Lead Opinion
Opinion
This appeal requires us to determine what an insured must prove in order to establish its rights under a lost or destroyed insurance policy. The trial court found that the insured had introduced sufficient secondary evidence to prove the substance of the policy’s material provisions, and rendered judgment for the insured. The Court of Appeal held that the insured was required instead to prove the actual words of those provisions, and reversed the judgment. As will appear, we conclude that the holding was erroneous, and therefore reverse the Court of Appeal’s judgment, with some issues outside the scope of review to be determined on remand.
Facts
From the 1940’s until the late 1960’s, Rexall Drug Company (Rexall), predecessor in interest of plaintiff Dart Industries, Inc. (Dart), was one of a number of pharmaceutical companies that manufactured and marketed the prescription drug diethylstilbestrol (DES), a synthetic estrogen widely used at the time to prevent miscarriages.
Throughout this period, Rexall carried comprehensive general liability (CGL) insurance under policies issued in sequence by its three primary carriers: Employers Liability Assurance Corporation, Ltd. (Employers), predecessor in interest of defendant Commercial Union Insurance Corporation (Commercial Union), for the years 1946-1951; Liberty Mutual Insurance Company (Liberty Mutual), for the years 1951-1966; and Continental Insurance Company (Continental), for the years 1967-1981.
From the mid-1970’s onward, a large number of claimants alleging personal injuries caused by exposure to DES began filing actions for damages against DES manufacturers nationwide. The majority of claimants were adult women whose mothers had ingested DBS while the claimants were in útero and who, when they reached childbearing age themselves, manifested precancerous and cancerous vaginal and cervical lesions, as well as various deformities of their reproductive organs resulting in infertility or miscarriages. (See generally Brown v. Superior Court (1988)
In October 1984, Dart filed the present action for declaratory relief and damages against Commercial Union, Liberty Mutual, and Continental. The primary relief sought was a declaratory judgment (Code Civ. Proc., § 1060) establishing that the policies defendants sold to Dart and its
In October 1986, Dart settled with Liberty Mutual and Continental. Commercial Union declined to participate in the settlement. The remaining issue in the case, accordingly, was whether Dart was entitled to a defense and indemnity from Commercial Union under the policy in effect for the period of September 1, 1946, to September 1, 1951, i.e., Employers Policy No. CL92302.
This case has a long and convoluted procedural history, and has been the subject of no fewer than four appeals and four decisions of the Court of Appeal. We briefly review that history.
After various pretrial proceedings, Dart moved for preference in trial setting. The motion was denied, and shortly thereafter the court dismissed the action for failure to bring it to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.) Dart appealed. In the first appeal, the Court of Appeal held the trial court abused its discretion in denying the motion for preference, and reversed and remanded for trial. (Dart Industries, Inc. v. Commercial Union Ins. Co. (Feb. 28, 1992, B047651) [nonpub. opn.] (Dart Industries I).) The court also concluded that the trial court had properly denied Dart’s motion for summary judgment, and held that at trial Dart must prove the contents of the insurance policy by a preponderance of evidence, rejecting Commercial Union’s contention that proof must be by clear and convincing evidence.
The case was initially tried in 1993 before Judge Newell Barrett, sitting without a jury. Dart undertook to prove the existence and the substance of the material terms of the lost policy by means of the testimony of Charles Pyne, an employee of Obrion, Russell & Co. (Obrion), which served as the insurance agent of Employers, Commercial Union’s predecessor and a broker for the Dart account during the relevant period, as well as by various items of documentary evidence. Judge Barrett entered a minute order announcing a tentative decision in favor of Commercial Union on the ground that Dart had not proved the lost policy’s limits of liability. Dart requested a statement of decision (Code Civ. Proc., § 632), but Judge Barrett died before issuing such a statement. A second judge thereupon signed a judgment for Commercial Union based on Judge Barrett’s minute order. Dart appealed and the Court of Appeal reversed the judgment on the ground that a second judge is not authorized to sign a judgment based only on the first judge’s tentative decision. (Dart Industries, Inc. v. Commercial Union Ins. Co. (May 26, 1995, B083165) [nonpub. opn.].)
The case was assigned for retrial to Judge Loren Miller, Jr. By stipulation, the parties submitted the matter to him for decision on the basis of the record of the first trial, including the reporter’s and clerk’s transcripts and the exhibits, a videotape of the testimony given at the first trial, and new briefs. After reviewing this record, Judge Miller entered a minute order announcing a tentative decision in favor
The Court of Appeal held that Judge Miller’s statement of decision was insufficient as a matter of law because it failed to adequately explain the factual or legal basis for his decision on a number of issues identified by Commercial Union and deemed by the Court of Appeal to constitute “principal controverted issues at trial” (Code Civ. Proc., § 632). On this ground, the Court of Appeal reversed the judgment with directions to Judge Miller to issue a new statement of decision addressing certain additional issues and to enter a new judgment based thereon. (Dart Industries, Inc. v. Commercial Union Ins. Co. (June 27, 1997, B105886) [nonpub. opn.].)
As directed by the Court of Appeal and after further hearing, Judge Miller issued a substantially more detailed 29-page statement of decision and judgment. In the statement of decision, the court reviewed at length the evidence to support its findings that (1) Dart conducted a diligent and exhaustive search for the lost policy, but was unable to find it; (2) Dart proved the existence of the policy by secondary evidence; (3) the policy was a “manuscript policy, meaning that it was custom tailored to the insured,” rather than a standard form; (4) the policy covered Dart’s predecessor Rexall for the single five-year term from September 1, 1946, to September 1, 1951; (5) the policy provided coverage for product liability claims for bodily injuries occurring during the policy period, including injuries caused by DES exposure during that period but not manifesting themselves until after the period ended; (6) the policy provided occurrence-based coverage that would cover injuries initiated by the ingestion of the drug during the policy period but manifesting after that period; (7) the policy’s limits of liability were $100,000 per person and $300,000 per occurrence or accident, with a $300,000 annual product liability aggregate limit; (8) the policy did not contain a deductible; and (9) the policy covered defense costs separately from the limits of liability.
The court then reviewed the case law to support its conclusion that the “trigger of coverage” under the policy was exposure to DES rather than manifestation of the ensuing injury many years later. Because Dart’s several primary insurance carriers (Commercial Union, Liberty Mutual, and Continental) proposed different triggers of coverage, the court recognized the potential for either inadequate recovery or double recovery of benefits; to avoid that result, the court found equitable—and adopted—the method of allocating the insurers’ obligations devised by the parties, i.e., that Commercial Union should pay only 50 percent of the costs of defense and indemnity in actions against Dart arising from DES exposure during the 1946-1951 policy period.
In the ensuing judgment, entered on December 21, 1998, the court (1) declared the parties’ rights and liabilities under the policy in accord with the foregoing statement of decision; (2) awarded Dart damages of some $1.9 million for local defense costs, $550,000 for the allocated portion of the insured’s national coordinating defense counsel costs, and $260,000 for indemnity, plus prejudgment interest through 1992 of some $1.4 million; and (3) declared that Dart is entitled to recover from Commercial Union 50 percent of the defense costs and settlements incurred by Dart after 1992 in actions for damages arising from DES exposure during the 1945-1951 policy period. Commercial Union appealed again.
Dart petitioned for review. We granted its petition to determine what an insured must prove in order to establish its rights under a lost insurance policy, and whether the Court of Appeal correctly held that the evidence in the case at bar was insufficient to support the trial court’s findings regarding the contents of the lost policy.
I
We begin with the statutory law. Evidence Code section 1521, subdivision (a), provides that “[t]he content of a writing may be proved by otherwise admissible secondary evidence,” excepting when “[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion” or when “[ajdmission of the secondary evidence would be unfair.” The admission of oral testimony regarding the contents of a writing is specifically governed by section 1523, which provides, in pertinent part, that such testimony is admissible “if the proponent does not have possession or control of the original or a copy of the writing and . . . [f ] . . . [n] either the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means. . . .” (Cf. Fed. Rules Evid., rule 1004(1), 28 U.S.C.)
These statutes are codifications of the venerable common law rule that lost documents may be proved by secondary evidence. In Folsom’s Executors v. Scott (1856)
As was elaborated in Kenniff v. Caulfield (1903)
A corollary of the rule that the contents of lost documents may be proved by secondary evidence is that the law does not require the contents of such documents be proved verbatim. In Posten v. Rassette (1855)
This rule was reaffirmed in Kenniff, supra,
The lost document cases illustrate a few of the many types of secondary evidence that courts have admitted to prove the contents of a missing instrument. For example, courts have often admitted oral testimony for this purpose. (Kenniff, supra,
The use of secondary evidence was affirmed in the only two published California decisions involving lost insurance policies. In Clendenin v. Benson (1931)
In Rogers v. Prudential Ins. Co. (1990)
Having established that the contents of a lost insurance policy may be proved by secondary evidence, the question remains—what precisely must be proved. In an action on an insurance policy that has not been lost or destroyed, it is well settled that “[t]he burden is on an insured to establish that the occurrence forming the basis of its claim is within the basic scope of insurance coverage. [Citations.] And, once an insured has made this showing, the burden is on the insurer to prove the claim is specifically excluded.” (Aydin Corp. v. First State Ins. Co. (1998)
We see no reason not to apply this rule to a policy that has been lost or destroyed without fraudulent intent on the part of the insured. Thus, the claimant has the burden of proving (1) the fact that he or she was insured under the lost policy during the period in issue, and (2) the substance of each policy provision essential to the claim for relief, i.e., essential to the particular coverage that the insured claims. Which provisions those are will
II
We apply these rules to the case at bar. As noted at the outset, the primary issue at trial was whether Employers Policy No. CL92302 (hereafter, the policy) entitled Dart to a defense and indemnity from Commercial Union in litigation arising from exposure to DES between September 1, 1946, and September 1, 1951.
Some matters on which Dart, as the insured, has the burden of proof are undisputed in this case. It is undisputed that neither Dart nor Commercial Union now has a copy of the policy, and that Dart made a reasonably diligent but unsuccessful search for the policy. The trial court was therefore entitled to find that the policy was lost or destroyed, and that it was lost or destroyed without fraudulent intent on the part of Dart. Accordingly, the court properly admitted the secondary evidence offered by Dart to prove the material terms of the policy. Commercial Union does not dispute the point.
It is also undisputed that the policy was a CGL policy and was in effect from September 1, 1946, to September 1, 1951, and that Commercial Union’s predecessor in interest (Employers) issued the policy to Dart’s predecessor in interest (Rexall). The trial court was therefore entitled to find that Dart was insured under the policy during the period in issue. Again Commercial Union does not dispute the point.
Dart contends the Court of Appeal erred in requiring it to prove the material provisions of the policy by introducing evidence of the specific language used in those provisions. The point is well taken. As discussed above, there is no such evidentiary requirement to prove the contents of lost documents, be they insurance policies or otherwise. Although the Court of Appeal opinion acknowledges the general rule that
Thus, we understand the Court of Appeal’s holding as fashioning a special evidentiary rule with respect to insurance policies, an “actual language” rule, providing that the contents of such policies may only be proved by reproductions of the policy language, and that anything less does not, as a matter of law, constitute substantial evidence of these contents. The Court of Appeal reasoned that the meaning of an insurance policy, like that of any contract, is derived from examining its language and concluded that without such language, the contents of a policy cannot be determined.
Although it is a truism that we look to the language of a contract to ascertain its meaning, it is equally true that when a contract has been lost in good faith, and the actual language is unavailable, the law does not require proof of such language. Rather, as discussed above, the proponent of the lost document need only prove the relevant substance of the document. (Kennijf, supra, 140 Cal. at pp. 43-44; Posten v. Rassette, supra,
Commercial Union contends that in most lost insurance policy cases from other jurisdictions, there is at least an approximation of the actual language through specimen policies, standardized policies, policies from preceding or subsequent years, and the like. (See, e.g., Remington Arms Co. v. Liberty Mut. Ins. Co. (D.Del. 1992)
Commercial Union seeks to distinguish this case from other, noninsurance lost document cases on the ground that the latter involved fewer and simpler terms. The distinction is not legally significant. However few or many terms there may be, it remains necessary for the proponent of a lost deed, power of attorney or a money judgment—no less than a proponent of a lost insurance policy—to prove each of its provisions “essential to the claim for relief.” (Evid. Code, § 500.)
The trial court was thus correct in declaring that “Dart must prove with secondary evidence the existence and terms of the coverage material to the risk at issue. This does not mean that Dart is required to prove the policy’s contents verbatim. Rather, it must prove the substance of the Employers’ Policy with sufficient evidence to show coverage for the DES claims.” As noted above, the trial court found in detail that Dart had proved the substance of the material terms of the policy by sufficient secondary evidence, and entered judgment accordingly. We turn next to specific challenges to the trial court’s findings on the grounds that they were not supported by substantial evidence.
III
The Court of Appeal opinion identified only one finding assertedly unsupported by the evidence: that the lost policy was an occurrence-based policy in that it provided coverage for exposure to DES during the policy period even if the injuries caused by that exposure were not discovered until after the policy period ended. The Court of Appeal’s opinion was not entirely clear as to the basis of its objection to this finding, but it appears it had two principal concerns. First, Charles Pyne’s testimony, which identified the policy as occurrence-based, essentially lacked probative value because it was “conclusory” and not corroborated by documentary evidence. Second, even if Pyne’s testimony established that the policy was in fact occurrence-based, such testimony was not sufficiently detailed to define that term and related terms so as to establish Commercial Union’s obligation to cover claims of individuals whose injuries ultimately arose from the ingestion of DES during the policy period. “Without any evidence of the language used in Dart’s missing policy, judicial interpretations of common words and phrases actually used in other CGL policies (e.g., ‘accident,’ ‘occurrence,’ ‘bodily injury’) are irrelevant.” We disagree with both points.
First, Pyne’s testimony was not conclusory. Pyne, a licensed insurance broker, was the manager of the Obrion office in Los Angeles during the years the policy was in effect. He became familiar with the product liability coverage of the policy by participating in a number of meetings at which that coverage was discussed; on another occasion, the insurance manager of Dart showed Pyne the policy and questioned
Nor was it necessary that Pyne’s testimony be corroborated by documentary evidence or otherwise. It is well established that “ ‘ “[t]he testimony of a [single] witness . . . may be sufficient” [to support a judgment].’ ” (In re Marriage of Slivka (1986)
The Court of Appeal dismissed this evidence on the ground that it “proves nothing.” The court reasoned that “[i]t is likely as not” that the Hinkle and Boone claims “were defended or paid as an accommodation to Dart” rather than as an obligation of coverage. But the trial court had expressly rejected this assertion as speculative. “There was no evidence produced that Employers ever paid claims that were not covered under the Employers Policy or that there was any practice of Employers to pay uncovered claims as an accommodation to its insureds.” Neither Commercial Union nor the Court of Appeal cites any evidence to the contrary. On this record, the trial court’s conclusion that it was probable that Commercial Union paid the Hinkle and Boone claims to comply with its contractual obligation is a reasonable inference, and as such it must be upheld on appeal. (Overton v. Vita-Food Corp. (1949)
The Court of Appeal is also incorrect that Pyne’s testimony was insufficiently detailed to permit determination of whether the policy covered injuries stemming from ingestion of DES during the policy period. He testified that he knew the meaning of the term “occurrence policy,” and defined it as one in which coverage is provided for “a happening . . . [that] would . . . take place during the policy term, but which might not be discovered until the expiration of the policy term.” He also testified that the policy covered personal injuries from defective products. Moreover, the trial court also found that DES-related
In sum, we conclude that the Court of Appeal erred in holding there was no substantial evidence to support the finding that the lost policy provided occurrence-based coverage and that such coverage included claims for injuries caused by DES exposure during the policy term but not manifesting until after the term ended.
IV
Commercial Union contends that Dart failed to prove a number of other material terms of the lost policy not discussed in the Court of Appeal opinion. The trial court, however, expressly found that Dart had sufficiently proved each such term. Commercial Union must therefore show the record is devoid of substantial evidence to support those findings. We conclude that it has failed to do so.
Commercial Union first complains of findings that the limits of coverage under the policy were $100,000 per person and $300,000 per occurrence, with a $300,000 product liability aggregate limit per year. For the first two of these limits, the trial court relied on both documentary evidence and testimony. The documentary evidence was a letter written in 1970 to Pyne by Herb Bennett, an agent in the Boston office of Obrion, replying to a query by Pyne as to whether the policy covered a certain claim by Rexall (now Dart). In his letter Bennett explained that Commercial Union had discarded the policy and could not produce it, but stated that according to Bob Forrest the primary policy limits were $100,000 and $300,000. The court found that Forrest was the Obrion partner who had negotiated the terms of the policy and was personally responsible for the Rexall account for many years. The court further found that Obrion had agency authority to give out information about the terms of a Commercial Union policy. On this basis, the court found the letter admissible as an authorized admission of a party. (Evid. Code, § 1222.) Commercial Union contends the trial court erred in admitting such testimony.
The rule is that “ 1 “whatever is said by an agent, either in the making of a contract for his principal, or at the time, and accompanying the performance of any act, within the scope of his authority, ... of the particular contract or transaction in which he is then engaged, is, in legal effect, said by his principal, and admissible as evidence .... But declarations or admissions by an agent, of his own authority, and not accompanying the making of a contract, or the doing of an act, in behalf of his principal, ... are not binding upon his principal . . . and are not admissible . . ’ (4 Wigmore on Evidence, § 1078, p. 119. . . .)” (Miller v. Anson-Smith Construction Co. (1960)
The court also relied on Pyne’s testimony on the point, who declared that to his knowledge, based on his recollection from his reading of the policy, the policy limits were $100,000 and $300,000. Commercial Union again questions the credibility of Pyne’s testimony, but the question was exclusively for the trial court to resolve. We conclude there was substantial evidence supporting the trial court’s finding regarding the policy limits.
For its finding that the policy had a products liability aggregate limit of $300,000 per year, the trial court again relied on Pyne’s testimony that the policy so provided. The court also correctly observed that if the annual product liability aggregate limit were less than the product liability per claim limit (i.e., $300,000), the coverage would be illusory.
Commercial Union contends there was no substantial evidence to support the finding that the lost policy provided coverage for a single five-year term (from Sept. 1, 1946, to Sept. 1, 1951). For this finding, the trial court relied on certain documentary exhibits from 1961 regarding retrospective premium adjustments that expressly referred to a single policy, designated as policy No. CL 92302, for that term, corroborated by Pyne’s testimony to the same effect. Commercial Union speculates that the lost policy could equally well have been for five successive one-year terms, with possible annual changes in its material provisions, but no evidence supports that speculation.
Commercial Union next contends its contractual obligations may have been relieved or reduced by an “other insurance” clause.
First, Commercial Union points to testimony of Peter Fortuna, an underwriter at Commercial Union during the 1940’s and 1950’s, establishing that every policy issued by Commercial Union would have had one of three types of “other insurance” clauses: one that automatically rendered the policy null and void if there was any other insurance covering the same risk (a “null and void” clause); one that rendered it null and void up to the limit of coverage of the other policy, but paid any excess over that coverage within its own limits (a “null and void excess” clause); and one that prorated the. coverage between the two policies (a “pro rata” clause). Second, Commercial Union reasons that if Dart’s policy contained a “null and void” or “null and void with excess” clause, then it would not be liable for indemnification if there were other insurance with pro rata policies to cover these costs. At least some courts have held that when there are two primary insurance policies covering the same injury
We disagree that ignorance of the precise type of “other insurance” clause in a lost policy can be used to defeat the insurer’s obligations altogether. “Historically, ‘other insurance’ clauses were designed to prevent multiple recoveries when more than one policy provided coverage for a particular loss.” (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998)
Whether or not the above rale is universally applicable, it is clear that the obligation of successive primary insurers to cover a continuously manifesting injury is a separate issue from the obligations of the insurers to each other. As one Court of Appeal explained: “[Apportionment among multiple insurers must be distinguished from apportionment between an insurer and its insured. When multiple policies are triggered on a single claim, the insurers’ liability is apportioned pursuant to the ‘other insurance’ clauses of the policies [citation] or under the equitable doctrine of contribution [citations]. That apportionment, however, has no bearing upon the insurers’ obligations to the policyholder. [Citation.] A pro rata allocation among insurers ‘does not reduce their respective obligations to their insured.’ [Citation.] The insurers’ contractual obligation to the policyholder is to cover the full extent of the policyholder’s liability (up to the policy limits).”
Here, the evidence is undisputed that Commercial Union was a primary insurer during the relevant time period. Therefore, even if Commercial Union had a “null and void with excess” “other insurance” clause, all that would be established is that it had a right to seek some kind of contribution from successive insurers also liable to Dart. It would not relieve Commercial Union from either its obligation to indemnify or to defend Dart. Commercial Union is therefore incorrect that Dart’s inability to prove the type of “other insurance” clause found in its policy cancels its own obligations as a primary insurer.
Finally, Commercial Union contends there is insufficient evidence of the particular DES claims against Dart to justify the defense and indemnification obligations imposed on it by the trial court. We have already partly addressed this contention. As discussed, there is indeed substantial evidence to support the trial court’s finding that the policy in question covered injuries arising from DES ingestion during the policy period, and that therefore Commercial Union had a duty to defend and indemnify Dart. But there is a separate question of whether the evidence of DES claims presented by Dart justified the amount of damages. That question is not before us; it has nothing to do with proving the contents of a lost policy but rather concerns the validity of resolving insurance coverage claims in DES cases by relying on something less than an examination of each individual claim against the insured. (See Keene Corp. v. Ins. Co. of North America (D.C. Cir. 1981)
Therefore, on remand, the Court of Appeal is to apply the terms of the insurance policy, as delineated in the trial court’s findings, to determine whether there is sufficient evidence to support the amount of the trial court’s award of damages and defense costs.
V
The judgment of the Court of Appeal is reversed and the cause is remanded to the Court of Appeal for proceedings consistent with this opinion.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.
Notes
Although the policy was actually issued by Employers, Commercial Union succeeded to Employers’ liabilities. For simplicity, therefore, we shall generally refer to the policy as if it had been issued by Commercial Union. Likewise, our references to Dart include its predecessor Rexall.
Secondary evidence, of course, must comply with the rules governing the admissibility of evidence generally, including relevance (Evid. Code, § 351) and the hearsay rule (id., § 1200 et seq.).
“For example, if a personal injury claim is involved, there is no reason to offer evidence that the policy covers property damage liability.” (Brown & Sayad, Locating Missing Policies, and Proving the Existence and Terms of Policies That Cannot Be Found—From the Policyholder’s Perspective, Practising Law Inst. Commercial Law and Prac. Course Handbook Series (Mar. 1, 1986) 382 PLI/Comm. 131, 165-166.)
An issue that is not presented on this record is the standard or degree of proof required in lost insurance policy cases. In its decision in the first appeal (Dart Industries I), which ordered the first trial of the case, the Court of Appeal held the proper standard is proof by a preponderance of the evidence. That holding is the law of the case (Searle v. Allstate Life Ins. Co. (1985)
As we have explained: “Policies ‘are usually issued on standard forms containing terms and conditions drafted by the [insurer]. Often, the insurer is willing to modify or change the standard forms by “endorsements” .... Sometimes, the policy issued is entirely nonstandard and drafted for the particular risk undertaken’—a so-called ‘manuscript’ policy.” (Aerojet-General Corp. v. Transport Indemnity Co. (1997)
“Other insurance” clauses “limit an insurer’s liability to the extent that other insurance may cover the same loss.” (Croskey, supra, U 8-2, p. 8-1.) “ ‘Other insurance’ clauses become relevant only where several insurers insure the same risk at the same level of coverage. An ‘other insurance’ dispute cannot arise between excess and primary insurers.” (Id. at If 8-12, p. 8-3, italics in original.)
Concurrence Opinion
I reluctantly concur.
Like the majority, I agree that the “evidence of two other product liability claims against Dart [Industries, Inc. (Dart)]—known as the Hinkle and Boone claims—that Commercial Union Insurance Company (Commercial Union) paid under the policy here in issue” (maj. opn., ante, at p. 1075) supported the trial court’s finding that the policy provided occurrence-based coverage by a preponderance of the evidence (id. at pp. 1075-1076). As the majority explains, “the trial court’s conclusion that it was probable that Commercial Union paid the Hinkle and Boone claims to
Although I believe there was substantial evidence to support the trial court’s findings under a preponderance of the evidence standard, I would reach a different conclusion under a more stringent standard of proof. Dart’s evidence of the policy’s substance consisted of dubious witness testimony and a few documents hinting at the policy’s terms. Even when viewed in the light most favorable to the judgment, this evidence was barely sufficient to support the trial court’s finding that the policy covered the claims at issue here by a preponderance of the evidence. If, as the amici curiae contend, the trial court should have applied a clear and convincing evidence standard, I would have affirmed the Court of Appeal’s judgment without hesitation. Unfortunately, as the majority correctly explains, we are precluded from considering whether the trial court should have applied a different “standard or degree of proof’ by the law of the case. (Maj. opn., ante, at p. 1072, fn. 4.) Therefore, I grudgingly join my colleagues in reversing the judgment of the Court of Appeal.