Opinion
B226068
08-29-2011
AMERICAN MOTORISTS INSURANCE COMPANY et al., Plaintiffs and Respondents, v. THOMSON INC., et al., Defendants and Appellants.
Abelson | Herron, Michael Bruce Abelson, Leslie A. Pereira; Plews Shadley Racher & Braun, George M. Plews, Donna C. Marron and Karen B. Scheidler for Defendants and Appellants. Charlston, Revich & Wollitz, Ira Revich and James B. Green for Plaintiff and Respondent American Motorists Insurance Company. Foran Glennon Palandech Ponzi & Rudloff, Keith J. Turner, Thomas B. Orlando and Matthew S. Ponzi for Plaintiff and Respondent XL Insurance America, Inc. Berkes Crane Robinson & Seal, Steven M. Crane and Barbara Hodous for Plaintiff and Respondent Continental Casualty Company.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC413786)
APPEAL from a judgment of the Superior Court of Los Angeles County. Carl J. West, Judge. Affirmed.
Abelson | Herron, Michael Bruce Abelson, Leslie A. Pereira; Plews Shadley Racher & Braun, George M. Plews, Donna C. Marron and Karen B. Scheidler for Defendants and Appellants.
Charlston, Revich & Wollitz, Ira Revich and James B. Green for Plaintiff and Respondent American Motorists Insurance Company.
Foran Glennon Palandech Ponzi & Rudloff, Keith J. Turner, Thomas B. Orlando and Matthew S. Ponzi for Plaintiff and Respondent XL Insurance America, Inc.
Berkes Crane Robinson & Seal, Steven M. Crane and Barbara Hodous for Plaintiff and Respondent Continental Casualty Company.
In this insurance coverage dispute appellants Thomson, Inc. and Technicolor, Inc. (collectively Thomson) challenge summary judgments entered in favor of respondent insurers American Motorists Insurance Company (AMICO), XL Insurance Company, Inc. (XL), and Continental Casualty Company (Continental). The trial court found that the coverage provisions of the insurers' policies must be interpreted according to California law, and that under California law they provide no coverage for the asserted claims. Thomson seeks reversal of these judgments, and either entry of orders determining the existence of coverage in its favor against these insurers, or remand to the trial court for further proceedings. We affirm the judgment.
Factual and Procedural Background
1. The Parties and Their Insurance Policies
Thomson
Thomson, Inc. is incorporated in Delaware, with its headquarters in Indiana. It acquired Technicolor, Inc. in about 2001.
For many years Technicolor, Inc. or affiliated entities conducted film processing operations at sites in (among many other places) Los Angeles and North Hollywood, California. Technicolor, Ltd., which appears to be an affiliated entity, performed film processing operations in Middlesex, in the United Kingdom.
Technicolor, Inc. apparently was for some unidentified period a subsidiary of MacAndrews & Forbes Holdings, Inc.
Continental and Its Policies
Continental is incorporated and headquartered in Illinois. It issued commercial casualty insurance, including $100,000 per-occurrence comprehensive general liability coverage, to Technicolor, Inc. and various other insureds from January 1, 1972 to January 1, 1974.
AMICO and Its Policies
AMICO is incorporated and headquartered in Illinois. AMICO provided MacAndrews & Forbes Holdings, Inc., of New York, with comprehensive general liability insurance with $2 million per occurrence primary property damage liability coverage from March 1, 1986 to May 3, 1990, and $2 million per occurrence excess comprehensive catastrophe liability coverage from March 1, 1986 to April 1, 1987.
XL and Its Policies
XL, the successor to Winterthur International-America Insurance Company ("Winterthur") with respect to the policies at issue in this action, is incorporated in Delaware with its headquarters in Connecticut.
The record does not identify Winterthur's domicile.
Winterthur issued twelve relevant policies to Thomson, to Technicolor, Inc., or to affiliated entities. Six of those policies provided primary general liability coverage of $1 million per occurrence, from January 1, 2000 to January 1, 2006; four policies provided umbrella coverage of $25 million per occurrence from 2000 through 2004; two policies provided umbrella coverage of $3 million per occurrence for 2005 and 2006.
2. Thomson's Coverage Claims Against Its Insurers
In April 2009, Thomson notified AMICO, XL, and Continental (as well as other insurers not involved in this appeal) of claims asserted by environmental agencies in California and the United Kingdom requiring Thomson to clean up contaminated soil and groundwater and to pay expenses related to ongoing investigation and environmental pollution remediation at Technicolor's film processing sites in Los Angeles, North Hollywood, and the United Kingdom. Thomson's notifications demanded that the insurers provide it with a defense with respect to these claims.
The insurers denied coverage.
3. The Summary Judgment Rulings
A month later, in May 2009, AMICO filed this action, seeking a declaration that it has no duty to indemnify or to defend Thomson with respect to any of these claims of environmental pollution. XL, Continental, as well as other insurers, became parties to this action by way of cross-complaints asserted by Thomson and AMICO.
In July 2009, the trial court denied Thomson's motion to stay or dismiss this action on grounds of forum non conveniens or comity, based on the existence of an earlier-filed lawsuit pending in Indiana involving the same (and other) parties and issues. In this appeal the parties have not discussed the potential impact, if any, of the Indiana lawsuit on this case (or vice versa), and they have raised no issue in this appeal concerning the Indiana proceeding.
In September and October, 2009, XL and AMICO, joined by Continental, moved for summary judgment or summary adjudication on various grounds, including that (1) there has been no "suit" for "damages," as is required to trigger coverage under the policies, because the environmental claims against Thomson were not asserted in judicial actions and had not resulted in a money judgment; and (2) certain of the policies' exclusions of coverage for pollution damages also precluded coverage.
The trial court granted summary judgment in favor of the insurers by written order on April 27, 2010. Judgments in favor of the appealing insurers were entered May 24, 2010. On July 23, 2010, Thomson timely filed this appeal.
Discussion
The summary judgment rests on the trial court's determination that under California law the policies must be interpreted to provide that the claims arising from environmental pollution and orders requiring payment of expenses for environmental remediation at Technicolor's sites in California and the United Kingdom do not come within coverage. To reach that conclusion, the court first determined that California's choice-of-law rules must be applied to determine what state's laws govern the policies' interpretation; then it held that those rules require that issues of contract interpretation— in this case, insurance policy interpretation—must be determined according to California law.
When interpreted according to California law, the trial court ruled, the insurers' policies provide Thomson with no potential for coverage for the pollution claims being asserted against it in California and the United Kingdom. Coverage under the policies is triggered by a "suit" for "damages"; but California law interprets that language to apply only when claims have been asserted against the insured in a judicial action, and when money damages have been awarded in such an action. (Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 960, and Foster-Gardner, Inc. v. Nat'l Union Fire Ins. Co. (1998) 18 Cal.4th 857, 878 (hereafter Foster-Gardner).) Adhering to these authorities, the trial court held that the administrative proceedings seeking payment for environmental remediation in California and the United Kingdom do not constitute suits for damages within the policies' meaning.
Having determined that the claims asserted against Thomson give rise to no potential for coverage, the trial court granted summary judgment in the insurers' favor. It also ruled, without regard to its choice-of-law determination, that the pollution-exclusion provisions in a number of the policies would in any event preclude coverage under those policies.
Thomson challenges these rulings, contending that California's choice-of-law rules require that the laws of the states in which the policies were issued, rather than the laws of California, should govern issues of policy interpretation; and the laws of those other states would interpret the policies to provide coverage for the claims. Moreover, Thomson contends, even if California law is applied, this court should reject the mistaken policy interpretations that preclude coverage for the claims.
We conclude that the trial court correctly identified the applicable choice-of-law rules for policy interpretation, set forth in Civil Code section 1646, which require that the policies be interpreted according to the laws of the place at which the parties intended the insurer's coverage obligations to be performed, if such an intention can be determined. Applying that law, the trial court also correctly concluded that the parties intended the insurers' coverage obligations to be performed in California, and that when interpreted according to California law the policies provide no coverage for the claims asserted against Thomson. Because we affirm the judgment on these grounds, we do not examine the alternative grounds on which the trial court found that coverage under some of the policies would in any event be precluded.
Standards of Review
We independently review orders granting summary judgment. (Buss v. Superior Court (Transamerica Ins. Co.) (1997) 16 Cal.4th 35, 60.) On appeal from a summary judgment, we resolve all doubts against the motion and we view it in the light most favorable to the party opposing it. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717; Frontier Oil Corp. v. RLI Ins. Co. (2007) 153 Cal.App.4th 1436, 1447 (Frontier Oil).) But "[i]f a party moving for summary judgment . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)
A. The Trial Court Correctly Determined That The Claims Asserted Against
Thomson Are Not Within Coverage Under The Insurers' Policies.
1. The insured's right to coverage in this case rests on choice-of-law determinations.
The trial court found, and the parties do not contest, that the policies in this case require that coverage must be triggered by a "suit" for "damages." It is also undisputed that the California Supreme Court has held that claims arising from environmental pollution asserted against insureds in non-judicial administrative proceedings—such as those asserted against Thomson in California and the United Kingdom—do not constitute "suits" within the meaning of the language in these policies, and that expenses assessed for remediation of environmental damage do not constitute "damages" that would trigger coverage under the policies. (Certain Underwriters at Lloyd's of London v. Superior Court, supra, 24 Cal.4th at p. 960; Foster-Gardner, supra, 18 Cal.4th at p. 878.)
Nor do the parties dispute that under the laws of some other jurisdictions, including those of Indiana, environmental cleanup orders resulting from administrative proceedings may be interpreted to constitute "damages" incurred in a "suit" within the meaning of the policy language involved here, and thus may be interpreted to trigger the insurer's obligations to defend the insured and to indemnify it for the cleanup and remediation expenses it incurs. (E.g., Hartford Acc. & Indem. Co. v. Dana Corp. (Ind. App. 1997) 690 N.E.2d 285, 295-298 [coercive and adversarial administrative proceedings are "suits" triggering duty to defend; government-mandated environmental cleanup and response costs are within policy definition of "damages" that insurer must pay].)
In other words, Thomson and the insurers agree that the policies in this case provide no coverage if their policies' coverage language is interpreted under California law, but may provide extensive coverage if that language were interpreted under the laws of Indiana and perhaps many other jurisdictions.
The parties offer no exposition of the laws that would apply in New York, the headquarters of MacAndrews & Forbes Holdings, Inc., the AMICO policies' purchaser, or in the United Kingdom, one of the cleanup sites.
Thomson's central contention therefore is that the trial court erred by interpreting the policies' coverage provisions under California law, rather than under the laws of Indiana or some other state whose laws would interpret the policies to provide coverage. In this respect, this case resembles Frontier Oil Corp. v. RLI Ins. Co., supra, 153 Cal.App.4th 1436, in which the central dispute turned on whether the subject policies provided indemnity coverage and whether a duty to defend had arisen. In this case, just as in Frontier Oil, "[e]ach of these questions presents a choice-of-law issue as to whether the law of California or another state governs," requiring the threshold identification and application of the appropriate choice-of-law rule. (Id. at p. 1448.)
In Frontier Oil, the Court of Appeal held that the Texas-based insured was potentially covered under liability insurance it had purchased in Texas from a Texas insurer, for claims of injury asserted in a California court, resulting from environmental pollution at a California site. (Frontier Oil, supra, 153 Cal.App.4th at p. 1448.)
2. Civil Code section 1646 governs choice of law for issues of contract interpretation.
In interpreting contractual language, the touchstone is the parties' mutual intention "as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code, § 1636.) If the parties' intentions cannot be discerned from the contract language, the court must turn to the rules of interpretation set forth in the Code. (Civ. Code, § 1637.) One such rule of interpretation is set forth in Civil Code section 1646, which provides that "[a] contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made." (Civ. Code, § 1646.)
All further statutory references are to the Civil Code, unless otherwise specified.
The Frontier Oil case held that the rule set forth in section 1646 deals not just with word usage, but that it governs choice of law with respect to issues of contract interpretation, including the interpretation of insurance policy provisions. (Frontier Oil, supra, 153 Cal.App.4th at p. 1449.) Under circumstances similar to those presented here, it held that "notwithstanding the application of the governmental interest analysis to other choice-of-law issues, Civil Code section 1646 is the choice-of-law rule that determines the law governing the interpretation of a contract." (Frontier Oil, supra, 153 Cal.App.4th at pp. 1442-1443.) Under Frontier Oil, "the choice-of-law rule in Civil Code section 1646 determines the law governing the interpretation of a contract, notwithstanding the application of the governmental interest analysis to other choice-of-law issues." (Id. at p. 1459.) In the absence of extrinsic evidence affected by credibility determinations, questions of contract interpretation are determined by the court as a matter of law. (Id. at pp. 1450-1451.)
Frontier Oil held that Section 1646 "give[s] effect to the parties' presumed intention that the law of the place a contract is to be performed should govern its interpretation," if the intended place of the contract's performance can be determined. (Frontier Oil, supra, 153 Cal.App.4th at p. 1450.) Even if the intended place of the contract's performance is not specified in the contract, if the parties' intentions with respect to that location "can be gleaned from the nature of the contract and its surrounding circumstances," the law of that location should be applied to interpret the contract. (Ibid.)
Relying on Frontier Oil, Thomson takes the position that the rules of interpretation set forth in section 1646, not those used in a governmental interest analysis, are those that govern choice of law for policy interpretation in this case. (XL concurs that the governing law is that stated in section 1646, and AMICO does not challenge that conclusion, although both insurers go on to argue that the result would be the same under a governmental interest analysis.) Because the record contains no indication of an intention by the parties that the policies would be performed in California, Thomson goes on to argue, the trial court had no basis on which to apply California law to interpret the coverage provided by the policies in this case.
3. California law governs the interpretation of coverage under the Continental policies.
Continental is incorporated and headquartered in Illinois. Technicolor, Inc. purchased $100,000 of potential liability coverage from Continental for each of two years, issued through a Los Angeles insurance agent at Technicolor's Hollywood, California address, for its operations and those of other named insureds in various locations, including California, New York, Washington, Arizona, and Colorado. The trial court held that these facts constitute "surrounding circumstances" that, under Frontier Oil, are sufficient to indicate the parties' intentions that California would be the location for the policies' performance.
Thomson's contention that these facts do not indicate any such intention cannot be sustained. The factual basis for the finding of the parties' intended location of performance in this case is even more compelling than those affirmed in Frontier Oil, where the insured entity whose operations were being insured was headquartered in Texas, not California. (Frontier Oil, supra, 153 Cal.App.4th at p. 1448.)
But even if Thomson's challenge to the inference as to the parties' intentions were to prevail here, it would provide no basis for the judgment's reversal. That is because under the facts relating to the Continental policies, the choice of California law as the law under which the policy must be interpreted would remain the same even without the trial court's determination that the parties intended the policies to be performed in California. Where the location intended for performance cannot be determined, the choice-of-law rules set forth in section 1646 would require the court to look to the law of the place of contracting; and for the Continental policies, that unquestionably was California. (§ 1646.) In either case, therefore, the coverage provisions of the Continental policies would be interpreted under California law, as the judgment reflects.
4. California law governs interpretation of the policies with respect to claims for coverage for risks arising in California.
AMICO is incorporated and headquartered in Illinois. Its policies were purchased by MacAndrews & Forbes Holdings, Inc. at its headquarters in New York, identifying as the named insured not just the purchasing entity, but also "any subsidiary at any point further in a continuous line of corporate succession, and their financially controlled or actively managed organizations or undertakings . . . ." The policies provide potential liability coverage for "all locations of the named insured" for each year from 1986 through 1990. None of the AMICO policies identify California as a place of contracting or performance.
Endorsements applicable to a portion of the coverage period provide coverage for two additional sites, located in Michigan, for named-insured Technicolor Video Cassette of Michigan, Inc.
XL is a Delaware corporation with headquarters in Connecticut. The XL policies were purchased by Thomson, Inc. in Indiana, providing potential liability coverage for Thomson, Inc. and affiliated companies over a period of six years from 2000 through 2005. None of the XL policies identify California as a place of contracting or performance (although some of the named insureds have names suggesting locations in California and elsewhere).
The XL policies' named insureds (for at least some policy years) include, for example, Atlinks Communication Canada, Technicolor, USA, Technicolor Film—New York, Technicolor Film—No. Hollywood, Technicolor Video Services of Michigan, Inc., Thomson Consumer Electronics (Bermuda), Ltd., and Thomson Consumer Electronics Canada, Inc.
Thomson contends that the facts relating to the AMICO and XL policies do not indicate any intention that the policies would be performed in California. It therefore argues that Civil Code section 1646 requires use of the laws of some other state (such as Indiana) to interpret the policies' coverage, under which the policies would be interpreted to provide coverage for the claims asserted against Thomson.
According to Frontier Oil, in order to determine the applicable choice of law under section 1646, the parties' intentions with respect to the place of a contract's performance need not be explicit, but "can be gleaned from the nature of the parties' agreement and its "surrounding circumstances." (Frontier Oil, supra, 153 Cal.App.4th at p. 1450.) And according to Frontier Oil, insurance contracts in particular are by their very nature presumed to have been intended to be performed at the location of the risks they insure, and where claims arising from those risks "typically" are asserted. (Id. at p. 1461.) According to AMICO and XL, here as in Frontier Oil, the parties therefore must be presumed to have intended that their policies would be performed at the locations of the risks they were purchased to cover, and at the sites of the claims for which coverage is claimed. In this case, they argue, those sites are predominantly in California, as the trial court ruled.
The presumption articulated in Frontier Oil, that "the intended place of performance of a liability insurance policy is the place of the insured risk," has some support in logic. (Frontier Oil, supra, 53 Cal.App.4th at p. 1461; see Shippers Dev. Co. v. General Ins. Co. (1969) 274 Cal.App.2d 661, 674 [policy language will be interpreted according to law of place of performance]; Blair v. New York Life Ins. Co. (1940) 40 Cal.App.2d 494, 499 [law of place of performance governs interpretation of disability insurance policy purchased in Washington but breached by refusal to pay insured in California]; see also Estate of Grace (1948) 88 Cal.App.2d 956, 962-963 [adoption contract is presumed to be intended to be performed and enforceable wherever parents might take the child].) This presumption seems to reflect common experience, at least where no contrary intention is indicated, for it tends to provide the parties with a measure of predictability that often would be absent under other choice-of-law rules, such as if the governing law were fixed either as the sometimes-uncertain location where the insurance policy "is made" (§ 1646), or according to the vagaries of a governmental interest analysis.
Under a governmental interest choice-of-law analysis, it is possible that neither Indiana nor any other state of a non-California insured's domicile would be found to have any substantial interest in applying their rules of policy interpretation to require their domestic insurers to provide coverage for pollution remediation ordered by a California agency against a California company, in California. And California, too, would seem to have little interest in applying its rules of policy interpretation to protect non-California insurers from being called upon to cover costs of remediation for pollution damages incurred by a California company insured in California—costs that would be within coverage under the laws of the insurers' home states. Nevertheless, even a governmental interest analysis may be influenced by the location of the insured risk. (See Stonewall Surplus Lines Ins. Co. v. Johnson Controls, Inc. (1993) 14 Cal.App.4th 637, 646-647 [location of insured risk in California provides California with greater interest in applying its laws].)
Yet the presumption is also flexible enough to yield in the face of contrary indications of the parties' intentions. As the court noted in Frontier Oil, California courts ordinarily will honor the parties' express choice of law, "unless (1) the chosen state has no substantial relationship to the parties or their transaction, and there is no other reasonable basis for the parties' choice, or (2) the chosen state's law is contrary to a fundamental policy of the state whose law otherwise would apply, and the latter state has a materially greater interest in the matter than does the chosen state." (Frontier Oil, supra, 153 Cal.App.4th at p. 1451, fn. 7; Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 464-466 & fns. 5 & 6.)
While the policies' purchase of coverage for operations in California suggests an intention that the insurers would be called upon to perform their coverage obligations in California, it does not suggest that California was intended to be the policies' exclusive place of location for their performance. Further, section 1646 requires no such singular intention. (See Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 514 [same policy language may be interpreted differently to coverage sought in different jurisdictions].) On this basis we affirm the trial court's determination that there are in this case, as there were in Frontier Oil, sufficient indications that the parties intended that with respect to the claims of pollution arising at the sites in Los Angeles and North Hollywood, the policies would be performed in California—the site of the insured risks and where the insured claims arose. That was among the locations for which the coverage was purchased, and no contrary intention is indicated.
5. California law also governs interpretation of the policies with respect to coverage for claims arising in the United Kingdom.
The trial court found that "[e]ven with respect to the site in Middlesex, England, the allegation that Technicolor is a California insured can be seen as a 'surrounding circumstance' which suggests that the parties anticipated California to be the intended place of performance." Thomson's contention that the record does not sustain that conclusion seems well taken, at least with respect to many of the policies. For example, two of the XL policies, and all of the AMICO policies, predate Thomson's 2001 acquisition of Technicolor, Inc.-a fact that would seem to undermine any inference that the parties intended when the policies were purchased that the insurers' obligations would be performed at sites of Technicolor's operations at all (much less in California). There is no indication of the nature or location of the operations for which either the XL or AMICO policies were purchased. And while entities apparently affiliated with the Technicolor name were named insureds on some of the policies, the record does not establish the relationships between the various entities that might have been affiliated with Technicolor, Inc., nor the periods of any such affiliations. Nor does the record reflect where the policies were "made" (as provided in section 1646) with any certainty. The XL policies were issued by Winterthur, whose domicile is not reflected in the record, to Thomson, whose operations were not identified; the AMICO policies were issued by an Illinois-domiciled insurer to MacAndrews & Forbes Holdings, Inc., headquartered in New York, neither of which location has any apparent connection to operations or risks for which the policies were purchased.
The record contains undisputed evidence that the XL policies for the 2000, and 2002 through 2005 policy years were issued for various named insureds, none of whom included Technicolor, Inc.; but that Technicolor USA was added as a named insured on one 2001 XL policy, and Technicolor, Inc. was a named insured on a 2005 policy.
With respect to the policies purchased outside of California by entities other than Technicolor, Inc. or its affiliates, for the coverage of operations outside of California, resulting in claims asserted outside of California, the record therefore fails to affirmatively establish that the parties intended that the insurers' coverage obligations would be performed in California. Nor have the parties demonstrated that the record is sufficient to affirmatively establish any other appropriate choice of law for the policies' interpretation, either under section 1646's alternative test, the law and usage of the place where the contract "is made," or under any other test, including a governmental-interest analysis.
Under these circumstances, we must affirm the trial court's application of California law to the contract interpretation issue. (See Hurtado v. Superior Court (1974) 11 Cal.3d 574, 581 [California courts will resolve issues by applying California rules of decision "unless a party litigant timely invokes the law of a foreign state" by demonstrating its applicability under California's choice-of-law rules]; Washington Mutual Bank, F.A. v. Superior Court (Briseno) (2001) 24 Cal.4th 906, 919 [California forum will apply California law unless litigant affirmatively demonstrates applicability of foreign law].) Although these cases do not themselves involve issues of contract interpretation, as to which the rules set forth in section 1646 rather than the rules of governmental interest analysis govern choice of law, the principal is no different: A party seeking to have a California court determine an issue by reference to the law of some other forum must affirmatively establish that California choice-of-law rules require that result. Here, Thomson has failed to carry that burden.
B. Under California Law, The Claims Asserted Against Thomson Do Not
Constitute Suits For Damages Within Coverage Under The Policies.
Thomson asks that, even if California law must be applied to govern the policies' interpretation, we should "apply the wisdom of the dissenting opinions" in Certain Underwriters at Lloyd's of London v. Superior Court, supra, 24 Cal.4th at page 960, and Foster-Gardner, supra, 18 Cal.4th at page 878, to find that the policy language requiring a "suit" for "damages" to trigger coverage under the policies in this case is at least ambiguous, and therefore should not be interpreted to preclude coverage for the claims at issue here. We do not reach the merits of Thomson's extensive discussion of the public policies reflected in the majority and dissenting opinions in those cases; we are bound by their holdings, without regard to any merit that might be found in their dissents. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [decisions of Supreme Court "are binding upon and must be followed by all the state courts of California"].)
In Foster-Gardner, supra, 18 Cal.4th 857, the California Supreme Court held that an insurer's duty to defend the insured in a "suit seeking damages" was limited to claims asserted in a civil action in a court of law, specifically holding that the duty to provide coverage did not extend to a proceeding conducted before an administrative agency pursuant to an environmental statute. (Id. at pp. 878-888.) In Certain Underwriters at Lloyd's of London v. Superior Court, supra, 24 Cal.4th 945, that court held that the insurer's duty to indemnify the insured for "'all sums that the insured becomes legally obligated to pay as damages'" is limited to money ordered by a court, and specifically, that the duty does not extend to any expenses required by an administrative agency pursuant to an environmental statute. (Id. at pp. 960-964.)
Because these decisions control the interpretation of the virtually identical policy language involved here, the policies must be interpreted to provide no coverage for the claims involved in this case.
The result is not changed by the fact that the definition of "suit" in the XL policies and one of the AMICO policies encompasses arbitration proceedings as well as suits in courts of law. No arbitration proceedings are involved here; thus even if these policy provisions created the possibility of an ambiguity, it could not affect the policies' coverage in this case. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 916, fn. 7 ["language in a contract must be construed . . . in the circumstances of that case, and cannot be found to be ambiguous in the abstract"].)
Disposition
Lacking any basis on which to set aside the judgment, the judgment is affirmed. Respondents to recover their costs.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.