The issue presented is the interpretation of the word “occurrence” in the excess workers’ compensation policies provided to appellant Supervalu, Inc., doing business as Albertson’s, Inc. (Supervalu), by respondents TIG Insurance Company (TIG), Continental Casualty Company (Continental) and Wexford Underwriting Managers, Inc. (Wexford) (collectively respondents). The trial court concluded that Supervalu was required to pay a self-insured retention every time an employee sustained injury due to an accident or occupational disease. It granted summary adjudication in favor of TIG and Continental and summary judgment in favor of Wexford. The parties dismissed their remaining claims without prejudice in order to facilitate this appeal. Supervalu appeals on the following grounds: (1) in the workers’ compensation industry, “occurrence” means a claim that results in one award or compromise and release regardless of the number of injuries involved, and this technical meaning controls interpretation of the insurance policies; (2) Continental and TIG are estopped from asserting a new interpretation, i.e., that an award or compromise and release is not a single occurrence because it involves multiple injuries; (3) TIG was not entitled to summary adjudication as to the claim involving William Lecky (Lecky) because it was not entitled to reimbursement, and its claim was time-barred; (4) Continental was not entitled to summary adjudication of the declaratory relief cause of action in its first amended cross-complaint because the motion did not resolve an entire cause of action; (5) Continental is not entitled to prejudgment interest on its reimbursement claim during the period that Wexford prevented Supervalu from paying its debt; (6) summary judgment for Wexford was error because it was a proper party to Supervalu’s declaratory relief cause of action; and (7) the trial court erred when it refused to permit Supervalu to amend its pleading to allege a claim against Wexford for negligent misrepresentation. We find no error and affirm.
FACTS
The TIG policies
From 1989 to 1994, TIG provided Supervalu with excess workers’ compensation insurance. Supervalu’s self-insured retention for each occurrence was $500,000. The TIG policies provided that the indemnity coverage was “subject to the following aggregate and per occurrence limitations. [TIG’s] maximum limit of liability thereunder for loss arising out of any one occurrence shall not exceed: [|] $1,000,000 ... [1] [i]n excess of [Supervalu’s] retention . . . applicable to each occurrence. . . .” Subject to certain conditions, the coverage provision provided that TIG would indemnify Supervalu “for loss resulting from an occurrence during the contract period
The Continental policies
Continental provided Supervalu with excess workers’ compensation insurance from 1994 to 2006. The self-insured retention and coverage were essentially the same as in the TIG policies. 1
This action
Supervalu sued TIG, Continental and Wexford for declaratory relief. As to Continental and Wexford, Supervalu also alleged causes of action for breach of contract and bad faith. The complaint alleged: TIG and Continental provided Supervalu with excess workers’ compensation insurance from May 1, 1990, to June 2006. Though the policies were backed by TIG and Continental, they were issued by Wexford. It acted as their exclusive agent for underwriting, policy issuance and claims handling. The policies provided that TIG and Continental would indemnify Supervalu for loss in excess of the self-insured retention “resulting from an occurrence.” For 15 years, respondents interpreted occurrence to mean a single, overall disability rating. In 2005, respondents asserted that when multiple injuries led to a single, overall disability rating, each injury was an occurrence subject to the self-insured retention. They refused to pay certain disputed claims based on the theory that the self-insured retention had not been reached. The disputed claims pertained to Katherine Devine, Gwen Dunnham, Kenneth Subia, Clifford Sugawara, Johnny Boydston (Boydston), Lecky, Yvonne Henry, Joella Rihner and Gloria Aguirre.
Continental cross-complained against Supervalu for breach of contract and declaratory relief. As alleged, Supervalu breached the Continental policies by, among other things, using “an incorrect formula to aggregate multiple injuries sustained by [Supervalu] employees into one injury.”
TIG cross-complained against Supervalu for declaratory relief, quasi-contract, book account, money had and received, apportionment and contribution, indemnity, and interference with contractual relations. In particular, TIG sought a declaration that it did not owe benefits regarding the Boydston or Lecky claims. TIG requested reimbursement of the sums previously paid.
Continental moved for summary adjudication of the declaratory relief claim in its first amended cross-complaint and of the declaratory relief and bad faith causes of action in Supervalu’s complaint. The motion asserted, inter alia, that each accident resulting in bodily injury and each occupational disease constitutes a separate occurrence under the Continental policies. TIG moved for summary adjudication and requested: a declaration that occurrence refers to a single accident resulting in bodily injury or a single occupational disease subject to a separate self-insured retention; a declaration that TIG has no duty to indemnify Supervalu unless it presents a claim that it sustained loss and claim expenses as a result of an occurrence that exceed the self-insured retention; a declaration that TIG has no duty to cover the Lecky claim; and an order awarding TIG $245,490.01 pursuant to its causes of action for quasi-contract and money had and received. Wexford moved for summary judgment or adjudication on the theory that it is an underwriting agent that cannot be liable for breach of contracts to which it was not a party.
On December 5, 2007, Supervalu filed an application for an order shortening time to hear a motion for leave to file an amended complaint. In the alternative, it requested an order rescheduling the summary judgment and summary adjudication motions to a date after January 16, 2008. 2
On December 7, 2007, Supervalu set a motion for leave to amend the complaint for January 16, 2008. The proposed pleading alleged a new claim against TIG for refusing to pay benefits, and claims against Wexford for failing to disclose Continental’s intention to change its interpretation of the policy language and for failing to report claims to TIG and Continental.
At the January 2, 2008, hearing on Continental’s motion, the trial court was reminded of Supervalu’s pending ex parte application for an order
The trial court granted summary adjudication of TIG’s cause of action for reimbursement of money paid on the Lecky claim. The trial court reiterated its belief that one award was not the equivalent of one occurrence. It then ruled: Each of the occurrences happened in 1996, which was outside TIG’s coverage. Nonetheless, TIG paid $245,490.01 in benefits on the Lecky claim. TIG was entitled to reimbursement.
Last, the trial court granted Wexford’s motion. The trial court ruled that Wexford could not be liable for breaching policies to which it was not a party.
The parties agreed to dismiss their remaining causes of action without prejudice. Judgment was entered.
This appeal followed.
STANDARD OF REVIEW
Summary judgment is subject to independent review.
(Reyes v. Kosha
(1998)
DISCUSSION
Supervalu argues that the phrase “per occurrence” in the policies refers to a claim which results in one award or compromise and release; Continental and TIG are estopped from asserting a new interpretation; the trial court erred when it granted TIG’s motion for summary adjudication as to Lecky; the trial court’s ruling as to Continental was procedurally improper; Wexford should not be immunized from liability; prejudgment interest cannot accrue during the time a creditor prevents payment of the debt; and the trial court should have allowed Supervalu to amend to allege negligent misrepresentation against Wexford.
Upon review, we find no error.
I. Interpretation of occurrence.
Supervalu contends that an occurrence refers to a situation in which there is one award or compromise and release even if the employee sustained multiple injuries. This contention requires contract interpretation.
A. The law.
The ordinary rules of contract interpretation apply when construing terms in an insurance policy.
(London Market Insurers v. Superior Court
(2007)
To the extent the foregoing rules involve parol evidence,
4
the evidence is admissible as follows: “The determination whether to admit parol evidence involves a two-step process. ‘First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine “ambiguity,” i.e., whether the language is “reasonably susceptible” to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is “reasonably susceptible” to the interpretation urged, the extrinsic evidence is then admitted to aid the second step—interpreting the contract.’ ”
(General Motors Corp.
v.
Superior Court
(1993)
B. Patent ambiguity.
Supervalu argues that the contract language is ambiguous on its face and the trial court erred in not considering extrinsic evidence.
A term in an insurance contract is ambiguous if it is capable of two or more reasonable constructions.
(London Market, supra,
The policies insured Supervalu “for loss resulting from an occurrence during the contract period on account of [Supervalu’s] liability for damage because of bodily injury or occupational disease sustained by employees.” Loss was defined as the amount paid in benefits in settlement of claims or satisfaction of awards or judgments. With respect to bodily injury, “occurrence” was defined as an accident. “Occupational disease” was defined as cumulative injuries. Further, the policies provided that occupational disease “sustained by each employee shall be deemed to be a separate occurrence and occurrence shall be deemed to take place on the date upon which the employee is last exposed at work to conditions allegedly causing such occupational disease.”
We cannot concur.
The definition of occurrence does not distinguish between situations in which single employees or multiple employees are injured. This is because an occurrence is an event—either an accident or occupational disease. In the case of an accident, the number of employees injured is not relevant. It could be one or many and it would still be one occurrence. In contrast, there are as many occurrences—singular or plural—as there are employees who suffer occupational disease.
But absence of patent ambiguity does not end the analysis. Ambiguity can be established through extrinsic evidence.
C. Latent ambiguity.
The initial question under
General Motors, supra,
On its face, the contractual language is not ambiguous. It suggests that an occurrence involves either an accident or cumulative injuries. In other words, occurrences are events which cause an employee to suffer damage, i.e., they are referred to as events sustained by an employee, not Supervalu. An award or a compromise and release compensate an employee for damage. If Supervalu is liable to pay the benefit, it is defined as a loss. Further, awards and settlements are deliberate actions and cannot be called accidents. Neither is it reasonable to conclude that, for purposes of occupational disease, awards and settlements take place on the date upon which the employee was last exposed to deleterious conditions. Because accidents and occupational diseases precipitate awards and settlements, there is a necessary temporal distinction that factors into our analysis. Nonetheless, extrinsic evidence is admissible to shed light on the meaning of the contractual language if it shows that the language is reasonably susceptible to Supervalu’s interpretation.
To demonstrate ambiguity, Supervalu submitted declarations from various workers’ compensation industry insiders.
Rachael Ruther declared: “In my experience, where injuries to an employee become permanent and stationary at the same time, the [workers’ compensation judge] will resolve those claims together, either by a findings and award, a compromise and release or a stipulated findings and award. By custom and practice in the industry, this would be considered one claim for purpose of applying amounts paid toward exhaustion of a self-insured retention.”
Other declarants offered similar evidence.
Supervalu argues that this custom and practice evidence was admissible and controlling under section 1644 because occurrence was used in a technical sense or had special meaning. This argument is unavailing.
The problem is that the declarants suggest an industry definition of occurrence that is antithetical to the contractual language. Occurrence, as we have indicated, is a cause of employee damage rather than the loss to Supervalu. Parol evidence is not admissible “to flatly contradict the express terms” of an agreement.
(Winet
v.
Price
(1992)
Section 1644 does not trump this analysis. Supervalu did not advert to evidence that the parties used occurrence in a technical sense or gave it special meaning. By this we mean that the declarants did not set forth evidence that the parties negotiated the contract language. They simply declared the meaning given to the word in the industry. Under section 1645, technical words cannot be interpreted as usually understood by persons in the insurance industry if the words are clearly used in a different sense. Here, occurrence was clearly used in a different sense. Moreover, section 1644 is just one of many rules, and it is still subject to the prohibition in
General Motors, supra,
Labor Code section 3208.2 provides: “When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit.” Labor Code section 5303 provides: “There is but one cause of action for each injury coming within the provisions of this division. All claims brought for medical expense, disability payments, death benefits, burial expense, liens, or any other matter arising out of such injury may, in the discretion of the appeals board, be joined in the same proceeding at any time; provided, however, that no injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury; nor shall any award based on a cumulative injury include disability caused by any specific injury or by any other cumulative injury causing or contributing to the existing disability, need for medical treatment or death.” These two statutes illustrate that even if there is a master file, benefits must be apportioned.
II. Waiver and estoppel.
Supervalu argues that there is a triable issue as to whether respondents are barred by waiver and estoppel from asserting their interpretation of the policies. The record establishes otherwise.
Waiver is an intentional relinquishment of a known right after knowledge of the facts. It may be either express or implied.
(Waller v. Truck Ins. Exchange, Inc.
(1995)
Pertinent here is the following wrinkle. “ ' “ ‘The rule is well established that the doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom, and the application of the doctrines in this respect is therefore to be distinguished from the waiver of, or estoppel to assert, grounds of forfeiture. ...’”’ [Citation.]”
(Manneck
v.
Lawyers Title Ins. Corp.
(1994)
Supervalu suggests that waiver and estoppel are triggered because respondents paid past claims and settlements without requiring apportionment between events causing damage to employees. But Supervalu does not point to any evidence that respondents intentionally waived their rights as to current claims. Further, the policy language does not cover any risks except liability for benefits above the self-insured retention for each accident and occupational disease. As a consequence, Supervalu is asserting estoppel to expand coverage under the policies, which is impermissible, rather than to simply avoid a forfeiture of benefits. The consequence is plain under case law. Supervalu cannot establish waiver or estoppel.
III. Summary adjudication for TIG.
Supervalu contends that TIG was not entitled to reimbursement of the $245,490.01 it paid on the Lecky claim. In the alternative, Supervalu contends that it cannot be held liable for a portion of the prejudgment interest because it was prevented from paying the debt by Wexford, TIG’s agent.
These contentions lack merit.
TIG provided excess workers’ compensation insurance to Supervalu until May 1, 1994. And, according to Supervalu, the workers’ compensation judge found that Lecky suffered a specific injury to his hand on April 17, 1996, and two periods of cumulative trauma, each concluding on June 11, 1996. As to the specific injury, the occurrence happened on the date of the accident, which was April 17, 1996. As to the cumulative traumas, the occurrences happened on the last day of exposure to the deleterious conditions, which was June 11, 1996. The trial court properly ruled that these occurrences were not covered. The indemnity provision only applies to liability from occurrences within the policy period.
Supervalu tacitly concedes the trial court’s finding that the Lecky claim did not fall within any coverage provisions. It argues, however, that TIG cannot obtain relief for quasi-contract and money had and received.
If an entity obtains a benefit that it is not entitled to retain, the entity is unjustly enriched. The aggrieved party is entitled to restitution, which is synonymous with quasi-contractual recovery. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 1013, p. 1102.) “As a general rule, equitable concepts of unjust enrichment dictate that when a payment is made based upon a mistake of fact, the payor is entitled to restitution unless the payee has, in reliance on the payment, materially changed its position. [Citation.]”
(City of Hope Nat. Medical Center
v.
Superior Court
(1992)
Supervalu suggests that the existence of a contractual relationship precludes quasi-contract relief. It adverts to 4 Witkin, California Procedure (5th ed. 2008) Pleading, § 561, page 688, which cites
Minor v. Baldridge
(1898)
The parties in
Minor
entered into an agreement which required the plaintiff to make installment payments dependent on the defendant’s progress in building a railroad.
(Minor, supra,
Next, Supervalu assails TIG’s award by arguing that it cannot credibly claim that it made the payment by mistake. This argument, however, is unsupported by even a cursory assessment of the underlying record.
Supervalu states, “TIG or its agent had all of the facts before any payments were made, including what its own policy provided, the dates alleged, and the date of surgery. TIG now claims it was ‘mistaken’—for 15 years—about what its own policy really meant, presumably asserting a mistake of law. But changing one’s mind is not a mistake.” There is no citation to TIG’s cross-complaint, its separate statement, or its evidence. The absence of record citations undermines Supervalu’s attack. “[Statements of fact contained in . . . briefs which are not supported by the evidence in the record must be disregarded. [Citations.]”
(Tisher
v.
California Horse Racing Bd.
(1991)
Citing
City of Hope,
Supervalu contends that unless it misled TIG, then TIG cannot demand reimbursement.
City of Hope
involved a mistaken payment to a hospital, the insured’s third party creditor. The insurance company sued the hospital for restitution after determining that there was no coverage. The court stated: “Restitution will be denied ... if the mistaken payment is made to a bona fide creditor of a third person—a creditor without
The ensuing layer of argument is easily disposed of. Supervalu informs us that restitution is improper because it was not unjustly enriched. This is simply untrue. Supervalu obtained funds rightfully belonging to TIG and was spared from paying $245,490.01 out of its own pocket. It does not matter that Supervalu may have been entitled to coverage from Continental and therefore did not receive any more money than its contracts dictated. It unjustly received the money from TIG instead of Continental, which makes all the difference.
The foregoing aside, Supervalu implies that TIG waived its claim by failing to reserve its rights. Despite this, Supervalu does not tell us why the trial court misjudged the issue. The trial court cited
Ringler Associates Inc. v. Maryland Casualty Co.
(2000)
Last, Supervalu claims that TIG’s claim is barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338. This raises a variety of questions, such as when the cause of action accrued and when the statute of limitations expired. The trial court ruled that the statute of limitations did not begin running until the last payment was made, so TIG’s claim for reimbursement was not subject to a time bar. Supervalu chose to ignore this ruling. Beyond that, Supervalu did not analyze when the cause of action accrued. It states that TIG knew of Lecky’s three periods of injury as early as 1998, and that TIG received a copy of the joint findings and award in April 2002. Supervalu then states that TIG had to file its action by April 2005, at the very latest. Why? Supervalu never says. “ ‘[E]very brief should
B. Prejudgment interest.
Supervalu argues that it should not be held liable for prejudgment interest because Wexford, TIG’s agent, was at fault for reporting the Lecky claim to TIG instead of Continental. We disagree.
Section 3287, subdivision (a) provides: “Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt.”
The trial court awarded $69,947 in prejudgment interest from the date of demand, May 5, 2005. Nothing prevented Supervalu from paying the debt once TIG made a demand for payment.
IV. Summary adjudication for Continental.
Supervalu asks us to reverse summary adjudication in favor of Continental on the theory that it did not ask for a declaration regarding any particular claim and therefore did not resolve a cause of action. In essence, it argues that the order interpreting occurrence was not permissible. We disagree.
“Any person interested under a written . . . contract . . . who desires a declaration of his or her rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action ... for a declaration of his or her rights and duties .... He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.” (Code Civ. Proc., § 1060.)
Supervalu rejects this analysis. It cites
Hood v. Superior Court
(1995)
The reason
Hood
is not controlling is explained in
Southern Cal. Edison Co.
v.
Superior Court
(1995)
Because Continental merely requested contract interpretation in its declaratory relief cause of action, it did not subvert the purpose of Code of Civil Procedure section 437c, subdivision (f)(1). We agree with Southern California Edison that, with this fact pattern, Hood is not controlling.
To cap off its assignment of error, Supervalu urges us to conclude that the trial court improperly granted the motion because the declaratory relief cause of action presented only an abstract or academic dispute. It is true that declaratory relief requires an actual controversy, but one exists. The parties sued each other over whether Continental must pay excess benefits.
V. Summary judgment for Wexford; denial of the motion for leave to amend.
Wexford obtained summary judgment on the theory that it was an agent and could not be held liable for the actions of Continental and TIG. Supervalu argues that Wexford was a proper party to the declaratory relief cause of action because it sold the policies at issue and was an interested party. Next, Supervalu argues that it was error for the trial court to deny its motion for leave to amend the pleading to sue Wexford for negligent misrepresentation.
We turn to these issues and perceive no basis to reverse.
To establish that Wexford is a proper party to the declaratory relief claim in the complaint, Supervalu cites
State Farm General Ins. Co.
v.
Majorino
(2002)
More importantly, Supervalu has not adverted to any allegations in its complaint as to which there are triable issues. Nor has Supervalu pointed to the separate statements submitted by the parties or to material evidentiary conflicts. In an evidentiary vacuum, Supervalu states that the policies impose “an important duty on Wexford to transmit notice from [Supervalu] to the excess carrier. As just one example, if it was error to put TIG on notice of Lecky, and to fail to put [Continental] on notice, Wexford was the party who erred.” We have not been cited to policy language that supports these contentions. Even if we had been, Supervalu does not explain what declaration it is seeking as to Wexford. We have no obligation to guess. Suffice it to say, Supervalu’s arguments on this point have been waived.
This brings us to the denial of the motion for leave to amend. The trial court did not formally hear the motion. When told of the ex parte application for an order shortening time, it denied the motion due to lack of diligence and because it was brought too close to the trial date. To establish error, Supervalu relies on Code of Civil Procedure sections 426.50 and 473, subdivision (a)(1) for the proposition that a trial court can allow a party to file an amended pleading at any time during the course of an action. Supervalucites
Nestle v. City of Santa Monica
(1972)
In its opening brief, Supervalu does not cite any evidence to refute the finding that it lacked diligence, nor did Supervalu cite any law suggesting this was insufficient grounds for the order. As a result, Supervalu failed to demonstrate error. 5 All other issues raised in the appeal are moot.
The orders are affirmed.
Respondents shall recover their costs on appeal.
Boren, R J., and Doi Todd, J., concurred.
On June 24, 2009, the opinion was modified to read as printed above.
Notes
In its statement of the case, Supervalu avers that it purchased insurance from Wexford; Wexford contracts with insurance carrier partners who, for a portion of the premium, actually fund the loss; from May 1, 1990, to May 1, 1994, TIG was Wexford’s funding partner; from May 1, 1994, to May 1, 2006, Continental was Wexford’s funding partner; under the policies, Supervalu was required to notify Wexford of claims that might exceed the self-insured retention; Supervalu contracted with a third party administrator to adjust claims; and TIG and Continental had the right to participate in the investigation or defense of any claim that might involve excess exposure. Supervalu did not cite any evidence to support these contentions. Instead, it cited its unverified complaint and statements in its opposition to Wexford’s motion for summary judgment or adjudication.
Supervalu did not provide us with either a reporter’s transcript from December 5, 2007, or a minute order resolving the ex parte application.
All further statutory references are to the Civil Code unless otherwise indicated.
The parol evidence rule is set forth in Code of Civil Procedure section 1856. Subdivision (c) of the statute provides that the terms in a writing intended as a final expression of the parties’ agreement “may be explained or supplemented by course of dealing or usage of trade or by course of performance.” (Code Civ. Proc., § 1856, subd. (c).)
In its reply, Supervalu argues for the first time that the trial court erred by failing to consider whether an amendment would prejudice Wexford. We decline to consider this issue. “ ‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]”
(Wurzl
v.
Holloway
(1996)