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The court held that plaintiffs were entitled to reasonably believe that defendants were going to undertake coverage and intended to waive any defenses and that the insured was induced to rely on the insurers' apparent position that they intended to waive defenses. The attachments are the “schedules” and “endorsements.” General sections A and B of the policy provide in pertinent part:“A. On December 27, 1995, the trial court subsequently granted plaintiffs' petition for further relief in the form of a money judgment and entered judgment in favor of all plaintiffs, except Larry Gabriel, for $5,224,254.72. It is also well established that this rule of construction is applicable only when the policy language is found to be unclear. “A policy provision is ambiguous when it is capable of two or more constructions, both of which are reasonable.” Producers Dairy, 41 Cal.3d at 912, 718 P.2d at 924-25, 226 Cal. The Policy This policy * * * is a contract of insurance between you (the employer named in item 1 of the Information Page) and us (the insurer named on the Information Page). You are insured if you are an employer named in item 1 of the Information Page. The defendants in the instant case had a duty to defend the Gabriel claim because the facts in the underlying complaint gave rise to a potential for coverage under the policy. California courts have interpreted the provision to preclude coverage for acts such as child molestation, which are deemed to be inherently intentional, wrongful and harmful.
BACKGROUNDOn October 3, 1985, Larry Gabriel, a teacher at Crespi High School in California, filed a five-count complaint in the superior court of the State of California for the County of Los Angeles for wrongful termination against Fathers of the Order of Mount Carmel, Inc., Crespi High School, Carmelite Father John Knoernschild, and Carmelite Father Joe Atcher.It is from the orders of November 6, 1995 and December 27, 1995, that defendants appeal. ANALYSISIDefendants first contend that the trial court erred in holding, as a matter of law, that the plaintiffs, who were named as insureds in the underlying action, were insureds under the workers' compensation and employers' liability policy. Producers Dairy, 41 Cal.3d at 912, 718 P.2d at 924-25, 226 Cal. The only agreements relating to this insurance are stated in this policy. If that employer is a partnership, and if you are one of its partners, you are insured, but only in your capacity as an employer of the partnership's employees. When Gabriel's complaint was first tendered, an employee was permitted, under California law, to sue an employer for negligent infliction of emotional distress resulting from wrongful termination of employment. Defendants argue that if the plaintiffs are not “insureds,” there is no duty to defend that can be breached, nor can defendants waive their right to deny or be estopped from denying coverage. Sentry Insurance Co., 41 Cal.3d 903, 912, 718 P.2d 920, 924, 226 Cal. Item 1 of the information page designates the name of the insured as “Society of Mt. Zurich Insurance, 65 Cal.2d 263, 419 P.2d 168, 54 Cal. 104, the insured had been sued for allegedly having “wilfully, maliciously, brutally and intentionally assaulted” the plaintiff. Gabriel's complaint included a count based on negligent infliction of emotional distress and, therefore, was potentially within the terms of the policy. The agent explained why the action was not covered and stated in pertinent part:“Liability policies, as in Continental's, contain employee exclusions because such coverage is normally provided through separately procured employer's liability insurance. In the instant case, defendants are estopped from asserting coverage defenses because of their conduct (i.e., their failure to inform the plaintiffs that they would not defend the Gabriel claim) subsequent to their issuance of the insurance contract. Canadian Indemnity Co., 61 Cal.2d 638, 394 P.2d 571, 39 Cal. 731, (1964)(recovery under a subsequent estoppel does not offend public policy). Continental protects against liability to third parties, such as invitees, visitors or consumers who are not employees of the society of Mount Carmel; coverage for employee related injuries and claims is available through the Society's Workers Compensation [sic ] carrier, which ordinarily protects not only against employee's compensation claims, but against their tort actions as well. Accordingly, none of the reasons for the prohibition of the indemnification of punitive damages are contravened by our decision here that defendants wrongfully refused to defend plaintiffs in the Gabriel suit. In response to defendants' cross-motion, plaintiffs conceded that defendants were entitled to summary judgment on count II of the second amended complaint with respect to the CGL and umbrella policies. If, in fact, there's an ambiguity here, I think that ambiguity must be resolved in favor of the insured.”We find no error in the trial court's analysis.
On November 6, 1995, the trial court granted summary judgment in favor of defendants on count II of the second amended complaint and in favor of plaintiffs on count I. The workers' compensation and employers' liability policy consists of general coverage provisions followed by several pages of attachments. Plaintiffs sought a defense in connection with Gabriel's wrongful termination action as well as attorney fees and costs for the defendants' alleged bad-faith refusal to defend the claims and allegations in the Gabriel complaint. On September 15, 1989, defendants moved to dismiss the declaratory complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) based on plaintiffs' failure to join Larry Gabriel as a necessary party and Crespi High School's lack of standing to sue for the reason that it was not a legal entity. On November 6, 1989, the trial court denied defendants' motion to dismiss for failure to join a necessary party but granted their motion with respect to Crespi High School, striking it as a party to this action. Plaintiffs moved for summary judgment on January 22, 1990, asking the trial court to find in its favor that the defendants had a duty to defend the underlying Gabriel action. On May 23, 1991, the trial court denied plaintiffs' motion for leave to file the complaint and on July 2, 1991, denied plaintiffs' motion to reconsider. On appeal, plaintiffs sought a declaration of their rights as insureds and defendants' liabilities as insurers. Defendants filed an answer denying all allegations of coverage and wrongful conduct. Section 533 does not, however, bar coverage for conduct that may be wrongful but is not intentional or willful from the standpoint of the insured. Thus, section 533 is inapplicable here and defendants were obligated to provide a defense.