IKOLA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2009-00124578)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Gregory Munoz, Judge. Reversed.

Law Offices of Paul B. Sink III and Paul B. Sink III for Plaintiff and Appellant.

Weston & McElvain, Aaron C. Agness and Patricia A. Daza for Defendant and Respondent.

Plaintiff Rack N Cue Billiards, Inc. (Rack N Cue), appeals from summary judgment for defendant The Burlington Insurance Company (the insurer). Rack N Cue contends the insurer failed to show it owed no duty to defend a negligence suit. Rack N Cue asserts the suit arose from concurrent proximate causes, including one potentially covered by the policy: its allegedly negligent failure to replace a plate glass window. We agree the insurer is not entitled to summary judgment, and reverse.

FACTS

Rack N Cue, a pool hall in Stanton, Californa, obtained a commercial general liability policy from the insurer. The insurer promised to "pay those sums that [Rack N Cue] becomes legally obligated to pay as damages because of 'bodily injury' . . . to which this insurance applies." The insurer also promised to "defend [Rack N Cue] against any 'suit' seeking those damages." The policy covered only those bodily injuries "caused by an 'occurrence.'" It defined "'Occurrence'" as "an accident."

The policy contained an endorsement entitled "EXCLUSION — ASSAULT OR BATTERY." It provided, "This insurance does not apply to: [¶] a. Expected Or Intended Injury, Or Assault Or Battery [¶] 'Bodily injury' . . . : [¶] (1) Expected or intended from the standpoint of any insured; or [¶] (2) Arising out of assault or battery . . . ."

Rack N Cue was sued for premises liability and negligence in 2007. The plaintiff in the underlying suit alleged he was injured at the pool hall after two other patrons started fighting. One patron "violently shoved another . . . into Plaintiff, causing Plaintiff to crash into a plate glass window owned by [Rack N Cue], which shattered and caused bodily injury."

The plaintiff alleged Rack N Cue "was negligent in that: [¶] (1) it had previously expelled some of the fighters for past violent conduct, yet allowed them to again patronize the establishment; and [¶] (2) it failed to replace the plate glass widows prior to the incident . . . , despite past violent occurrences happening at the same location, such as the one herein."

In the same complaint, the plaintiff sued the two fighting patrons for battery. He alleged "[a] willing participant in the fight . . . violently, and intentionally, shoved another willing participant in the fight . . . into Plaintiff, causing Plaintiff to crash into a plate glass window owned by [Rack N Cue]." He further alleged, "Although [the patrons] may not have intended to harm Plaintiff, their intentions with respect to each other during the fight is transferred to Plaintiff under the doctrine of transferred intent. [¶] Both [patrons] intended to cause a harmful or offensive contact with the person of another, or an imminent apprehension of such contact."

The insurer declined to defend Rack N Cue; Rack N Cue sued the insurer for breach of contract and other claims. According to Rack N Cue's complaint, the plaintiff had "alleged he suffered personal injury in the form of a severe laceration to his left forearm as a result of being pushed through a plate glass window at [the pool hall]. [The plaintiff] alleged [Rack N Cue] was negligence [sic]in failing to maintain the premises in a safe condition." Rack N Cue alleged a reasonable investigation would have caused the insurer to learn (1) "[t]he injury did not occur as a result of an intentional assault and battery," (2) "neither an assault nor battery took place on the premises" because the fight was "totally consensual in nature," and (3) the plaintiff "contended negligence on the part [of Rack N Cue] on a theory of premises liability for maintaining a defective plate glass window, by further reason of which the injury was neither occasioned by an assault no[r] battery."

The insurer moved for summary judgment. It contended the plaintiff's injury was not caused by an occurrence because the pool hall fight involved intentional acts, not accidents. It further contended the assault or battery exclusion precluded coverage. It asserted, "As the battery on [the plaintiff] was undoubtedly the basis for the underlying action, the fact that the underlying action also includes separate negligent acts by Rack n Cue cannot avoid the exclusion. Those alleged acts of negligence arose out of the battery committed by the [patrons]." In opposition, plaintiff largely maintained the pool hall fight was "voluntary mutual consent" — not an assault or battery — and the patron's contact with the plaintiff was accidental. The court granted the insurer's motion and entered judgment for it.

DISCUSSION

On appeal, Rack N Cue reasserts its claims that triable issues existed as to (1) whether the pool hall fight was a consensual boxing match, precluding application of the assault and battery exclusion, and (2) whether the plaintiff was pushed through the window due to an accident (i.e., an occurrence).

Rack N Cue also offers a new theory. It contends triable issues exist as to whether its alleged negligence in failing to replace the plate glass window was a concurrent cause of the plaintiff's injury. (See, e.g., State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 104-105 (Partridge).)If so, the policy potentially covered the negligence suit regardless of whether the pool hall fight constituted an occurrence or an assault. Rack N Cue adequately alleged this theory in its complaint and the insurer addressed it in its summary judgment motion, though Rack N Cue did not assert it in opposition. Both parties briefed the issue thoroughly on appeal. We exercise our discretion to reach it.

An Insurer's Duty to Defend and the Concurrent Cause Doctrine

"'[A]n insurer has a duty to defend an insured if it becomes aware of, or if the third party lawsuit pleads, facts giving rise to the potential for coverage under the insuring agreement. [Citations.]' [Citation.] The insurer must defend any claim that would be covered if it were true, even if it is 'groundless, false or fraudulent.' [Citation.] 'Implicit in this rule is the principle that the duty to defend is broader than the duty to indemnify; an insurer may owe a duty to defend its insured in an action in which no damages ultimately are awarded. [Citations.]' [Citation.] 'Thus, when a suit against an insured alleges a claim that potentially could subject the insured to liability for covered damages, an insurer must defend unless and until the insurer can demonstrate, by reference to undisputed facts, that the claim cannot be covered. In order to establish a duty to defend, an insured need only establish the existence of a potential for coverage; while to avoid the duty, the insurer must establish the absence of any such potential. [Citation.]' [Citation.] Doubts concerning the potential for coverage and the existence of duty to defend are resolved in favor of the insured." (Palp, Inc. v. Williamsburg National Ins. Co. (2011) 200 Cal.App.4th 282, 288-289 (Palp).)

"'[W]hether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy' [citation] and extrinsic facts 'known by the insurer at the inception of the third party lawsuit . . . .' [Citation.] The insurer's defense duty is obviated where the facts are undisputed and conclusively eliminate the potential the policy provides coverage for the third party's claim." (Palp, supra, 200 Cal.App.4th at p. 289.)

"An insurer is entitled to summary judgment that no potential for indemnity exists if the evidence establishes no coverage under the policy as a matter of law. [Citation.] '"'We apply a de novo standard of review to an order granting summary judgment when, on undisputed facts, the order is based on the interpretation or application of the terms of an insurance policy.'"'" (Palp, supra, 200 Cal.App.4th at p. 289.) "An insurance policy's coverage provisions must be interpreted broadly to afford the insured the greatest possible protection, while a policy's exclusions must be interpreted narrowly against the insurer." (Id. at p. 290.)

What happens if the third party sues the policy holder for "an accident caused jointly by an insured risk . . . and by an excluded risk"? (Partridge, supra, 10 Cal.3d at p. 102.) Is there coverage because one cause is covered? Is there no coverage because one cause is not covered?

The California Supreme Court resolved this dilemma in favor of coverage. "[W]hen two such risks constitute concurrent proximate causes of an accident, the insurer is liable so long as one of the causes is covered by the policy." (Partridge, supra, 10 Cal.3d at p. 102.) The concurrent cause doctrine is now settled hornbook law. (See, e.g., Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2011) ¶ 7:218, p. 7A-98 (rev. #1 2011).)

The concurrent cause doctrine avoids narrowly restricting coverage only to "the 'prime,' 'moving,' or 'efficient,' cause of the accident." (Partridge, supra, 10 Cal.3d at p. 104.) Instead, it broadly extends "coverage under a liability insurance policy . . . to an insured whenever an insured risk constitutes simply a concurrent proximate cause of the injuries. That multiple causes may have effectuated the loss does not negate any single cause; that multiple acts concurred in the infliction of injury does not nullify any single contributory act." (Id. at pp. 104-105, fn. omitted.)

The doctrine does have one limitation: the covered and excluded causes must be independent of each other. In Partridge, a negligently modified hunting gun accidently fired during negligent off-road driving, injuring a passenger. (Partridge, supra, 10 Cal.3d at p. 98.) The court held the homeowner's policy covered the accident because it covered the negligent modification, even though the policy excluded coverage for the negligent driving. (Id. at p. 97.) It noted "both causes were independent of each other: the filing of the [gun's] trigger did not 'cause' the careless driving, nor vice versa. Both, however, caused the injury. In traditional tort jargon, both are concurrent proximate causes of the accident, the negligent driving constituting an intervening, but non-superseding, cause of the accident. [Citation.] If committed by separate individuals, both actors would be joint tortfeasors fully liable for the resulting injuries. Moreover, the fact that both acts were committed by a single person does not alter their nature as concurrent proximate causes." (Id. at p. 104, fn. 10.)

The Insurer Has Not Shown No Triable Issues Exist as to Whether the Alleged Negligent Failure to Replace the Window Was a Concurrent Cause of the Plaintiff's Injury

Thus, the insurer had a duty to defend Rack N Cue if the plaintiff alleged an independent, concurrent proximate cause of his injury that was potentially covered by the policy. (See Partridge, supra, 10 Cal.3d at pp. 104-105; see also Palp, supra, 200 Cal.App.4th at pp. 288-289.) Here, the policy provides coverage for "'bodily injury'" "caused by" "an accident." The insurer has not disputed (1) the plaintiff alleged a bodily injury, (2) the plaintiff alleged Rack N Cue negligently failed to replace the plate glass window, and (3) negligently failing to replace the window would constitute an accident.

Instead, the insurer disputes Rack N Cue's alleged negligence in failing to replace the window constitutes an independent concurrent proximate cause of the plaintiff's injury. It asserts "two separate acts of negligence were not alleged" in the negligence suit. It contends the pool hall fight was "the direct cause of [the plaintiff] being shoved into the plate glass window. The impact with the plate glass window was a direct result of the intentional torts. As such, these causes are not independent and the concurrent proximate cause doctrine applied in Partridge cannot be used in this matter."

For the insurer to have been entitled to summary judgment, it had to "'demonstrate, by reference to undisputed facts, that the claim cannot be covered'" — it had to "'establish the absence of any such potential'" for coverage. (Palp, supra, 200 Cal.App.4th at p. 289.) This, it failed to do.

The summary judgment record does not exclude the potential that Rack N Cue's alleged negligent failure to replace the window concurrently caused the injury. The plaintiff alleged he was shoved, and "crash[ed] into a plate glass window owned by [Rack N Cue], which shattered and caused bodily injury." And he alleged Rack N Cue "was negligent in that:" "it failed to replace the plate glass widows prior to the incident . . . ." The plaintiff did not allege the shove alone injured him — it was the negligently unreplaced window that "shattered and caused bodily injury."

Nor does the summary judgment record exclude the potential that the negligent failure to replace the window independently caused of the injury. Partridge articulated two tests for independence. Both are met here.

First, "[i]f [the negligent acts were] committed by separate individuals, both actors would be joint tortfeasors fully liable for the resulting injuries." (Partridge, supra, 10 Cal.3d at p. 104, fn. 10.) Here, the plaintiff did sue both the patrons and Rack N Cue in the same complaint for causing his injury. Had all of the defendants been found liable, Rack N Cue would have been jointly and severally liable with the fighting patrons for the plaintiff's damages. More starkly, if Rack N Cue was found liable for premises liability and the patrons exonerated, Rack N Cue would have been solely liable for all of plaintiff's damages.

Second, the pool hall fight "did not 'cause'" the defective window, "nor vice versa." (Partridge, supra, 10 Cal.3d at p. 104, fn. 10.) The plaintiff alleged Rack N Cue had failed to replace the window before the fight broke out. Thus, the fight did not contribute to that alleged act of negligence. And nothing in the negligence suit suggests Rack N Cue's failure to replace the window somehow triggered the fight. The plaintiff's complaint can be reasonably read to allege the negligently maintained premises just happened to be the location where the fight broke out. (See Ohio Casualty Ins. Co. v. Hartford Accident & Indemnity Co. (1983) 148 Cal.App.3d 641, 646 [negligent supervision of swimmer was independent from use of watercraft — policy holder's liability "would be unaffected whether the acts occurred on a boat, a pier or on the shore. That they occurred on the boat is fortuitous"]; State Farm Fire & Cas. Co. v. Kohl (1982) 131 Cal.App.3d 1031, 1039 [negligent rescue of vehicle crash victim was "independent of and unrelated to [the] use of the vehicle even though [the] use of the vehicle placed the victim in a position which led to the additional injury"].)

In sum, the insurer failed to show through undisputed facts that Rack N Cue's alleged negligent failure to replace the window was not an independent concurrent cause of the plaintiff's injury. The insurer was not entitled to summary judgment on Rack N Cue's complaint. (See Partridge, supra, 10 Cal.3d at p. 102; Palp, supra, 200 Cal.App.4th at pp. 288-289.)

The insurer's cited assault and battery cases do not involve concurrent proximate causes. Some involve an injury with one proximate cause — an excluded assault — and reject the attempt to extend coverage by asserting two different theories of liability. (See Century Transit Systems, Inc. v. American Empire Surplus Lines Ins. Co. (1996) 42 Cal.App.4th 121, 127-128 [injury caused by cabdriver's assault, not employer's negligent hiring of him]; see also id. at pp. 128-129, fn. 6 [criticizing case where "the negligent hiring or retention theory . . . was not an independent cause of the injury but rather a theory for imposing liability on a third party for an excluded injury"]; CMS Security, Inc. v. The Burlington Insurance Co. (N.D. Cal. Feb. 23, 2010, No. C-09-2217 MMC) [injury caused by security guard's assault, not employer's negligent hiring of him].) Another simply holds the exclusion applies regardless of who commits the assault, and rejects a policy holder's attempt to hypothesize negligence when the underlying complaint alleges an intentional assault. (Zelda, Inc. v. Northland Ins. Co. (1997) 56 Cal.App.4th 1252, 1261-1263.)

The insurer's other cases do not involve independent concurrent causes. (See Gurrola v. Great Southwest Ins. Co. (1993) 17 Cal.App.4th 65, 68-69 [liability for negligently restoring car was dependent upon use of car]; Daggs v. Foremost Ins. Co. (1983) 148 Cal.App.3d 726, 729-731 [liability for negligently designing race course was dependent upon motorcycle racing]; Hartford Fire Ins. Co. v. Superior Court (1983) 142 Cal.App.3d 406, 414-415 [liability for pilot's negligent flight planning and alcohol use was dependent on use of aircraft]; Safeco Ins. Co. v. Gilstrap (1983) 141 Cal.App.3d 524, 530-531 [liability for negligently entrusting motorcycle to teenager was dependent upon use of motorcycle]; Allstate Ins. Co. v. Jones (1983) 139 Cal.App.3d 271, 276-277 [liability for negligently loading truck was dependent upon use of truck]; National Indemnity Co. v. Farmers Home Mutual Ins. Co. (1979) 95 Cal.App.3d 102, 106-107 [liability for negligently supervising child leaving car was dependant on use of car]; State Farm Fire & Cas. Co. v. Camara (1976) 63 Cal.App.3d 48, 53-55 [liability for negligently designing dune buggy was dependent upon use of dune buggy].)

If anything, these cases explain why the concurrent cause doctrine applies here. In State Farm Fire & Cas. Co. v. Camara, supra, 63 Cal.App.3d 48,"the only way in which plaintiff could have been exposed to the claimed design risk was through the operation or use of the motor vehicle." (Id. at p. 55.) That is true of the other cases, too. There is only one way to be injured by a negligently restored car, a negligently designed race course, a pilot's negligent flight preparation, a negligently entrusted motorcycle, a negligently loaded truck, or the negligent supervision of a child leaving a car. And that is through the use of a car, motorcycle, airplane, or truck. Here, an assault was not "the only way" in which the plaintiff could have made contact with the plate glass window. (Ibid.)He could have slipped or been pushed accidentally. The physical impetus that forced the plaintiff into the window was independent from any negligence by Rack N Cue in failing to replace that window.

DISPOSITION

The judgment is reversed. The matter is remanded with directions for the court to vacate its order granting the insurer's summary judgment motion and enter a new order denying the motion. Rack N Cue shall recover its costs on appeal.

IKOLA, J. WE CONCUR: RYLAARSDAM, ACTING P. J. THOMPSON, J.