[00:00:00] Speaker 01:
Mr. Sharpe.

[00:00:01] Speaker 04:
Good morning, Your Honor.

[00:00:03] Speaker 04:
Ronald Z. Skibo on behalf of the appellant, Kai Li.

[00:00:09] Speaker 04:
First, I would just note that the issue on appeal is actually a very discreet one of insurance policy interpretation.

[00:00:18] Speaker 04:
The subject language that is on appeal is actually, there's not much from the policy.

[00:00:28] Speaker 04:
And it's up to this court to conduct de novo review of the district court's determination as to the meaning of the policy language.

[00:00:39] Speaker 04:
First, and I looked at in reviewing for preparing for oral argument, I looked at the briefing.

[00:00:44] Speaker 04:
I think the briefing fairly sets forth the relevant points on appeal.

[00:00:49] Speaker 04:
It's pretty complete.

[00:00:50] Speaker 04:
So I'll confine my comments to what I believe are just a few extra things that weren't mentioned in the briefing.

[00:00:57] Speaker 04:
First of all, the state farm policy we have in this case has the same limit of liability language that the district court found to permit so-called stacking in the attained decision, which is cited in our brief, with the caveat that the policy here adds what state farm contends is so-called anti-stacking language.

[00:01:23] Speaker 04:
But our basic position is that the added language

[00:01:27] Speaker 04:
only conflicts with a provision that attain held permit stacking.

[00:01:33] Speaker 04:
And the point I want to make is that the district court's opinion is to how the provision that attain held permit stacking with the provision that State Farm Contends does not permit stacking is incredibly cursory with respect to its explanation of how the two provisions harmonize.

[00:01:58] Speaker 04:
And it provides no real guidance or explanation at all.

[00:02:02] Speaker 04:
And so I believe that on that point, I welcome to NOVA review to provide an explanation that is, I think, that it would be actually understandable.

[00:02:13] Speaker 04:
I would just note that if someone like my client reads one provision, understands that it permits stacking, as did attain,

[00:02:23] Speaker 04:
They're not going to read the other provision and understand that the two provisions somehow harmonize to prevent stacking.

[00:02:29] Speaker 01:
So what is the effect of the no additional limits or coverage will be available for the occurrence or offense under any additional years?

[00:02:38] Speaker 01:
So the policy remains enforced?

[00:02:40] Speaker 01:
What does that do?

[00:02:41] Speaker 04:
So that's problematic for two reasons.

[00:02:42] Speaker 04:
First of all, it's notable that the district court in its opinion omitted the full language and text of that

[00:02:51] Speaker 04:
provision that Your Honor just read, which is that the language, that the full quote includes the statement that for the additional years that this policy remains in force.

[00:03:05] Speaker 04:
And I'm seizing on that phrase, this policy, because it then is unclear whether this policy means, is confined to the temporal period of the policy at issue

[00:03:19] Speaker 04:
or somehow extends to other policies that the insured may obtain by way of renewal.

[00:03:27] Speaker 04:
And so on that point, I would say that this policy could easily be read to be understood by an insured to understand that the policy limitations only apply to the temporal period covered by the policy at issue.

[00:03:43] Speaker 04:
But I think it is notable that the district court, for whatever reason, chose to omit

[00:03:49] Speaker 04:
the full sentence in its opinion in stating how the paragraphs are harmonized.

[00:03:56] Speaker 04:
I would say that, and secondly, so the first point is obviously that the conflict between the two provisions, the one that the court held was permit stacking and the other provision that State Farm contends does not, creates an ambiguity that should result in favor of coverage.

[00:04:16] Speaker 04:
Secondly, and more problematically,

[00:04:18] Speaker 04:
Even if we assume for the sake of argument that the so-called anti-stacking provision can be harmonized with the other provision, there's absolutely no language in the policy to address the question raised by the Court of Appeal, California Court of Appeal, in the ABS clothing case.

[00:04:35] Speaker 04:
And by this court, in its opinion in Karen Kane, which is whether the policy contains

[00:04:42] Speaker 04:
which whether the policy contains language that's clear and unambiguous, the renewal of the policy does not create a separate contract.

[00:04:51] Speaker 01:
And... Just so I understand, this policy, you had the policy for four years?

[00:04:56] Speaker 04:
It renewed it, yeah, it was over a period of several years, correct.

[00:05:01] Speaker 01:
And there was one policy number during that whole period of time.

[00:05:05] Speaker 04:
Correct, there was one policy number, that's correct.

[00:05:07] Speaker 01:
But your view is that

[00:05:12] Speaker 01:
each year is a different policy so that this policy language doesn't refer to the other years?

[00:05:19] Speaker 04:
That's correct.

[00:05:20] Speaker 04:
That's the basic argument.

[00:05:22] Speaker 04:
And the one thing that's notable is that upon renewal, State Farm expressly reserves its right to change and alter the terms of the new policy that it issues.

[00:05:38] Speaker 04:
And this is an issue, frankly.

[00:05:40] Speaker 01:
And what do we do with the, I mean, so the policy defines a policy period, which is, if I understand correctly, is a single year.

[00:05:49] Speaker 01:
Correct.

[00:05:50] Speaker 01:
And then has provisions about renewal.

[00:05:52] Speaker 01:
And both of those things together kind of suggest that, you know, the policy period may be one year, but the policy itself is something that,

[00:06:02] Speaker 01:
extends longer than that and that the renewal is not creating a new policy, it's renewing the policy.

[00:06:07] Speaker 04:
Sure, that's one read of the policy and that would be states farm's position.

[00:06:11] Speaker 01:
Why is that wrong?

[00:06:12] Speaker 04:
Well, it's wrong because the reservation of rights to change the terms of the policy is explicit and it comes in the declaration page and for example I would submit that should the court come to a different conclusion as to the meaning

[00:06:28] Speaker 04:
of the policy and conclude that stacking is allowed, that State Farm and subsequent iterations of the policy will change its policy language for precisely that purpose, to try to ameliorate the effect of this Court's holding.

[00:06:42] Speaker 04:
The point being that it's not as if State Farm is unequivocally committing to have reissue policies that are on the exact same terms.

[00:06:52] Speaker 04:
It's expressly reserving the right to alter the terms of the policy as it sees fit.

[00:06:58] Speaker 04:
And so I would submit that there is no insured who would, if they understood that upon renewal that you were obtaining a new contract, I would submit that there is not an insured who would expect that the limitation of liability would also apply to the issuance of a new policy.

[00:07:18] Speaker 04:
So the question is whether or not that that would be a plausible reading of the policy by an insured, assuming they actually read the policy, of course.

[00:07:28] Speaker 04:
And so what is notable is that this was an argument made in summary judgment and the district court did not address it at all.

[00:07:37] Speaker 04:
It just glossed over it other than, as I mentioned, omitting the full quote of the policy in its opinion.

[00:07:48] Speaker 04:
But it seems to me that the question is critical as to whether or not the renewal creates a separate contract

[00:07:57] Speaker 04:
Because the insurer could easily understand, again, from the so-called anti-stacking clause that limits coverage for this policy to mean that the limit of coverage is temporarily confined to the annual policy for which language appears.

[00:08:11] Speaker 04:
And the standard, as adopted by this court following the California Court of Appeal decision in ABS holding, is that such statement

[00:08:24] Speaker 04:
has to clearly and unambiguously appear in the policy.

[00:08:27] Speaker 04:
And there is nothing to that effect as to what the effect of the renewal is.

[00:08:31] Speaker 04:
In other words, if State Farm intended that the renewal not be considered a new policy, that needs to be in the policy itself.

[00:08:39] Speaker 04:
And there's nothing in there that says as much.

[00:08:42] Speaker 04:
And then the next point I would make is that ABS clothing, Karen Kane, reflect a statement of California law.

[00:08:51] Speaker 04:
And this court in Karen Kane,

[00:08:54] Speaker 04:
discussed at some length why the district court in that case was bound to follow the statement of California law set forth in ABS clothing.

[00:09:05] Speaker 04:
And this court concluded there was no reason to think that the California Supreme Court would decide the law differently than the Court of Appeal.

[00:09:12] Speaker 04:
And I think that's something to note here.

[00:09:13] Speaker 04:
There's no reason to think that the California Supreme Court would not apply the analysis in ABS clothing in this case.

[00:09:21] Speaker 04:
It's also worth noting that State Farm's unable to cite any contrary authority under California law.

[00:09:27] Speaker 04:
Rather, State Farm cites a federal case that applied Hawaii law.

[00:09:32] Speaker 04:
And the court should decline State Farm's invitation to follow law from another state that came out differently from the analysis set forth in ABS clothing and Karen King.

[00:09:43] Speaker 04:
on the question of whether successful renewals create new contracts.

[00:09:48] Speaker 01:
Could I ask you to say a bit about your argument about multiple occurrences?

[00:09:51] Speaker 01:
I tried to find the settlement agreement between your client and Ms.

[00:09:58] Speaker 01:
Chung, and I didn't see that that's in the record.

[00:10:01] Speaker 01:
I don't believe it is.

[00:10:06] Speaker 01:
Your argument is

[00:10:11] Speaker 01:
Part of your argument is, you know, she had multiple claims and maybe they... Oh, that's correct, Your Honor.

[00:10:16] Speaker 01:
... arose on different occurrences, but how are we to figure out what the settlement was for?

[00:10:23] Speaker 04:
Well, the complaint... I think it was a general release.

[00:10:27] Speaker 04:
I'm not sure the settlement agreement would be much help to the court, honestly.

[00:10:31] Speaker 04:
So what... I think, but the complaint itself, what we have are the complaint and the opinions of

[00:10:38] Speaker 04:
a defense counsel upon which State Farm relied in settling the case.

[00:10:45] Speaker 04:
And the opinions of counsel are in the record.

[00:10:48] Speaker 04:
It was argued on summary judgment, and that included an independent damages number and assessment of other claims.

[00:10:56] Speaker 04:
Uh, besides the catastrophic personal injury claim that was, uh, obviously what made the case, uh, so potentially, uh, you know, worth two to $4 million, had it gone to trial.

[00:11:09] Speaker 00:
And where is that in the record?

[00:11:12] Speaker 00:
It's the summary judgment papers.

[00:11:14] Speaker 00:
No, no, the analysis that gave a breakdown as to the different projected damages.

[00:11:21] Speaker 04:
I believe it's in my brief, Your Honor.

[00:11:22] Speaker 04:
I mean, good question.

[00:11:23] Speaker 04:
I'm not citing you to the specific point.

[00:11:25] Speaker 04:
But I do note that the defense counsel actually said that it had an independent value.

[00:11:35] Speaker 04:
But admittedly, it was a much smaller claim

[00:11:39] Speaker 04:
than was the rent ordinance violations, the wrongful eviction type claims and so forth that were all independently evaluated.

[00:11:50] Speaker 04:
It was a much smaller value than were the other claims.

[00:11:54] Speaker 04:
And so the point I made in my brief was simply that even though admittedly those claims were much smaller,

[00:12:01] Speaker 04:
those claims were completely independent and did actually occur over a period of... No, I understand that from... I just don't.

[00:12:09] Speaker 00:
I share Judge Miller's question, which is how do we value that now in terms of the ultimate settlement?

[00:12:16] Speaker 00:
How it contributed to the ultimate settlement?

[00:12:18] Speaker 04:
Well, I would... Okay, so my view, you know, because I do landlord-tenant litigation in San Francisco, is that, of course,

[00:12:29] Speaker 04:
There were two things.

[00:12:31] Speaker 04:
One, obviously, was the total value of the claim had it gone to trial would have been catastrophic for my client.

[00:12:37] Speaker 04:
He would have lost everything.

[00:12:38] Speaker 00:
So in terms of... Right, but you're arguing there's value in other recurrences that were... Correct.

[00:12:47] Speaker 00:
And how do we assess that?

[00:12:49] Speaker 04:
Well, I think we're left with the evaluation of defense counsel that I submit is in the record, but notwithstanding my inability to cite it specifically right now.

[00:12:57] Speaker 04:
But I think it assessed it as in the range of, I think, $10,000 to $20,000 as a separate claim.

[00:13:03] Speaker 04:
So it was obviously the small claim, relatively speaking.

[00:13:08] Speaker 04:
But nonetheless, the point remains that to the extent that claim did cross policy lines or policy periods, that that was an argument made on summary judgment, and the district court didn't address it at all.

[00:13:23] Speaker 03:
So with regard to any...

[00:13:27] Speaker 03:
the district where it had and had you prevailed on that notion or that position, you would have gotten another, another 300,000 would have been available?

[00:13:37] Speaker 04:
Well, it would have required an independent assessment of, it would have at least triggered, implicated more coverage for

[00:13:46] Speaker 04:
those ongoing claims.

[00:13:48] Speaker 01:
But it would be limited to the value of those other claims?

[00:13:50] Speaker 01:
That's correct.

[00:13:51] Speaker 01:
That's correct.

[00:13:51] Speaker 04:
And I'm not submitting otherwise.

[00:13:53] Speaker 04:
But I am also saying that a jury trial with regard to rent ordinance violations is potentially significant.

[00:14:00] Speaker 04:
The other thing I would say is that the one point I really want to emphasize, and I know my time is short, is that this court and ABS Clothing both expressly acknowledged that

[00:14:15] Speaker 04:
it was that it would not be within the reasonable expectation of the insured that by renewing their policy, they were thereby limiting the available coverage for an event, an occurrence that crossed policy lines or policy periods.

[00:14:32] Speaker 04:
And in fact, this court went as far as to say that that would not be, in the Karen Kayean opinion expressly said, that would not be within the reasonable expectations of the insured

[00:14:44] Speaker 04:
which this court characterized as the touchstone for interpreting these policies.

[00:14:50] Speaker 04:
My client certainly did not understand that by renewing his policy was thereby limiting the available coverage to him in the event of any kind of injury like this.

[00:15:03] Speaker 04:
So I would submit that that is something that is not within his reasonable expectations, nor would it be with anybody's.

[00:15:11] Speaker 04:
And so I think that's an important thing to consider

[00:15:14] Speaker 04:
when we're looking at whether or not this policy, whether or not there's separate contracts or not.

[00:15:22] Speaker 01:
Thank you.

[00:15:22] Speaker 01:
Thank you, Mr. Skibow.

[00:15:23] Speaker 01:
You've used up your time, but we'll give you a minute for rebuttal.

[00:15:27] Speaker 04:
Thank you.

[00:15:32] Speaker 01:
Mr. Roberts.

[00:15:34] Speaker 02:
Thank you, Your Honor.

[00:15:36] Speaker 02:
May it please the court, I'm Todd Roberts.

[00:15:38] Speaker 02:
I represent State Farm General Insurance Company.

[00:15:40] Speaker 02:
For at least two reasons, the judgment in favor of State Farm should be affirmed.

[00:15:46] Speaker 02:
First, because the only evidence of compensable bodily injury to Rosa Chung occurred in the 2018-2019 policy period.

[00:15:56] Speaker 02:
in the weeks immediately preceding the July 15 carbon monoxide poisoning event.

[00:16:03] Speaker 02:
But even if bodily injury occurred before then, summary judgment was proper because State Farm policy language restricted the payment of liability insurance benefits to a $300,000 policy limit where the damages spanned multiple periods of time.

[00:16:23] Speaker 02:
And it accomplished this by incorporating the anti-stacking language that the California Supreme Court has confirmed is allowed and can be adopted by insurance companies in California.

[00:16:39] Speaker 02:
The pertinent language in the state farm policy is in the limits of liability section, applicable to section two, and read specifically

[00:16:53] Speaker 02:
that the most we will pay for the sum of all damages because of bodily injury arising out of any one occurrence is the coverage L liability limit shown in the declarations.

[00:17:06] Speaker 02:
In this instance, $300,000 for the policy period during which the injury or damage first occurs.

[00:17:14] Speaker 02:
And then the rule stated is that no additional limits or coverage will be available for the occurrence

[00:17:22] Speaker 02:
or offense under any additional years that this policy remains in force.

[00:17:29] Speaker 02:
That language is important because I think it completely disposes of Mr. Scevo's argument to the effect that no reasonable insured would consider each policy renewal to be the same policy.

[00:17:49] Speaker 02:
In this policy,

[00:17:51] Speaker 02:
It is clear that State Farm considers it a single contract that is renewed annually, and it does that, including by reference to this particular language.

[00:18:05] Speaker 02:
The language is also very important because the case upon which my friend principally relies is attained specialty decision

[00:18:19] Speaker 02:
which was a case that allowed stacking of limits.

[00:18:24] Speaker 02:
But the language that State Farm has incorporated in its policy that was absent in the California capital policies at issue in the attained specialty case, it mimics the language of the Court of Appeals decision.

[00:18:44] Speaker 02:
In the very last paragraph, it says,

[00:18:48] Speaker 02:
where they allowed stacking, it says the policies do not indicate that the per occurrence limit applies across policy periods.

[00:18:58] Speaker 02:
That's precisely what the state farm policy does that the attained specialty court says was absent in that case.

[00:19:10] Speaker 02:
So my friend also mentioned that

[00:19:14] Speaker 02:
He could not harmonize or it could not be harmonized with the aggregate limits of liability section where the policy renews annually and a new separate limit applies.

[00:19:29] Speaker 02:
The St.

[00:19:31] Speaker 02:
Paul versus Bodell case, the Hawaii case that he referred to specifically states that that proviso does not mean you get an additional full limit

[00:19:42] Speaker 02:
for the occurrence that has already commenced.

[00:19:47] Speaker 02:
What it means is that you get a new policy limit for a new event, for a new occurrence.

[00:19:54] Speaker 02:
So if Ms.

[00:19:55] Speaker 02:
Chung sustains acute carbon monoxide poisoning in the 2018 to 2019 time frame, there's a brand new policy limit of $300,000 for the next annual period

[00:20:12] Speaker 02:
if somebody slips and falls and breaks their leg.

[00:20:15] Speaker 02:
That's how the language is harmonized in the limits of insurance provision.

[00:20:25] Speaker 00:
Your argument really kind of depends on the fact that you think there's only one occurrence, correct?

[00:20:38] Speaker 02:
There is only one occurrence that resulted in

[00:20:40] Speaker 02:
injury as a result of exposure to carbon monoxide.

[00:20:44] Speaker 00:
I mean, the argument could be made that every time he, when he replaced the monitoring device defectively, that could constitute a separate occurrence.

[00:20:55] Speaker 00:
I'm not sure he's making that argument, but as I read it, it looked like there were multiple potential occurrences.

[00:21:03] Speaker 00:
The damage is the same, carbon monoxide, but

[00:21:05] Speaker 00:
You could argue that with the proper monitoring equipment, could have discovered it earlier.

[00:21:13] Speaker 02:
You could make that argument in almost every single case.

[00:21:18] Speaker 02:
But here's the point.

[00:21:22] Speaker 02:
You could argue that while there was an occurrence in 1985 when the wall furnace was negligently installed and vented.

[00:21:31] Speaker 02:
there was a negligent occurrence when the thermostat was not replaced properly, or the burner was not placed properly.

[00:21:39] Speaker 02:
But what the courts focus on in California is the language in occurrence that is an accident, including repeated exposure conditions.

[00:21:51] Speaker 02:
And the focus is on the cause of the damage.

[00:21:56] Speaker 02:
And I think we pointed out,

[00:21:58] Speaker 02:
The clearest case.

[00:22:00] Speaker 00:
Taking your point, you could argue that each of those separately caused different damages within the period of time, temporal time.

[00:22:10] Speaker 00:
Now, I'm not sure he's making that argument, but it just struck me when I was looking at that that this was arguably a multiple occurrence case.

[00:22:18] Speaker 02:
I would respectfully disagree because, one, they haven't made the argument, and the proper focus is on the source.

[00:22:28] Speaker 02:
of the damage, we cited the Safeco case specifically for that very purpose where it was a landslide.

[00:22:39] Speaker 02:
In a landslide case, it could be multiple sources.

[00:22:41] Speaker 02:
It could be negligent grading.

[00:22:42] Speaker 02:
It could be over watering.

[00:22:43] Speaker 02:
It could be triggered by subjacent failure to provide subjacent lateral support.

[00:22:48] Speaker 02:
There could be a host of reasons that factor into the end result, which is the landslide.

[00:22:56] Speaker 02:
Same thing here, improper venting, maybe negligent maintenance, but the source of the injury is the same.

[00:23:07] Speaker 02:
It is the defective wall heater.

[00:23:10] Speaker 02:
And that's Safeco versus Fireman's Fund, which found that when all injuries result from a single source, there is only one occurrence.

[00:23:19] Speaker 02:
And here, the only occurrence or the proper focus is on the source of the,

[00:23:25] Speaker 02:
the injury, the carbon monoxide event, and that's the wall furnace, the negative maintenance and installation of that.

[00:23:33] Speaker 00:
There are other occurrences alleged on different theories, habitability and so forth.

[00:23:40] Speaker 00:
I tried to look at your reservation of rights letter.

[00:23:43] Speaker 00:
The reservation of rights, for some reason, at least in my copy of excerpts, is only partially there.

[00:23:50] Speaker 00:
Did you reserve on all those?

[00:23:51] Speaker 00:
I just have to ask you.

[00:23:54] Speaker 02:
Yes.

[00:23:56] Speaker 02:
We reserved rights.

[00:23:58] Speaker 02:
And State Farm did exactly what it should do under the circumstances.

[00:24:01] Speaker 02:
And by the way, none of the habitability claims are covered under the policy.

[00:24:05] Speaker 00:
No, I understand your argument.

[00:24:08] Speaker 00:
In the version of the reservation of rights letter, which is not complete, I didn't see it.

[00:24:12] Speaker 00:
So that's why I'm asking.

[00:24:14] Speaker 02:
Yes.

[00:24:14] Speaker 02:
And State Farm, as I said, did exactly the right thing.

[00:24:17] Speaker 02:
It defended the entire action, and it settled the entire action.

[00:24:21] Speaker 02:
And what is missing in the record is any suggestion that State Farm and Mr. Lee, in their $1.2 million settlement package that they agreed upon, had to pay any additional amounts

[00:24:38] Speaker 02:
because of those collateral claims of, you know, there was mold in the wall, there was excess moisture.

[00:24:46] Speaker 02:
There's nothing in the record that suggests that.

[00:24:49] Speaker 02:
In fact, as my friend Mr. Schieffel... Or the opposite.

[00:24:53] Speaker 00:
Well, I think the... I mean, at least you can point me to something in the record.

[00:24:58] Speaker 00:
I just didn't see anything that allocated the settlement.

[00:25:02] Speaker 00:
They're just a settlement.

[00:25:03] Speaker 02:
My memory is consistent with my friends, and that is that

[00:25:07] Speaker 02:
there was evidence in the record.

[00:25:10] Speaker 00:
I did look at his reference in the brief and I didn't seem to go to anything.

[00:25:14] Speaker 02:
So I will rely on his admission that the potential damages were two to four million dollars and I think it as lawyers we can agree that the damages from the acute carbon monoxide poisoning event in July of 2000

[00:25:33] Speaker 02:
And 19 greatly dwarfed $1.2 million.

[00:25:36] Speaker 02:
It resulted in permanent injuries, hospitalization, permanent care required, and things of that nature.

[00:25:44] Speaker 02:
And so State Farm did the right thing by recognizing its obligation to pay the $300,000 in packaging it.

[00:25:51] Speaker 02:
And I would just state that this tragic result, at least from the standpoint of Mr. Lee, could have been avoided had he chosen to

[00:26:03] Speaker 02:
to insure himself with a higher policy limit or a commercial liability umbrella policy or an excess policy, but from the standpoint of... So when you mention that in your brief, that's what you're referring to, because I took the statement

[00:26:22] Speaker 00:
that he could have had the opportunity to buy his way out of the anti-stacking clause.

[00:26:29] Speaker 00:
But if I'm understanding you today, you said he could get excess, he could get umbrella, he could do something else.

[00:26:36] Speaker 02:
It still would have been a single occurrence event.

[00:26:39] Speaker 02:
And ultimately, I don't think it matters that if there was not anti-stacking language in the context of this case.

[00:26:49] Speaker 02:
Because this is not a long tail

[00:26:52] Speaker 02:
damage injury case, as was the situation in continental casualty where we're dealing with environmental waste dumped into the string fellow acid pits in Southern California, or the pigeon dust case of a tamed specialty where there is an indivisible injury that occurs progressively over a period of time.

[00:27:17] Speaker 02:
That's not this case.

[00:27:20] Speaker 02:
This is not a long tail case.

[00:27:22] Speaker 02:
There is no independent damage in any policy period that predates the one that was issued by State Farm.

[00:27:33] Speaker 02:
Court has any additional questions?

[00:27:35] Speaker 02:
I'll just close very quickly.

[00:27:36] Speaker 01:
I did wonder about the other, the non-bodily injury towards the nuisance and habitability.

[00:27:45] Speaker 01:
Why don't they fall within the policy coverage for personal and advertising injury?

[00:27:51] Speaker 02:
Because the only one that would potentially qualify was the cause of action or the offense of wrongful eviction.

[00:27:59] Speaker 02:
But that is causally related to and inextricably linked with the same occurrence, which is the defective wall heater.

[00:28:09] Speaker 02:
The other claims are habitability claims.

[00:28:14] Speaker 02:
And there's no express provision in the policy that extends to those.

[00:28:19] Speaker 02:
It used to be the case that the policies would apply to invasion of the right of private occupancy, which the courts

[00:28:28] Speaker 02:
found could extend to habitability claims.

[00:28:32] Speaker 02:
This policy language is different.

[00:28:35] Speaker 02:
It is narrowly focused to wrongful entry or invasion of privacy into the room of the person.

[00:28:44] Speaker 02:
There is no invasion of right of private occupancy and there's

[00:28:48] Speaker 02:
Those those claims are outside the scope of the insuring agreement in the first place and what about the I?

[00:28:54] Speaker 02:
Thought that in California under Martin Marietta at least in certain contexts a nuisance could be treated as a Invasion or an wrongful entry into the property so That's a nuisance so the nuisance I will refer the court's attention to again the Safeco case that also involved a nuisance claim and that was the

[00:29:18] Speaker 02:
And I think that argument was expressly rejected because the insured pointed to post landslide nuisance, which was a continuing nuisance claim.

[00:29:31] Speaker 02:
In that case, the court found that it was all causally related to the landslide, so it didn't matter if it continued into the next period or not.

[00:29:47] Speaker 02:
And again, because of the limits of liability section in our policy, the anti-stacking language would also apply to that.

[00:30:01] Speaker 02:
It applies to both bodily injury and the personal and advertised injury offense.

[00:30:06] Speaker 00:
And I gather State Farm did not file a DEC action.

[00:30:09] Speaker 02:
We did not file a DEC action.

[00:30:13] Speaker 01:
Thank you.

[00:30:14] Speaker 01:
Thank you.

[00:30:15] Speaker 01:
Rebuttal?

[00:30:17] Speaker 04:
Thank you, just briefly.

[00:30:19] Speaker 04:
First, this is actually more like a long-tail injury situation.

[00:30:24] Speaker 04:
This was progressive carbon monoxide poisoning and the treating neurologist, we submitted that evidence at summary judgment, who pegged the onset of the injury at the time the heater began to malfunction several years prior to the catastrophic event that led to the hospitalization.

[00:30:41] Speaker 04:
Secondly, with regard to

[00:30:44] Speaker 04:
The wrongful eviction claim being the same as the heater malfunction, that's disputed as well.

[00:30:51] Speaker 04:
We didn't get a chance to litigate sort of that issue because the district court sort of glossed over never made a decision with respect to whether the other... What were the bases that you alleged were the wrongful eviction?

[00:31:03] Speaker 04:
The wrongful eviction, it was actually more broadly stated under

[00:31:07] Speaker 04:
The umbrella violation of San Francisco Rent Ordinance Section 37.10B, which enumerates a laundry list of landlord tenant, so-called anti-harassment is the label, but it actually laundry lists a set of prohibited activities as to the landlord.

[00:31:25] Speaker 04:
And so the allegation was that there were a whole host of habitability defects, including water intrusion and so on and so forth.

[00:31:34] Speaker 04:
And then it was also, the thrust of it was, too, that these were, Wimmer's failure to repair was all calculated to drive the tenant out of the unit.

[00:31:43] Speaker 04:
So that was the thrust of the allegation.

[00:31:46] Speaker 04:
We never actually litigated that issue because the district court didn't reach sort of the other, whether the other claims were covered, could have been covered, whether they were also possible other occurrences.

[00:31:57] Speaker 04:
So the other point I just want to make is that even if, as counsel said,

[00:32:03] Speaker 04:
the so-called anti-stacking language addressed the issue that was found to be missing in attain, that argument fails if these successive renewals are treated as independent contracts.

[00:32:15] Speaker 04:
So that is it.

[00:32:19] Speaker 04:
And I would just conclude by pointing to if these are not successive contracts, ABS Clothing made a comment that's apt here.

[00:32:29] Speaker 04:
that the premium payments for three years of coverage, which in fact did not exist, those were things that were being made by my client.

[00:32:35] Speaker 04:
So on that basis, submitted.

[00:32:38] Speaker 04:
Thank you very much.

[00:32:38] Speaker 01:
Thank both counsel for their arguments.

[00:32:40] Speaker 01:
And the case is submitted, and we are adjourned.