Opinion
Horsemen’s Benevolent and Protective Association, Inc. (Horsemen’s), appeals from the summary judgment granted in favor of respondent Insurance Company of North America (INA) on Horsemen’s complaint for bad faith breach of insurance contract, breach of fiduciary duties, misrepresentation and fraud and breach of duties under Insurance Code section 790.03. We affirm.
I
Preliminarily we note that on motion for summary judgment the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.
(Miller
v.
Bechtel Corp.
(1983)
Underlying lawsuits—the Rivera action
Horsemen’s is an organization which provides benevolent and financial assistance to its members, approximately 50,000 licensed owners and trainers of thoroughbred horses. For the benefit of its members, Horsemen’s purchased a public liability insurance policy from the Bellefonte Insurance Company for the time period January 1, 1978, to Jаnuary 1, 1980. Horsemen’s represented to its members, in two publications, that the Bellefonte policy included liability for accidents occurring on the racetrack. However, the policy contained an expliсit exclusion, for “bodily injury to any person while . . . rac[ing,] . . . exercising or training any horse.”
On July 10, 1979, jockey Armando Rivera was injured permanently during a training session at the Sonoma County racetrack. Rivera filed a lawsuit against three mеmbers of Horsemen’s; the owners of the horse which collided with the horse upon which he was riding, Harris Farms, Inc., and Kemper Marley, Sr., and the trainer, Gregory Gilchrist. The Rivera defend *819 ants tendered their defense to Bellefonte, under their belief that the policy acquired by Horsemen’s for their benefit provided coverage.
In turn, based on the racing and training exclusion, Bellefonte filed a declaratory relief action against the three Rivеra defendants and Horsemen’s, seeking a declaration that its policy provided no liability coverage for this accident. The Rivera defendants filed separate cross-complaints against Horsemen’s, аlleging that in its official publications it had misrepresented the extent of coverage provided in the Bellefonte policy.
Horsemen’s tendered the defense of the cross-complaint to INA, one of several insurance companies from which it had purchased a general liability policy for its business activities. However, INA denied coverage and refused to provide Horsemen’s a defense based on the follоwing provisions of the policy: “The Company will pay on behalf of the Insured, except as hereafter provided, all sums which the Insured shall become legally obliged to pay as damages because of: [¶] . . . Persоnal Injury or [¶] . . . Property Damage caused by an occurrence during the policy period and within the policy territory.” “ ‘Occurrence’ ” is defined as “an accident, including continuous or repeated exposure to conditions, which results in personal injury or property damage neither expected nor intended from the standpoint of the Insured; [¶] . . . ‘Personal injury’ means bodily injury or if arising out of bodily injury, mental anguish. . . . [¶] . . .‘Property damage’means (1) physical injury to or destruction of tangible property including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed[.]”
The instant action
Horsemen’s settled thе claims of Harris, Marley and Gilchrist. It then filed a complaint against INA and other insurers for bad faith breach of the insurance contract, among other causes of action, for the failure to defend or indemnify Horsemen’s in connection with the cross-complaints filed by the Rivera defendants in the declaratory relief action instituted by Bellefonte. The complaint alleges that INA’s failure to indemnify and defend Horsemen’s in the action gаve rise to the various causes of action.
The papers submitted by INA in support of summary judgment demonstrate that the cross-complaints of the Rivera defendants resulted from Horsemen’s misrepresentations and omissiоns in connection with the Bellefonte policy. The INA policy provided no coverage for such liability. Horsemen’s did not become liable to the cross-complainants because of any personal injury or property damage suffered by them.
*820 In its opposing declarations, Horsemen’s conceded that the publications informing its membership of the Bellefonte policy failed to make reference to the rаcing and training exclusion.
II
The sole issue presented by Horsemen’s appeal is whether a triable issue of material fact exists as to the existence of coverage under the INA policy for the liability created by the cross-complaints. Horsemen’s argues that it became liable to cross-complainants Harris, Marley and Gilchrist “because of personal injury” as defined in the policy. If not for Rivera’s personal injury, Horsemen’s submits, it would not have become liable in the subsequent cross-complaint. Horsemen’s argument is unpersuasive.
A summary judgment motion shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In order to prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff’s casе or establish a complete defense.
(LaRosa
v.
Superior Court
(1981)
The papers submitted in connection with the summary judgment here conclusively demonstrate the INA liability policy for personal injury or property damage did not provide coverage for the defense or indemnity of the cross-complaints against Horsemen’s. The three cross-complaints against Horsemen’s were premised on allegations of fraud or intentional and negligent misrepresentation concerning the racing and training exclusion in the Bellefonte policy. The cross-complainants did not allege liability on the part of Horsemen’s for any personal injury or property damagе suffered by them.
The case at bench is analogous to the opinion in
International Surplus Lines Ins. Co.
v.
Devonshire Coverage Corp.
(1979)
Devonshire tendered the claim to Hartford, its general liability insurance carrier, relying on the policy provision that: “ ‘The Company will pay on
*821
behalf of the insured all sums which the insured shall become
legally obligated to pay as damages
because of. . . proрerty damage . . . caused by an occurrence ....’”
(International Surplus Lines. Ins. Co.
v.
Devonshire Coverage Corp., supra,
Similarly, while the claim against the Rivera defendants was because of personal injury, their cross-complaint against Horsemen’s was because of misrepresentation and fraud. These claims сannot be considered as constituting claims for personal injury or property damage as contemplated by the INA general liability policy.
In its argument, Horsemen’s relies heavily on the inapposite opinion in
Globe Indem. Co.
v.
State of California
(1974)
In the first instance, Globe is distinguishable from the сase here because the “occurrence” which triggered Horsemen’s liability was its misrepresentation and fraud as to the Bellefonte policy, and not Rivera’s riding acci *822 dent. In Globe, the “occurrence” was the fire сaused by the insured’s negligence, a covered event under the policy. Additionally, unlike Globe, cross-complainants are not seeking to recover compensation for any personal injury or property damage for which Horsemen’s is legally responsible. Globe is inapplicable to the instant case.
The absence of coverage under the INA policy conclusively negates Horsemen’s causes of action for bad faith breach of contract as no duty tо indemnify or defend existed here. (See
Nichols
v.
Great American Ins. Companies
(1985)
The judgment is affirmed.
White, P. J., and Strankman, J., concurred.
On August 27, 1990, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied October 18, 1990. Mosk, J., was of the opinion that the petition should be granted.