INSURANCE COMPANY OF HANNOVER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court rules as follows on Defendant/Cross-Complainant HDI Global Specialty SE's motion for prejudgment interest.

HDI brings this motion for non-discretionary prejudgment interest pursuant to CC § 3287(a). This section provides: (a) A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.

Following this court's Decision and Proposed Judgment After Trial on Cross Complaint, awarding HDI $308,137.08 in reimbursement from APR for the costs and fees incurred in defending APR in the Two Sites Lawsuit and Three Sites Lawsuit, HDI now seeks prejudgment interest on the amounts paid by HDI to defend APR in these lawsuits. The court is persuaded by the analysis of California law in Evanston Ins. Co. v. OEA, Inc. (9th Cir. 2009) 566 F.3d 915 that the award of prejudgment interest to HDI is proper in this case. Similar to the circumstances in Evanston, this court's Decision concludes that HDI was not obligated to defend and indemnify ADR in the Two Sites Lawsuit and the Three Sites Lawsuit and that HDI is entitled to reimbursement of sums paid to defend APR in these lawsuits. The court finds such circumstances support the award of prejudgment interest under CC § 3287(a).

The court is not persuaded by any of the arguments APR raises in opposition. The liability issues APR raises as to whether APR consented to settlement of the Two Sites Lawsuit, whether APR was adequately represented and whether APR's counsel had a conflict of interest, are irrelevant. The critical issue is whether the extent of APR's liability – i.e., the amount of claimed damages – was 'certain, or capable of being made certain.' There is no evidence that APR ever contested the amount of defense fees paid by HDI. APR fails to provide any authority for its argument that CC § 3287(a) only applies in instances of 'liquidated damages.' As the court finds CC § 3287(a) applies, the court finds APR fails to establish that the discretionary prejudgment interest provision of CC § 3287(b) applies.

The court is also not persuaded by APR's proposal that prejudgment interest be calculated from the date this court granted HDI's motion for summary judgment against APR (August 19, 2022). As in Evanston, prejudgment interest is to be calculated as of the date HDI made payment towards APR's defense.

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3029244  4 CASE NUMBER: CASE TITLE:  APR CONSTRUCTION INC VS INTERNATIONAL INSURANCE  37-2019-00012784-CU-IC-CTL Evanston, 566 F.3d at 920. The Declaration of Limor Lehavi in Support of Motion for Prejudgment Interest calculates interest on this basis. The court agrees in principle with the interest calculation proposed by HDI. However, as set forth in the Decision, the amount of the judgment was calculated by deducting sums paid by Defendant Colony Insurance Company to HDI ($154,919.27 on the Two Sites Lawsuit and $49,341.03 on the Three Sites Lawsuit). The Lehavi declaration does not address the issue of when HDI received payment(s) from Colony and the effect of such payment(s) on the interest calculation. The court orders HDI to submit a revised calculation that takes into consideration payments received from Colony.

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