Opinion
D072539
07-27-2018
MONTEREY INSURANCE COMPANY, Plaintiff and Appellant, v. PEERLESS INDEMNITY INSURANCE COMPANY, Defendant and Respondent.
Grant, Genovese & Baratta, James M. Baratta, Lance D. Orloff and Theresa H. Rava for Plaintiff and Appellant. Lindahl Beck and Kelley K. Beck for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ECU09231) APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed. Grant, Genovese & Baratta, James M. Baratta, Lance D. Orloff and Theresa H. Rava for Plaintiff and Appellant. Lindahl Beck and Kelley K. Beck for Defendant and Respondent.
Monterey Insurance Company (Monterey) appeals a judgment entered in favor of Peerless Indemnity Insurance Company (Peerless) following Peerless's successful motion for summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Peerless provided a business auto insurance policy (Peerless Policy) that covered M. David Fish and Joe Martinez Hay Farming (Fish/Martinez). As relevant here, Fish/Martinez owned a tractor-trailer, which was insured under the Peerless Policy.
Monterey provided a commercial auto policy (Monterey Policy), which insured David Shafer, doing business as Shafer Hay Company (Shafer Hay). Shafer Hay owned and operated a hay squeeze vehicle (squeeze) that was covered under the Monterey Policy.
B. The Injury
Fish/Martinez hired Robert Deleon to pick up a load of hay at Jack Seiler Farms and transport it, driving a tractor-trailer owned by Fish/Martinez and insured under the Peerless Policy. Deleon arranged to meet a Shafer Hay representative with the squeeze at Jack Seiler Farms on February 24, 2014.
On the morning of February 24, 2014, Deleon drove the tractor-trailer to Jack Seiler Farms. He brought his friend, Cory Miller, with him to help load the hay onto the tractor-trailer. Larry Shafer (Larry), who was operating the squeeze, met Deleon and Miller at Jack Seiler Farms as well. Larry identified the stack of hay Deleon was picking up and told Deleon that he would need to untarp the stack before any hay could be loaded.
With Larry operating the squeeze, Deleon stood on one of the squeeze's forks and then was lifted to the top of the stack. There, he untarped the stack and was then lowered, by the squeeze, back to the ground. After he returned to the ground, Deleon returned to the tractor-trailer, got into the cab, and made a couple telephone calls. At that point, Miller was watching the hay being loaded on the tractor-trailer so he could tie it down. After the hay was loaded on the trailer, Miller tied down the hay, which took about 10 to 15 minutes. Once the hay was loaded and tied to the trailer, Deleon completed his paperwork and started to drive off in the tractor-trailer. Larry stopped him and told him he had to retarp the haystack. Deleon responded to Larry's direction with an expletive, but eventually agreed to return so he could retarp the haystack when Larry threatened that Deleon would not be permitted to return to Jack Seiler Farms unless he covered the haystack with the tarp. Before that day, Deleon had never retarped haystacks at Jack Seiler Farms.
Deleon described the dimensions of the squeeze's fork as "8 feet long, 4 inches wide, 4 inches thick, and about 8 inches wide." He also said that a squeeze is "basically just a huge forklift."
Deleon parked the truck about 50 to 75 feet from the haystack and returned to retarp it. Deleon again stood on the squeeze's fork and was lifted to the top of the haystack. After retarping the stack, Deleon was being lowered by the squeeze when the squeeze was moved too close to the stack and Deleon was "brushed off" of the fork and injured himself.
C. DeLeon's Lawsuit
On June 2, 2014, Deleon and his wife sued Shafer Hay and Jack Seiler Farms based on his injuries caused by falling off the squeeze's fork. Monterey defended and indemnified Shafer Hay in response to Deleon's lawsuit. However, Shafer Hay also tendered the defense and indemnification of Deleon's lawsuit to Peerless as the insurer of the tractor-trailer driven by Deleon. On October 6, 2015, Peerless refused Shafer Hay's tender, arguing that Shafer Hay was not potentially insured under the Peerless Policy. Over a month later, Monterey responded to Peerless's denial, explaining the alleged facts of the Deleon lawsuit as well as informing Peerless of a statutory offer to compromise in the amount of $849,999. Monterey requested Peerless's assistance and participation in the defense and indemnification of Shafer Hay.
On January 4, 2016, Monterey contacted Peerless, requesting a response to its November 2015 communication about defending and indemnifying Shafer Hay. Monterey eventually settled the claims against Shafer Hay for $75,000. On February 8, 2016, Peerless again refused to indemnify Shafer Hay for the claims alleged in Deleon's lawsuit.
D. Monterey's Lawsuit Against Peerless
On June 2, 2016, Monterey filed suit against Peerless for equitable contribution, indemnity, declaratory relief, and breach of the covenant of good faith and fair dealing. Monterey alleged that Peerless had an obligation to defend and indemnify Shafer Hay under the Peerless Policy. Specifically, Monterey claimed Shafer Hay was co-insured under the Peerless Policy because Deleon was injured from the "ownership, maintenance, use or loading of a covered auto. The tractor-trailer was owned and operated by [Fish/Martinez] for use by and under Deleon's direction and was a covered auto under the Peerless Policy."
Peerless answered the complaint then filed a motion for summary judgment. In that motion, Peerless maintained that Shafer Hay was only covered under the Peerless Policy if Shafer Hay was a permissive user under the subject policy. Based on the undisputed facts, Peerless argued that Deleon's injury did not arise from the loading or unloading of the hay on the tractor-trailer, but after the loading was completed. Thus, according to Peerless, at the time Deleon was injured, Shafer Hay was not a permissive user of the tractor-trailer under the Peerless Policy.
Monterey opposed the motion for summary judgment, arguing a disputed issue of material fact existed: "Was Deleon injured while Shafer Hay was involved in the loading operation of the Peerless-insured trailer?" Further, Monterey claimed this factual dispute established Peerless's duty to defend Shafer Hay as a matter of law. In support of its position, Monterey asserted that the retarping of the haystack after the hay was loaded on the tractor-trailer is part of the loading and unloading process. Alternatively stated, when Deleon used the squeeze's fork to travel to the top of the haystack to retarp the hay, Shafer Hay remained a permissive user of the Peerless insured tractor-trailer.
The superior court found that summary judgment was warranted because no disputed issue of material fact existed. Specifically, the court determined that Deleon's accident was not the result of the use of the tractor-trailer. The court further concluded that the undisputed facts showed that the loading and unloading of the hay onto the tractor-trailer had ceased by the time Deleon started to drive away in the truck, but before he was lifted by the squeeze to the top of the haystack to retarp.
Monterey timely appealed the ensuing judgment.
DISCUSSION
I
THE MOTION FOR SUMMARY JUDGMENT
A. Monterey's Contentions
Monterey contends the superior court erred in granting Peerless's motion for summary judgment. Monterey argues that there exists a disputed issue of material fact, namely whether Deleon was injured while loading the Peerless insured tractor-trailer. As such, Monterey asserts summary judgment was improper. In addition, it maintains that Peerless had a duty to defend Shafer Hay based on the allegations of Deleon's complaint and the extrinsic facts known at the time of tender. Thus, even if Peerless did not ultimately have to provide insurance coverage for Shafer Hay, it nevertheless had a duty to defend and breached that duty by denying the tender of defense. For this reason as well, Monterey claims that the superior court should not have granted the summary judgment motion. As we explain below, we reject these contentions.
B. Background
Here, the facts are undisputed. Peerless insured a tractor-trailer owned by Fish/Martinez. Fish/Martinez hired Deleon to drive the tractor-trailer to pick up hay from Jack Seiler Farms and transport it to another location. Deleon contacted Shafer Hay to load the hay. Deleon with his friend, Miller, drove the Peerless insured tractor-trailer to Jack Seiler Farms. Larry of Shafer Hay met Deleon at Jack Seiler Farms. Larry was operating the squeeze, which Monterey insured. With Larry at the controls, the squeeze lifted Deleon to the top of the haystack so he could untie the tarp. After untying the tarp, Larry lowered Deleon back to the ground. Larry then used the squeeze to load the hay onto the tractor-trailer. Miller tied down the hay to the trailer. Deleon completed some paperwork and then started to drive away. Larry stopped him and told him he had to retarp the haystack. Deleon did not want to do so, but agreed after Larry said that he would not be allowed back to Jack Seiler Farms unless he retarped the haystack. Deleon parked the truck and walked 50 to 75 feet to the haystack. Larry, using the squeeze, lifted Deleon to the top of the haystack. After Deleon finished retarping it, while he was being lowered by the squeeze, Deleon fell off the squeeze's fork, injuring himself.
It was "common practice" to retarp haystacks. It was Jack Seiler Farms' expectation that if a tarp was moved to obtain hay then it would be placed back to cover the haystack. However, Deleon had never retarped any haystack at Jack Seiler Farms before the date in question.
Under the Peerless Policy, Peerless promises to "pay all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' . . . caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.' It is undisputed that the subject tractor-trailer is a covered auto under the policy. Further, the Peerless Policy states that an "insured" includes "[a]nyone else . . . using with [Fish/Martinez's] permission a covered 'auto' . . . ."
In addition, use of a covered auto includes the loading and unloading of that auto. (See Ins. Code, § 11580.06, subd. (g).)
C. Legal Principles and Standard of Review
A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In the context of an insurance dispute, "[a]n 'insurer is entitled to summary [judgment] that no potential for indemnity exists and thus no duty to defend exists if the evidence establishes as a matter of law that there is no coverage.' " (Great Western Drywall, Inc. v. Interstate Fire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1039.) " ' "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." [Citations.] In reviewing de novo a superior court's summary [judgment] order in a dispute over the interpretation of the provisions of a policy of insurance, the reviewing court applies settled rules governing the interpretation of insurance contacts.' " (Stellar v. State Farm General Ins. Co. (2007) 157 Cal.App.4th 1498, 1503.) An "insurer is entitled to summary [judgment] that no potential for indemnity exists and thus no duty to defend exists if the evidence establishes as a matter of law that there is no coverage." (Smith Kandal Real Estate v. Continental Casualty Co. (1998) 67 Cal.App.4th 406, 414.)
" ' "While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply." [Citations.] "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties." [Citation.] "Such intent is to be inferred, if possible, solely from the written provisions of the contract." ' " (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390.) "Whether a clause is ambiguous and whether [an insured] has an objectively reasonable expectation of coverage in light of the insuring language are questions of law." (Windsor Food Quality Co., Ltd. v. Underwriters of Lloyds of London (2015) 234 Cal.App.4th 1178, 1185.) "Courts do not engage in forced construction of insuring clauses to find coverage, nor will they strain to create an ambiguity where none exists." (Ray v. Valley Forge Ins. Co. (1999) 77 Cal.App.4th 1039, 1044.)
"An insurer's duty to indemnify and its duty to defend an insured 'lie at the core of the standard [insurance] policy.' [Citation.] The duty to defend is broader than the duty to indemnify. [Citation.] 'Unlike the obligation to indemnify, which is only determined when the insured's liability is established, the duty to defend must be assessed at the very outset of a case.' " (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286-287.) When determining whether a duty to defend exists, the insurer must compare the allegations of the complaint and the terms of the insurance policy. (Id. at p. 287.) Furthermore, the insurer must consider " 'extrinsic facts known to the insurer suggest[ing] that the claim may be covered.' " (Ibid.) "[W]here the extrinsic facts eliminate the potential for coverage, the insurer may decline to defend even when the bare allegations in the complaint may suggest potential liability. [Citations.] This is because the duty to defend, although broad, is not unlimited; it is measured by the nature and risks covered by the policy." (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19 (Waller).)
D. Analysis
The instant action is somewhat unique because the parties are not offering dueling interpretations of the subject insurance policy. Instead, for purposes of the issues before us, the parties do not disagree that Shafer Hay could be covered under the Peerless Policy as a permissive user if Deleon was injured while loading or unloading the tractor-trailer. As such, this case does not turn on the interpretation of the Peerless Policy, but the application of that policy to undisputed facts.
Monterey asserts that it has raised a triable issue of material fact because it is disputed whether Deleon was injured during the loading and unloading of the tractor-trailer. In support of its position, Monterey cites Mirpad, LLC v. California Ins. Guarantee Assn. (2005) 132 Cal.App.4th 1058 at page 1068: "If coverage depends on an unresolved dispute over a factual question, the very existence of that dispute would establish a possibility of coverage and thus a duty to defend." Although we do not quibble with the general legal principle espoused by the court in Mirpad, that rule does not apply here. Monterey correctly frames the primary disagreement between the parties, but it glosses over the fact that underlying that quarrel, the facts are undisputed. Thus, we do not have to resolve any factual issue, but instead, we must decide a legal issue based on undisputed facts. (See Waller, supra, 11 Cal.4th at pp. 25-26.) "If the facts are undisputed . . . then summary judgment may be entered on issues that otherwise would have been submitted to the jury. That is the function of summary judgment proceedings." (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 366.) Put differently, the instant matter is one that can be properly resolved by us as a matter of law. We thus can determine, based on the undisputed facts, whether Deleon was injured during the loading of the tractor-trailer.
Here, the subject tractor-trailer was loaded with hay. Miller tied down the load to the trailer. Deleon completed his paperwork and began to drive off with the hay. Larry stopped him and told him that he had to retarp the haystack. Deleon then exited the tractor-trailer, walked 50 to 75 feet to the haystack where Larry operated the squeeze to lift Deleon to the top of the haystack so he could retarp it. On the way down, Deleon fell off the fork of the hay squeeze and was injured. Monterey argues that it is unimportant that Deleon was injured after the hay was loaded and tied down because the untarping and retarping is part of the loading procedure. Further, Monterey points out it was custom for a trucker, who was picking up a load of hay, to untarp and retarp a haystack.
In support of its position, Monterey relies on Argonaut Ins. Co. v. Transport Indemnity Co. (1972) 6 Cal.3d 496 (Argonaut), Encompass Ins. Co. v. Coast National Ins. Co. (9th Cir. 2014) 764 F.3d 981 (Encompass), American Auto. Ins. Co. v. American Fidelity & Casualty Co. (1951) 106 Cal.App.2d 630 (American Fidelity), and American Auto. Ins. Co. v. Transport Indemnity Co. (1962) 200 Cal.App.2d 543 (Transport Indemnity). None of these cases are instructive here.
In Argonaut, supra, 6 Cal.3d 496, a truck driver was injured when he was assisting in the unloading of a semitrailer and a portion of the load fell from the semitrailer onto him. (Id. at pp. 500-501.) There was no issue whether the truck driver was injured during the loading or unloading process. Indeed, the court stated the "vehicle was therefore clearly being 'used' by those engaged in the loading process." (Id. at p. 506.) Thus, the court concluded the trial court correctly prorated both liability and costs of defense to include contribution from the semitrailer's insurer. (Id. at p. 507.)
Argonaut, supra, 6 Cal.3d 496 is not helpful here. It does not aid us in determining whether Deleon was injured during the load or unloading process. Instead, it merely stands for the unremarkable principle that loading and unloading of a vehicle constitutes use of that vehicle. In other words, Argonaut does not answer the question presented in the instant action.
Nor does Encompass, supra, 764 F.3d 981. In that case, Anthony Watson lost control of his vehicle, ran off the road, and crashed into a light pole. Alexandra Van Horn was a passenger in that car. A second car, not involved in the accident, stopped at the scene of the accident to render aid. A passenger in this second car, Lisa Torti, saw Van Horn inside the wrecked car and allegedly feared that Van Horn might be in danger. Thus, Torti grabbed Van Horn and pulled her out of the car. Van Horn suffered severe injuries and sued Torti. (Id. at pp. 982-983.) Torti tendered her defense to the insurer of her car, home, and personal excess liability, Encompass Insurance Company (EIC). She also tendered her defense to Mid-Century Insurance Company, which also insured her car. Finally, Torti tendered her defense to Coast National Insurance Company, which had insured Watson's car. Both those insurance companies denied Torti's tenders. (Id. at p. 983.)
After settling Van Horn's suit against Torti, EIC sued Mid-Century and Coast National, seeking contribution or subrogation for the expenses EIC incurred in its defense and indemnification of Torti. The district court entered judgment in favor of Mid- Century and Coast National. (Encompass, supra, 764 F.3d at pp. 983-984.) On appeal, the Ninth Circuit reversed, concluding the unloading of an injured passenger from a vehicle constitutes "use" of that vehicle under California law. (Id. at p. 987.)
Here, it is undisputed that Deleon was not injured loading anything onto the tractor-trailer or unloading anything from the tractor-trailer. Thus, Torti's removal of Van Horn from the vehicle in Encompass is not analogous to any of the facts in the instant matter. Here, the subject tractor-trailer was fully loaded, and Deleon was driving away when Larry stopped him and told him that he needed to retarp the stack. He then was injured in the process of retarping the haystack.
In American Fidelity, supra, 106 Cal.App.2d 630, the Second District considered whether an oil spill arose out of the unloading of a tanker truck and trailer carrying diesel oil. Ultimately, the court held that, "the accident falls within the coverage of the 'loading and unloading' provision of defendant's policy since the accident occurred while unloading was in progress and before the oil had come to . . . its ultimate destination." (Id. at p. 638.) Thus, American Fidelity does not offer any guidance to decide the issue before us, but instead, is simply another case supporting the principle that Peerless would have had to defend and/or indemnify Deleon if he was injured while loading the tractor-trailer.
Transport Indemnity, supra, 200 Cal.App.2d 543 suffers from the same shortcomings as the three previously discussed cases on which Monterey relies. There, Culy Transportation Company, by its driver Guerrero, drove its truck containing four steel blocks, each weighing 400 to 600 pounds, to General Grinding Company's yard. Ordinarily, General would have removed the blocks with a crane, but the crane was out of order. Grinding's foreman, Bardon, directed Guerrero to place the truck out in the street so that the blocks could be thrown into some dirt that was a part of the street. (If the blocks were thrown off in the yard, they would have broken the cement paving of the yard and the blocks would have been dented.) Bardon directed Rea, another employee of Grinding, to help Guerrero unload and then left the scene. The truck was placed in the street and Guerrero and Rea pushed a block off the truck, striking and injuring a little girl. Pertinent here is the fact that American Automobile Insurance Company (American) insured the Culy truck, giving coverage to any person for injuries arising out of the use of any automobile, including the loading and unloading thereof. The court held, as an alternative basis for holding that the American policy covered Bardon, that Bardon was "in substance a user of the truck." (Id. at p. 551.) "Bardon's liability arises from his own conduct, not from vicarious liability for the acts of Rea, whom he assigned to assist Guerrero in the unloading. The parties agree that American would not be liable for Bardon's amenability as respondeat superior. But Bardon's own, or independent, negligence lay in his failure to post a guard to warn persons using the street to watch for the danger." (Ibid.) The court then held that Bardon was responsible for the "particular usage of the Culy truck" and hence was covered by the policy which insured a person "using the truck." (Id. at p. 552.) Again, we observe the injury giving rise to insurance coverage in Transport Indemnity occurred during the unloading of the subject truck.
In short, all four cases on which Monterey relies simply stand for the proposition that Shafer Hay would be a permissive user of the Peerless insured tractor-trailer if Deleon was injured while loading the tractor-trailer. These cases, however, do not provide guidance regarding the undisputed facts before us, namely the tractor-trailer was fully loaded and was being driven away when Deleon was stopped, parked the tractor-trailer, walked 50 to 75 feet to the haystack, where he was injured when he fell off the hay squeeze's fork after retarping the haystack. None of the cases cited by Monterey address a similar factual issue. They do not address whether Deleon was loading the tractor-trailer when he was retarping the haystack. In this sense, Monterey has not provided us with any authority to support its position, but instead, is asking us to expand what California law considers "use" of a vehicle.
Our high court has discussed the phrase "use" in the context of an automobile insurance policy. (See State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100-101 (Partridge).) It is "established beyond contention that this language of 'arising out of the use,' when utilized in a coverage or insuring clause of an insurance policy, has a broad and comprehensive application, and affords coverage for injuries bearing almost any causal relation with the vehicle." (Id. at p. 100, italics omitted; Prince v. United National Ins. Co. (2006) 142 Cal.App.4th 233, 238-239.) However, "some minimal causal connection" between the use of the vehicle and the accident is "required." (Partridge, supra, at p. 100, fn. 7; State Farm Mutual Automobile Ins. Co. v. Grisham (2004) 122 Cal.App.4th 563, 566-567 (Grisham).)
After Partridge, supra, 10 Cal.3d 94 a majority of California decisions have applied the "predominating cause/substantial factor test" to determine whether the "minimal causal connection" requirement has been met. (R.A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 802 (Stuchbery); Grisham, supra, 122 Cal.App.4th at pp. 566-567.) "Under this test, a mere 'but for' connection between the use of the vehicle and the alleged injuries is insufficient to bring the claim within the scope of coverage" because to "hold otherwise would convert auto liability policies into general liability policies." (Stuchbery, supra, at p. 802; Grisham, supra, at p. 567.) "Coverage based on 'use' must encompass an event that reasonably could have been contemplated as falling within the insurance policy." (Ibid.) Neither where the vehicle merely provides the situs of the tort nor where the vehicle serves simply as the transportation of a tortfeasor to a site where he commits a tort after departing from the vehicle is sufficient for causation to be found between the injury and the vehicle's "use." (Ibid.; American National Property & Cas. Co. v. Julie R. (1999) 76 Cal.App.4th 134, 139-140 (Julie R.).)
Here, the tractor-trailer played no role in Deleon's injuries. The tractor-trailer was completely loaded without Deleon suffering his injury. Further, Deleon was driving away before he was stopped to return some 50 to 75 feet to the haystack to retarp it. Therefore, the tractor-trailer had completed its purpose on the farm, i.e., to pick up hay and transport it away. It played no role in Deleon's injuries. Indeed, Deleon was injured during the retarping process. That process did not involve the use of the tractor-trailer. It involved the squeeze only. As such, Shafer Hay, as operator of the squeeze, was not loading the Peerless insured tractor-trailer at that time. Because Deleon was injured after the tractor-trailer was fully loaded and was beginning to drive away, Shafer Hay was not a permissive user under the Peerless Policy when Deleon's injury occurred.
Because we conclude as a matter of law, based on the undisputed facts before us, that Shafer Hay was not covered under the Peerless Policy when Deleon was injured, Peerless had no duty to defend or indemnify Shafer Hay based on Deleon's lawsuit. (See Grisham, supra, 122 Cal.App.4th at pp. 567-568 [concluding no coverage under the auto policy where a dog escaped from a parked vehicle and bit a man walking on the street about 25 yards away from the vehicle]; Stuchbery, supra, 154 Cal.App.4th at p. 803 [determining no coverage under the auto policy because the subject vehicle was merely used to transport victim to the locale of the sexual assault]; Julie R., supra, 76 Cal.App.4th at p. 140 [finding no coverage under the auto policy because the use of the subject car as transportation to the scene of the injury did "not establish a sufficient causal connection between the 'use' and the injury."].)
Additionally, we reject Monterey's claim that even if we determine Peerless did not have to indemnify Shafer Hay under the Peerless Policy, Peerless still owed a duty to defend based on the allegations in Deleon's complaint and the extrinsic facts. There is no allegation in Deleon's complaint that he was injured while using the tractor-trailer. Further, the undisputed extrinsic facts show that Deleon was injured after the tractor-trailer was completely loaded. As such, Peerless owed no duty to defend. (Waller, supra, 11 Cal.4th at p. 19.)
We are not persuaded by Monterey's attempt to create a disputed issue of material fact regarding Peerless's duty to defend by citing to portions of Peerless's claim log. We note that Monterey combines various entries in an attempt to create an aura of uncertainty where it appeared Peerless believed Deleon could have been injured during the loading of the tractor-trailer. A careful reading of the log, however, illuminates that Peerless was investigating the underlying facts of the tender and determined in a matter of days that the loading of the Peerless insured tractor-trailer was completed before Deleon was injured. --------
DISPOSITION
The judgment is affirmed. Peerless is awarded its costs on appeal.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. BENKE, J.