LIBERTY SURPLUS INSURANCE v. LEDESMA AND MEYER CONSTRUCTIONAmicus Curiae Brief of California Catholic Conference and Association of Christian Schools InternationalCal.May 16, 2017-. §236765 | SUPREME COURT FILED MAY16 2017 Jorge Navarrete Clerk SUPREME COURT OFTHE STATEOF CALIFORNIA DePuty LIBERTY SURPLUS INSURANCE CORPORATION, et al. Plaintiff andRespondents, | vs. LEDESMA & MEYER CONSTRUCTION COMPANY, INC., et al. Defendants andAppellants. U:S. Court ofAppeal, NinthAppellate DistrictNo. 14-56120; US.District Court, Central District ofCalifornia No. 2:12-cv-00900, “Honorable R. Gary Klausner,»Presiding APPLICATIONFORLEAVE TOFILE:AMICICURIAEBRIEF AND AMICI CURIAE BRIEF OF CALIFORNIA CATHOLIC . CONFERENCE AND ASSOCIATION OF CHRISTIANSCHOOLS INTERNATIONAL WEINSTEIN &NUMBERS, LLP. - *Barron L. Weinstein #067972 bweinstein@mwncov.com _ Charles H. Numbers #124651 cnumbers@mwncov.com Shanti Eagle #267704 ~ seagle@mwncov.com _ - 115 Ward Street. Larkspur, California 94939 Telephone: (415) 927-6920 | Facsimile: (415) 927-6929 - Attorneys for Amici Curiae | ' CALIFORNIA CATHOLIC CONFERENCE AND ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL S$236765 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA LIBERTY SURPLUS INSURANCE CORPORATION,etal. Plaintiffs andRespondents, VS. LEDESMA & MEYER CONSTRUCTION COMPANY,INC.,et al. Defendants andAppellants. U.S. Court ofAppeal, Ninth Appellate District No. 14-56120; USS. District Court, Central District of California No. 2:12-cv-00900, Honorable R. Gary Klausner, Presiding APPLICATION FOR LEAVE TO FILEAMICICURIAEBRIEF AND AMICI CURIAE BRIEF OF CALIFORNIA CATHOLIC CONFERENCE AND ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL WEINSTEIN & NUMBERS, LLP *Barron L. Weinstein #067972 bweinstein@mwncov.com Charles H. Numbers #124651 cnumbers@mwncov.com Shanti Eagle #267704 - seagle@mwncov.com _ 115 Ward Street Larkspur, California 94939 Telephone: (415) 927-6920 Facsimile: (415) 927-6929 Attorneys for Amici Curiae CALIFORNIA CATHOLIC CONFERENCE AND ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL TABLE OF CONTENTS TABLE OF AUTHORITIESou...etecscsesececsessesesesesaeesssseseeeeseecnsesseaes 3 _ APPLICATION FOR LEAVETO FILE BRIEF OF AMICI CURIAE CALIFORNIA CATHOLIC CONFERENCE AND ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL IN SUPPORT OF DEFENDANTS-APPELLANTS............ceeeeseesseeneessecuseecseesseeeseeseseeateseaeswee 5 BRIEF OF AMICUS CURIAE CALIFORNIA CATHOLIC CONFERENCE AND ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL IN SUPPORT OF DEFENDANTS-APPELLANTS... 9 L. INTRODUCTION ceecccccccccccccccseccesecseeecesseeesteeeeseeetetteeebebeeeQ II. ARGUMENT..............ceteeeseseecseeeccecseacseseesasesessscnsacseaerassseeeeeasesaeaaeats 10 A. Negligent Hiring, Supervision, or Retention Is Not Deliberate or Intentional Conduct andCan Be an Accident ...........cccccceesssesssseseeeeeeees 10 B. Where the Law Holds a Party Liable in Tort For Having Caused an Injury, the Causation Is Not “Too Attenuated” To Come within Liability COVETAZE 00... eceeeeseeseeeeceessceeseeseeseasenecessensesesecssceceseeseceesaeessesessaseeeessees 21 C. Under Partridge and Garvey, Liberty’s Causation Analysis Applies" Only To First Party Property Insurance, Not To Liability Insurance...... 23 D. Policy Considerations and Ramifications ..........cccccceeseeseseeseeseeeees 26 TET. CONCLUSION0.eeeceesecseeeesenesseesessssesseseesseseeessussusssenneas 28 CERTIFICATE OF WORD COUNT1.0... .cccceccccecessesssssssesecssessesecsecessssusnees 30 TABLEOF AUTHORITIES Cases — Am. Empire Surplus Lines Ins. Co. v. Bay Area Cab Lease,Inc., 756 F. Supp. 1287 (N.D. Cal. 1991) vecscsssscsssssessessessssssesstestevessstnensen passim Brownell v. Los Angeles Unified Sch. Dist., 4 Cal. App. 4th 787 (1992) . 27 Century Transit Sys., Inc. v. Am. Empire Surplus Lines Ins. Co., 756 F. Supp. 1287 (N.D. Cal. 1991) sassssssssssssssstessstsrssnststssessetesseessete 12 Chatton v. National Union Fire Ins. Co., 10 Cal. App. 4th 846 (1992)...... 18 - Commercial Union Ins. Co. v. Sup. Ct., 196 Cal. App. 3d 1205 (1987)... 11 Delgadov. Interins. Exch. of Auto. Club of S. Cal., 47 Cal. 4th 302 (2009) sessesseseseseseaiessuassssussasecassesaeassesesueesscsssesseeseeseaseas seseesesesesenesesseeseseeceeseees PASSIM Doe 1 v. City of Murrieta, 102 Cal. App. 4th 899 (2002).veeeesseeeesaneeeneeetaeees 28 Erie Ins. Co. v. Am. Painting Co., 678 N.E.2d 844 (Ind. Ct. App. 1997) .. 20 | Farmer ex rel. Hansen v. Allstate Ins.Co., 311 F. Supp. 2d 884 (C.D.Cal. 2004) oeececccccsecsecssessevsecsuetecsuccsuscssvssecsucarssucssvessucssvessavsstssutsasesesuesensenenseseens 14 Foremost Ins. Co. v. Eanes, 134 Cal. App. 3d 566 (1982)..........seeeeeee 14, 15 Garveyv. State Farm Fire & Cas. Co., 48 Cal. 3d 395(1989) eteeeteeeees passim Great Western Drywall, Inc.v.Interstate Fire & Cas. Co. 161 Cal. App.4th 1033 (2008)...seeeseeeteeeeeevaeeseseeeneceeceeeseens veecesaeeeeeneeeeeeeetenenenenesseeesens 12 Hogan v. Midland Nat’! Ins. Co., 3 Cal. 3d 553 (1970)............. 8, 10, 22, 23 Hortica-Florists’ Mut. Ins. Co. v. Pittman Nursery Corp., No. 07-CV-1119, 2010 WL 749368 (W.D.Ark. Mar. 2, 2010)... eeeseeeeeseteeeeettessesseeee 19 Hoyem v. Manhattan Beach City Sch. Dist., 22 Cal. 3d 508 (1978) seseeseeee 27 Keating v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 754 F. Supp. 1431 (C.D. Cal. 1990)... cc cccccccsssscecescssseeescceeseeaessssedecsseseesesesaeeseeesseceasesses 17, 18 Maplesv. Aetna Cas. & Sur. Co., 83 Cal. App. 3d 641 (1978)... seteneees 14, 15 Merced Mutual Insurance Co. v. Mendez, 213 Cal. App. 3d 41 (1989)..... 18 Minkler v. Safeco Ins. Co. ofAm., 49 Cal. 4th 315 (2010)... 8, 11 Nat'l Union Fire Ins. Co. v. Lynette C., 228 Cal. App. 3d 1073 (Cal. Ct. App. 1991)..:........aeeeeaceeseeaceceaseaeaeessesseseeeeeasscseeseasseesssatseseeaseseaeenses vaceeseee 13 Palmer v. Truck Ins. Exch. 21 Cal. 4th 1109 (1999)oecce cess eee 12 Safeco Ins. Co. ofAm. v. White, 122 Ohio St. 3d 562 (2009)........0000.. 20 Safeco Ins. Co. v. Thomas, No. 13-CV-0170-AJB (MDD), 2013 WL 12123852 (S.D. Cal. Nov. 26, 2013)...ceeceeeseenens . sasenseeseeeeceens wee 12 St. Paul Fire & MarineIns. Co. v. Sup. Ct., 161 Cal. App. 3d 1199 (1984) sececersecseseeacenseeseeesssossesannentantanstnsssnasssnsseasstannsnsansuasssasessenasatbsensese 11. State Farm & Cas. Co. v. Von Der Lieth, 54 Cal. 3d 1123 (1991) eeeseneeees 25 State Farm Mut. Auto Ins. Co. v. Longden, 197 Cal. App. 3d 226 (1987)..... bene e eee cece ee ne ee eee seat tees ence seaeeaee saat entneeeesiengensvceeevevevesee 14, 15 State Farm v. Partridge, 10 Cal. 3d 94 (1973) .oececccscccssesssceseserteeeesees passim State v. Allstate Ins. Co., 45 Cal. 4th 1008 (2009)oo.eeeceeseceteetseeees 24 U.S. Fid. & Guar. v. Toward, 734 F. Supp. 465 (S.D. Fla. 1990)..........wee 19 Underwriters Ins. Co. v. Purdie, 145 Cal. App. 3d 57 (Cal. Ct. App. 1983) sesacesesacacsesaesceneueeacessescersecseeseseeseesesaecsucecesessessedecesseaesseseseseaeesaeeesesatese 12, 16 Westfield Ins. Co. v. Tech Dry,Inc., 336 F.3d 503 (6th Cir. 2003) veeeeseenes 19 Westfield Ins. Co. v. TWT,Inc., 723 F. Supp. 492 (N.D. Cal. 1989)....... 17 Z.V. v. Cty. of Riverside, 238 Cal. App. 4th 889 (2015)... eeeeeeeseeeseseeeees 28 Statutes Civ. Code § LOAD scccccssscssssssessessssosssssssenesstsssstsesniesseesebecceeseseesseeseees 12 Ins. Code § 533 weeeeeevaveseeeesseseeseeseseeeesssnsseseeeseecseaeseneceeneesenenesscseesaes 26 S236765 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA LIBERTY SURPLUS INSURANCE CORPORATION,etal. Plaintiffs andRespondents, Vs. LEDESMA & MEYER CONSTRUCTION COMPANY,INC., et al. Defendants andAppellants. APPLICATION FOR LEAVETO FILE BRIEF OF AMICI CURIAE CALIFORNIA CATHOLIC CONFERENCE AND ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL IN SUPPORT OF DEFENDANTS-APPELLANTS Amici California Catholic Conference and Association of Christian Schools International pursuant to California Rules of Court Rule 8.520(f), respectfully request leave to file the attached amicuscuriaebrief in support of Defendants-Appellants Ledesma and Meyer Construction Company, Inc., Joseph Ledesma and Chris Meyer (“L&M”) on the issuecertified by the Ninth Circuit Court of Appeals to this Court. | The California Catholic Conference (“Conference”) is the public policy arm of the Roman Catholic Church in California. The Conference’s mission is to advocate for the Catholic Church’s public policy interests and to facilitate commonpastoral efforts in the Catholic community. The Conference speakson behalf of California’s two Catholic archdioceses and ten dioceses, which include the system of private Catholic education | operated across the entire State of California. In California, the Catholic education system is comprised of more than 500 elementary and 100 secondary schools that educate approximately 140,000 elementary students, and 68,000 secondary students. Most ofthese schools are covered under generalliability insurancepolicies. The Association of Christian Schools International (“ACSI”) is the largest Protestant educational organization in the world, representing nearly 24,000 memberschools in 100 countries, with 3,000 member schools in the United States and more than 5.5 million students worldwide. In California ACSIrepresents 16 colleges and universities serving 23,500 students, 300 K-12 private schools serving 86,500 students, and 79 preschool programs serving 6,700 students. Many ofACSI’s California schools are small and independently financed. Others are ministries of churches in which the insurance policies ofboth the church andschool are combined. Additionally, ACSIitself is incorporated as a nonprofit corporation under the lawsofthe state of California. California’s Catholic dioceses and private schools are vulnerable to lawsuits for injuries to children and adults caused by third parties negligently hired and/or supervised by those dioceses and schools. Over | the years (and particularly during the past 20 years or so), there have been thousands ofcases in California involving claims of childhood sexual abuse against various religious and secular entities, including dioceses and religious orders, schools, and scouting organizations. Virtually every category of organization that employs adults to interact with children is vulnerable to claims of inappropriate conduct and/or injury to children. In fact, all businesses are vulnerable to claims that an employee intentionally | injured another person despite the business’ best efforts to properly | supervise the employee. In mostofthese cases, the perpetrator is judgmentproofand the injured party sues the entity that hired the perpetrator, claiming negligent hiring, supervision, and retention of the employee-perpetrator. Typically, | insurance carriers defend and indemnify these claims, unless there is a sexual abuse exclusionor other applicable exclusion. In California alone, insureds and insurance carriers have partnered to raise hundreds of millions of dollars to compensate children and adults who have suffered abuse by employees or agents of the insuredentities. Amici represent the very types of entities vulnerable to these claims, and these entities purchase general liability insurance to protect themselves against such claims. Even entities with insurance have been forced into bankruptcy by such claims. Without any insurance to respond, however, manyofthese entities would be exposedto financial ruin if a such a claim were madeand, more importantly, the victims of such claims would have no chance of being compensated by schools andreligious organizations. For example, a small local church, mosque, or synagogue with a religious school funded by congregant dues and donations, or a small community daycare, school, or after-school care facility, simply could not exist if it had no insurance to defend and indemnify it against a possible claim that oneofits teachers, staff or volunteers, despite all reasonable efforts to screen and supervise, engaged in inappropriate conduct with oneofthe children. Such a claim would be made based onallegations that the school was negligent in hiring or supervising the staff member, and that this negligence caused the injury to the child. If the child could provethat the school was negligent, andthat its negligence wasa substantial cause of the abuse, then the child could obtain a verdict against the schoolbased on the school’s unintentional, negligent conduct. Such claims may allege abuse that occurred decades ago. This is precisely the type of risk against which a schoolseeks to protect itself by purchasing general liability insurance. And if Liberty’s proposed rule were adopted by the Court, many community. organizations, churches, mosques, and synagogueswould be unableto survive. Amici respectfully submit the attached brief to attempt to sharpen the focus on why negligenthiring, supervision, and retention has been and continues to be an “occurrence” (defined as an “accident”’) within the meaning of a generalliability insurance policy. In addressing this issue, Amici respond to the Court’s invitation in the Minkler decisionto explain why the Delgado and Hogan cases do not support the conclusion that negligent hiring or supervision that allows the commission of childhood sexual abuse cannot be an “accident.” Minkler v. SafecoIns. Co. ofAm., 49 Cal. 4th 315, 322 fn. 3 (2010). No party or counsel for a party in the pending appeal authored anypart of the proposed amici brief or made any monetary contribution intended to fundthe preparation or submission of the brief. No person or entity other than Amici or their counselin this matter have made any monetary contribution intended to fund the preparation or submission ofthe proposed amici curiaebrief. Respectfully submitted, DATED:May10, 2017 WEINSTEIN & NUMBERS, LLP ay: [2eeAlert Barron L. Weinstein Attorneysfor Amici Curiae California Catholic Conference and Association of Christian Schools © International BRIEF OF AMICUS CURIAE| CALIFORNIA CATHOLIC CONFERENCE AND . ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL IN SUPPORT OF DEFENDANTS-APPELLANTS I. INTRODUCTION Two questions appear to drive the issue of whether the underlying plaintiff's injuries were “caused by an occurrence”(defined as an | “accident’’): first, whether negligent hiring and supervision of an employee can be an accident; and second, if so, whether that accident is “too attenuated”for the injury to be “caused by an occurrence” within the meaning of a general liability policy. | Asto the first issue, where there is a duty to use due care in selecting and supervising employees, negligent breach of that duty unquestionably constitutes an accident within the meaning of a generalliability policy. California recognizestort liability of an employer for negligent supervision and hiring, and the majority of coverage cases involving such underlying claims assume,if not hold directly, that suchtort liability is covered under generalliability policies covering “occurrences” defined as “accidents.” Asto the issue of “attenuation,” the District Court and Liberty appear to assert that a negligent act that is antecedentto an intentional injury-producing act cannot be a covered “accident.” But there are numerouscases in which generalliability policies cover negligence that facilitated a criminal act against the injured party. And there is no body of case law orpolicy language that bars coverage for negligence that facilitates, but precedes, an injury by meansofa criminalact. The notion that only the most immediate cause can be the accident confusesthe rulein first party property insurance cases with the quite different rule in third party liability cases. In first party insurance cases, only the “efficient proximate cause” is the covered occurrence. But in third party cases, the “concurrent causation” doctrine applies, and coverage | exists for the claim as long as one of several concurrent causes is covered. Liberty relies heavily on Hogan and Delgadoto support this “attenuated antecedent” act argument. But Hogan and Delgado did not hold that a negligent act by the insured that precedesan intentional injury- _ producingact by a third party cannot be an accident. The factual context of those two cases demonstrates that the holdings are far more limited. In Hogan, the Court ruled that there was no accident where the immediate injury-producingact wasintentionally committed by the plaintiffs themselves. Andin Delgado, the Court ruled that an intentional act by the insured could not be turned into an accident simply becauseofthe insured’s unreasonablebeliefthat his intentional act was necessaryto protect himself. Butneither case addressedthe present situation where the insured is held liable for its own negligencein facilitating a third party’s criminal act against the injured person, and the insured’s negligence is unquestionably a substantial cause ofthe injury. | Thepolicy covers bodily injury “caused by an occurrence”(not the occurrence). As long as the insured’s negligent act is a substantial cause of the plaintiff's injury, regardless of whether a third party’s intentional act may also be a substantial cause, there is coverage under a generalliability policy. I. ARGUMENT A. Negligent Hiring, Supervision, or Retention Is Not Deliberate or Intentional Conduct and Can Be an Accident In the underlying case, Jane JS Doe alleged that L&Mwas responsible for causing her injuries based on L&M’s ownacts, its own independent negligence, not for committing the sexual assault. Nor is L&M 10 alleged to be vicariously liable for its employee’s acts.’ This is an important distinction. The perpetrator, Hecht, is not the insured, and no party is arguing that an insured should be covered undera generalliability policy for sexual assault committed by that insured. | Asthis Court has stated, however, there is no reason why negligence that contributes to abuse should not be covered by insurance. [T]he public policy against insurance for one's own intentional sexual misconduct does not bar liability coverage for others whose mere negligence contributed in some way to the acts of abuse. In such cases, there is at least no overriding policy reason why a person injured by sexual abuse should be denied compensation for the harm from insurance coverage purchasedby the negligentfacilitator. Minkler v. Safeco Ins. Co. of Am., 49 Cal. 4th 315, 327 fn. 4, opinion after certified question answered sub nom. Minkler v. Safeco Ins. Co., 399 F. App'x 230 (9th Cir. 2010). Employers can be and regularly are held liable for their negligent acts in failing to preventor facilitating intentional criminal acts by employees or agents. While someliability-producing managerial acts by an employer, such as wrongful termination, obviously may be non-accidental deliberate acts (see, e.g., St. Paul Fire & Marine Ins. Co. v. Sup. Ct., 161 Cal. App. 3d 1199 (1984); CommercialUnionIns. Co. Vv. Sup. Ct., 196 Cal. App. 3d 1205 (1987)), other acts are obviously not deliberate, such as the negligent failure to properly conduct a background checkprior to hiring, or the negligent failure to properly train or supervise an employee. Even if inadequate vetting of a candidate or inadequate supervision of an employee | This Court has noted, however, that “Neither Insurance Code section 533 norrelated policy exclusionsfor intentionally caused injury or damage precludes a California insurer from indemnifying an employer held . vicariously liable for an employee's willful acts.” Lisa M.:v. Henry Mayo Newhall Mem'l Hosp., 12 Cal. 4th 291, 305 fn. 9 (1995) (citations omitted). 11 - could somehowbeintentional, that is a factual question for thetrial court. The question here is whether negligent hiring or supervising may be an accident that causes an injury under a generalliability policy. The answer to this questionis that it clearly can.” Moreover, insurers and insureds have assumed that such conductis a covered occurrence without addressing the issue in virtually every case. ? Appellants make a related argumentthat the unintended consequencesof a deliberate act can be an accident. Amici agree with Appellants’ analysis, but do not address it here becauseit does not appear necessary to reach a decision on the question presentedin this case. > Absent exclusionary language, insurers have routinely afforded coverage to employers for these types of claims, and nowseek to eliminate this coverage retroactively. If the industry wishes to eliminate coverage for. negligent supervision, it can add clear exclusionsto its policies. In fact, there are examples ofjust that. There are exclusions for sexual abuse, assault and battery, firearms, pollution, earth movement, and many more. These exclusions demonstrate an effort by the industry to exclude certain activities or causes even if the insured’s negligenceis also a substantial cause ofthe injury (putting aside counter arguments based on, for example, severability clauses). See, e.g., Underwriters Ins. Co. v. Purdie, 145 Cal. App. 3d 57, 61 (Cal. Ct. App. 1983) (firearm exclusion); Century Transit Sys., Inc. v. Am. Empire Surplus Lines Ins. Co., 42 Cal. App. 4th 121, 124 (1996) (applying “assault and battery exclusion which provided that ‘No coverage shall apply underthis policy for any claim, demandor suit based on assault and battery and assault shall not be deemed an accident, whether or not committed by or at the direction of the insured’); Safeco Ins. Co.v. Thomas, No. 13-CV-0170-AJB (MDD), 2013 WL 12123852, at *5 (S.D. Cal. Nov. 26, 2013) (“the Molestation Exclusion is broad and unambiguous, precluding coverage to bodily injury ‘arising out of ... sexual molestation...’ no matter who committed the act. This serves to exclude an entire category of injury based on the cause,not just the person who committed the harmful act.”) If negligent supervision of an employee that engagesin intentional conduct were not a accident, a sexual abuse exclusion, or assault and battery exclusion, would be unnecessary and superfluous, whichis contrary to the rules of contract interpretation. See Civ.C. § 1641; Palmer v. Truck Ins. Exch. 21 Cal. 4th 1109, 1116 (1999); Great Western Drywall, Inc.v. Interstate Fire & Cas. Co. 161 Cal. App. 4th 1033, 1042 (2008) (“we must _avoid interpretations that would create redundancy in policy language”). 12 This Court has held that in the “context of liability insurance, an accidentis ‘an unexpected, unforeseen, or undersigned happening or consequence from either a known or unknown cause,’” and “refers to the conductofthe insured for whichliability is sought to be imposed on the insured.” Delgadov. Interins. Exch. of Auto. Club of S. Cal., 47 Cal. 4th 302, 308, 311 (2009). An insured’s negligent supervision that facilitates an intentionalact by a third party fits easily within this definition. The District Court andparties in the present case have cited only two cases that foundthat negligenthiring and supervision were not an accident. Neither of these casesis persuasive. Onecase, L.A. Checker Cab, was depublished by this Court, and therefore cannot be relied on.’ Theother, Bay Area Cab Lease, wasa federal district court case that provided no relevant analysis on the issue. Am. Empire Surplus Lines Ins. Co. v. Bay Area Cab Lease, Inc., 756 F. Supp. 1287, 1288 (N.D. Cal. 1991). Thetrial court in this case relied heavily on Bay Area Cab Lease, a district court order on summary judgment. However,the holding that negligent supervision was not an “accident” was not necessary to the decision, because a) the policy was not a generalliability policy, but was ceeinstead premises-specific, limited to “‘accidents’ occurring ‘on the premises’”; and b) the policy contained an unambiguousassault and battery exclusion which applied irrespective ofwho committed the assault. Id. at Moreover, exceptions to the exclusions would beillusory. Nat'l Union Fire _ Ins. Co. v. Lynette C., 228 Cal. App. 3d 1073, 1078 (Cal. Ct. App. 1991), reh'g denied and opinion modified (Apr. 18, 1991) (finding coverage for wife of molester because “if her interpretation is not accepted, the Exclusion (1) exception is rendered meaningless, contrary to settled principles of insurance policy interpretation.”). * Nevertheless,it should be noted that L.A. Checker Cabrelied exclusively on Delgado. For the reasons discussed below, Delgado doesnotdictate a finding of no occurrence. 13 1289, 1291. Moreover, although the order included a heading entitled “(negligenthiring/supervision is not an ‘accident’ evenif it could be said to have occurred ‘on the premises,’” the court only found that “the hiringof Woodscould not seriously be characterized as an ‘accident.’” Id. at 1290 (emphasis added). The orderdid not discuss the negligent supervision ‘claim, which involved negligent acts that were completely different from the act of hiring. While the act of hiring an employee maybeintentional,it is difficult to conceive how inadequate supervision can be an intentional act. The Bay Area Cab Leasecourt did not address the question ofhow negligent supervision could be anything but an accident. In addition, Bay Area Cab Lease’s discussion of negligenthiring relied on only three court of appeal cases, none of which involved the question ofwhether negligent supervision constituted an accident. Maples v. Aetna Cas. & Sur, Co., 83 Cal. App. 3d 641, 647-648 (1978), and State Farm Mut. Auto Ins. Co. v. Longden, 197 Cal. App. 3d 226, 233 (1987), both involved the question ofwhether an actin one policy period that caused damage in another policy period couldtrigger the first policy. The courts in those cases held that the policy in effect when the damage occurred wasthetriggered policy. Although there is language in those cases addressing when an “accident” occurred,there is no analysis of whethertheact in the first policy couldhaveconstituted an occurrence if the damagehad occurredin that samepolicy period.° Thethird case, Foremost, involved a car accident in Mexico where the car had been loaned by the insured to the driver. ForemostIns. Co.v. Eanes, 134 Cal. App. 3d 566 (1982). The policy excluded accidentsin > In Farmersv. Allstate, the district court indicated that it was “inclined”to follow Maples, but did not have to rule on the issue. Farmer ex rel. Hansen v. Allstate Ins. Co., 311 F. Supp. 2d 884, 893 (C.D. Cal. 2004), aff'd sub nom. Farmer v. Allstate Ins. Co., 171 F. App'x 111 (9th Cir. 2006). 14 Mexico, but the insured loaned the auto to the driver in the U.S. The insured argued that the loaning of the auto was an accident, but the court of appeal disagreed. The court, however, clarified its ruling by stating: While a manufacturing defect (see Oil Base, supra) or a negligent repair (see Sylla, supra) may conceivably fit within this rubric [“accident”], the intentional loaning of a vehicle to friends does not. This is especially true if there is no owner negligence involved and liability is premised on the strict liability provisions of Vehicle Code section 17150. Under such circumstances, we find it impossible to view the totally expected and totally reasonable actions of the vehicle owner as constituting an “accident” within the meaning ofthe policy. Id.at 571 (emphasis added). Had the ownerbeennegligent in loaning the car, the court suggests it may have ruled differently. In any event, the Foremost decision haslittle to do with negligent supervision. The fact that the Bay Area Cab Lease court found only these three cases to support its conclusion that negligent hiring is not an accidentis instructive. These casesall dealt with issues very different from the present case.. Maples and Longden addressed the question of whichpolicy is triggered when an act is committed during one policy period that produces injury in another. And Foremost found that an uncovered accidentin Mexico could not be converted into a covered accident merely bythe fact that the insured loanedthe car to the driver in the U.S. Thesedecisions are not useful without considering their factual contexts, none ofwhich is close to the facts of the present case. | Notably, the district court in Bay Area Cab Lease considered whetherthe concurrent causation analysisin Partridge should change the court’s conclusion. Bay Area Cab Lease, 756 F.Supp. at 1291. The court observed the Partridge case’s holding that “when independent, negligent acts concur to produce one injury, each act should be viewedseparately to 15 determineliability.” Id. at 1291 (citing State Farm v. Partridge, 10 Cal. 3d 94 (1973), discussed infra). The court found that concurrent causation did notapply because “[t]he court has interpreted the policy to extend only to liability arising out of the condition or maintenanceofthe building. Thus, although this might indeedbe a case ofjoint causes, neither of them is an insured cause.” Id. (emphasis added). | This discussion of Partridge demonstrates that the court’s interpretation of “accident” was somewhatof a red herring. In the context ofthe case beforeit, because coverage waslimited toparticular premises and there was a clear assault and battery exclusion, there was no covered accident because the incident occurred outside of the covered premises and involved an assault and battery. The opinion’s closing remarks support this conclusion. The court distinguished Underwriters Ins. Co. v. Purdie, 145 Cal. App. 3d 57 (Cal. Ct. App. 1983), a case which found that negligent hiring that led to a shooting by a store clerk was an accident, despite an exclusion for firearms. Bay Area Cab Lease, 756 F.Supp. at 1291. The Bay Area Cab Lease court distinguished Purdie not based onthe interpretation of “accident,” but based on the differences between the policy in Purdie and the policy in Bay Area Cab Lease. The only real issue that [Purdie] raises is whether the conclusion that negligent hiring is not covered is an erroneous one. The policyin [Purdie] contained essentially the same language with regard to coveragefor bodily injury and property damage as the policy in the instant case. However, the [Purdie’s] policy was abroader, liability insurance policy and the policy in this case is a concededly narrower Owner’s, Landlord’s & Tenant’s policy. Id. The court then concluded the opinion with the following instructive comment: , The issue here is not whether Cab Co. should have toanswer for its allegedly negligent hiring of potential child molesters 16 to ferry vulnerable children from place to place but rather whether it purchased the right insurance policy to protect itself from liability in the event that something like this occurred. The court findsthat it did not. — Id. When read in context, the opinion in Bay Area Cab Leaseis about the exclusions, not about the insuring clause. Had the policy been a general liability policy rather than a premises-specific policy, and had the policy not contained the assault and battery exclusion, the court implies that the insured in that case would have “purchasedthe right insurance policy,” and the negligent supervision would have been covered.Id. Other cases have found that negligent supervision can constitute an occurrence undera generalliability policy. In TWT, Inc., the district court rejected the insurer’s argument that the underlying allegations, which | included negligent supervision, could not constitute an “occurrence” under the policies because they were by definition intentional.” Westfield Ins. Co. v. TWT, Inc., 723 F. Supp. 492, 495 (N.D. Cal. 1989). The district court distinguished cases finding wrongful termination to be intentional, and foundthat the negligent supervision claims asserted were notintentional acts and “could constitute an ‘occurrence’ under the policy language. Id. at 496; accord, Fireman's Fund Ins. Co. v. Nat'l Bank forCooperatives, 849 F. Supp. 1347, 1368 (N.D. Cal. 1994) (finding negligent supervision was an occurrence, agreeing with Keating and Westfield). In State Farm Fire & Cas. Co. v. Westchester Inv. Co., 721 F. Supp. 1165, 1168 (C.D. Cal. 1989), the district court “foundthat a complaint | alleging housing discrimination triggered a duty to defend under an “accident”policy. The complaint alleged intentionalracial discrimination by the property managers. The court disagreed with the insurer that the intentional act of discrimination was the occurrence and therefore not - covered. 17 State Farm incorrectly asserts that there is no “occurrence” here that would trigger coverage. They contend that the intentional act of discrimination does not constitute an accident. However, an examination of the ... complaints reveal that there is possible liability ... under a negligent supervision of the property managers. This type of recovery does not require intent and can therefore constitute an “accident”that is entitled to coverage. Id. (citations omitted). Likewise, in Keating v. Nat'l Union FireIns. Co. of | Pittsburgh, Pa., 754 F. Supp. 1431, 1440 (C.D. Cal. 1990), rev'd on other grounds 995 F.2d 154 (9th Cir. 1993), the district court found that the potential for liability for negligent supervision in allowing negligent misrepresentations to be made was an “occurrence” and created a duty to defend. It is clear that an accident is not present when the insured performs a deliberate act. ... However, “an ‘accident’ exists when any aspect in the causal series of events leading to the injury or damages was unintended by the insured. and a matter or fortuity.” Merced Mutual makes clear that the focus is on whether the event was an accident from the perspective ofthe insured. Keating v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 754 F. Supp. 1431, 1440 (C.D. Cal. 1990) (emphasis added) (quoting Merced Mutual Insurance Co. v. Mendez, 213 Cal. App. 3d 41 (1989), rev'd on other grounds 995 F.2d 154 (9th Cir. 1993) (reversing dueto finding that unfair competition claims were not covered under advertising injury coverage provision and economic loss causing emotional distress was not covered, without _ addressing “occurrence”issue); see also Chatton v. National Union FireIns. Co., 10 Cal. App. 4th 846, 862 (1992) (distinguishing Keating because the only claims were negligent representations, and there were no claims of negligent supervision). 18 ‘Other jurisdictions that have addressed the issue have also found that negligent supervision can be an occurrence or “accident” under a general liability policy. The Sixth Circuit addressed this issue and found that negligent hiring and supervision claims are an occurrence (defined as an accident) within a generalliability policy as a matter offirst impression under Kentucky law. Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 509-10 (6th Cir. 2003). In determining that there was coverageforthe employer’s negligent hiring and retention where the employee had committed a murder, the Sixth Circuit surveyed cases from other states and found that [w]hen courts deny coverage in negligent hiring cases, they arguably transform an employer's negligent acts into intentional acts, dissolving the distinction between negligent and intentional conduct. To avoid this problem, we will “look to the actions of the insured and not the perpetrator of the intentional act in determining whether there is coverage”’.... Id.at 509-10 (citations omitted); see also U.S. Fid. & Guar. v. Toward, 734 F. Supp. 465, 468 (S.D. Fla. 1990) (finding claims of an employer's negligent hiring, retention, and supervision of a child abuser qualified as “an accident” andstating “the insurer cannot dispute that the term ‘accident’ includes direct acts of negligence such as unreasonable care in supervising and hiring the school’s employees. An accidentis an unexpected occurrence not actually foreseen by the insured.”’); Hortica- Florists’ Mut. Ins. Co. v. Pittman Nursery Corp., No. 07-CV-1 1 19, 2010 WL749368,at *4 (W.D. Ark. Mar. 2, 2010) (finding “the term ‘occurrence’ is basically defined as an accident, which includes direct acts of negligence, such as unreasonable care in supervising andhiring employees,” in cases involving employee’s intentional extortion); but see 19 Erie Ins. Co. v. Am.Painting Co., 678 N.E.2d 844, 846 (Ind. Ct. App. 1997) (negligent hiring and retention wereintentional, not accidental). The Ohio Supreme Court also squarely addressedthis issue and found that claims of negligent supervision against the parents were occurrences or accidents, where the son committed a criminalassault. [W]hen a liability insurance policy defines an “occurrence” as an “accident,” a negligent act committed by an insured that is predicated on the commission of an intentional tort by another person, eg. negligent hiring or negligent supervision, qualifies as an “occurrence.” Safeco Ins. Co. ofAm. v. White, 122 Ohio St. 3d 562, 569 (2009). The | Ohio high court also discussedthat its holding was consistent with prior cases finding that coverage for negligent hiring or supervision of child molesters was not barred intentional conduct. The court stated that torts like negligent supervision, hiring, retention, and entrustment are separate and distinct from the related intentional torts (committed by other actors) that make the negligent torts actionable. Thus, in determining whether a policy exclusion precludes coverage for that negligentact, we must examine the injuries arising from the negligent act on their ownaccord, not as part of the intentionalact. Id. at 570-71 (2009). The court reiterated its rule that “‘the intentions or expectations of the negligent insured must control the coverage determination, and not the intentions or expectations of the molester” because “a contrary decision would ‘effectively dissolve[] the distinction between intentional and negligent conduct, allowing the intentionalact to ~ devourthe negligentact for the purpose of determining coverage.””Id. at 568 (citations omitted) (quoting Doe v. Shaffer, 90 Ohio St.3d 388, 738 (2000)). These cases demonstrate the correct view, consistent with this Court’s precedents, that for the purposeofliability insurance the accident analysis must focus on the actions or omissions of the insured. 20 B. Wherethe Law Holds a Party Liable in Tort For Having Caused an Injury, the Causation Is Not “Too Attenuated” To Comewithin Liability Coverage Notall tort liability necessarily falls within the scope of a general liability insurance policy. However, where an insuredis heldliable forits part in causing an injury, the scope of the insurance coverage must focus on the cause for which the insured is being held liable—the insured’s conduct—evenifthat conduct is not the only or most immediate cause. To find that there is only one “injury causing event” of an injury under a generalliability policy, though there may be multiple legal causes and multiple liable parties, is unsupported by the language of the policy and California case law. | Liberty argues that the accidentis solely the immediate injury causing act—the intentional molestation—not“antecedent” conduct by the’ | insured. Such an analysis conflates the negligent acts of the insured andthe intentional acts ofthe third party. Instead, courts should focus on the insured’sliability producing acts, consistent with this Court’s precedents. ‘In Delgado, this Court refused to view the accident from the perspective of the injured party, ruling instead that“[u]nder California law, the word | ‘accident’ in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured.” | Delgado, 47 Cal. 4th at 311(emphasis added).°The Court found that an ° In support of its argumentthat in this case, the insured’s perspective is irrelevant, Liberty argues that the modification of the insurance form to omit the language “from the standpoint of the insured”is significant and demonstrates that the perspective of the insured is not to be taken into account. Respondent’s brief at p. 35-37. In Delgado the claimant argued that the removalofthe phrase “neither expected nor intended from the standpoint of the insured” meant that the term accident should be construed from the perspective of the injured party). Delgado, 47 Cal. 4th at 310-312. This Court rejected that argument, finding that the history of the change 21 insured’s intentional conduct could not be transformed into an accident because of the insured’s mistakenbelief that he was acting in self-defense. Asthis Court recognized in Delgado, Any given event, including an injury, is always the result of many causes.” For that reason, the law looks for purposes of causation analysis “to those causes which are so closely connected with the result and of such significance that the law is justified in imposingliability. Id. at 315 (2009) (citations omitted). Although Delgado goes on to say that “[t]o look to acts within the causal chain that are antecedent to and more remote from the assaultive conduct would render legal responsibilities too uncertain,” (id. at 315—16), that does not mean, as Liberty asserts, that conductearlier in the causal chain cannot be the focus of the accident analysis whereliability is imposed based on that “antecedent” conduct. Where an insured’s acts are a legal cause ofan injury, that is an injury-causing act for purposesof analyzing the scopeofliability coverage, irrespective of whether or not there were other, more “immediate”causes. The Delgado Court’s statement that looking at “acts within the causal chain that are antecedentto and more remote ... would render legal responsibilities too uncertain” is inextricable from the fact that the insured and the claimant were the only actors involved. Delgado, 47 Cal. 4th at 315-16. Thus, events earlier in the causal chain that changed the insured’s state ofmind were disregarded. Wherethe insured and the intentional actor are not the same,this analysis does not work. Hogan is distinguishable because the claimant deliberately made the over-width cuts for which he was seeking compensation. Hoganv. Midland Nat’| Ins. Co., 3 Cal. 3d 553 (1970). Hogan held that the lumber deliberately cut too wide was “not damagedas the result of an accident.” was an attemptto clarify a split in the courts, but did not change the meaning:that “accident” refers to “the conduct ofthe insured.”Id. at 311. 22 Id. at 558. In fact, the lumber was not damagedat all; there was no property damageand no customers rejected the lumber. The only claimed “damage” was the economic loss measuredbythe cost for additional lumber and added freight for the boards which were intentionally cut wider than necessary.Id. at 560. The lack of resulting damage explains why undercut _ lumber (whichwasaccidental) was different from intentionally overcut wood (which wasnot). | If, for example, a customer who purchased the over-cut lumber had brought a claim directly against the saw manufacturer because his house was out-of-plumb and suffered damage due the boards being too wide (assuming the manufacturerinsured could be heldliable)the result likely would have been different. The concern that liability insurance will have to step in and cover cases wherethe causeis “too attenuated”is already accounted for by the law of torts, which drawsa line between causes for which liability can be imposed and remote causes which cannot. Heightened standards of foreseeability are applied before negligent party can be held liable for the criminal acts of another. Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 240 fn. 20 (2005) (a proprietor may beheld liable for its own negligence in in selecting, training, supervising, or retaining security guards to protect patrons from criminal acts). As such, where the law finds causation sufficient to impose liability, that cause cannot be “too attenuated”for purposes ofgeneral liability coverage. C. Under Partridge and Garvey, Liberty’s Causation Analysis Applies Only To First Party Property Insurance, Not To Liability Insurance Liberty’s argument that only the “immediatecause”ofthe injury - determines whetheror not there is an “accident” ignores California’s 23 concurrent causation doctrine, and seeksto use the “efficient proximate cause”analysis that is applicable only to first party property insurance cases. In Partridge, 10 Cal. 3d 94, the insured wasdriving his car andhis _ gun discharged when he wentover a bump,striking his passenger. The insured hadfiled the gun’s trigger to makeit a “hairpin trigger.” The sensitive trigger caused the gunto fire whenthe car hit the bump. The insured’s homeownerinsurancepolicy excludedliability arising from the use ofan automobile. This Court found that the hairpin trigger was a concurrent proximate causeof the injury, so there was coverage underthe homeownerpolicy even though the more immediate injury-producingact wasdriving the automobile over the bump. Id., at 132. Applying Partridge, there is coverage under a generalliability policy for an insured’s covered negligent conduct as.long as the conduct was a legal cause ofthe injury, | even if other, uncovered events also were legal causes of the injury: the contractual scope of third party liability insurance coverage, as reflected in the policy. language, depends on the tort law source of the insured's liability. Under Partridge, then, we look to whether a covered act or event subjected the insured to liability for the . injury underthe law oftorts. ... If the insured's nonexcluded. negligence “suffices, in itself, to render him fully liable for the resulting injuries” or property damage, the insurer is obligated to indemnify the policyholder even if other, excluded causes contributed to the injury or property damage. State v. Allstate Ins. Co., 45 Cal. 4th 1008, 1031 (2009) (internal citations omitted) (quoting Partridge, 10 Cal. 3d 94). . Importantly, the “concurrent causation” doctrine in Partridge does not apply in first party property insurance cases. Garvey v. State Farm Fire & Cas. Co., 48 Cal. 3d 395(1989). Garvey held that the concurrent causation doctrine in Partridge was appropriate for third party liability 24 cases, but not for first party property cases. Forfirst party cases, the court adopted the “efficient proximate cause” test. Under the efficient proximate causetest, “when a loss is caused by a combination of a covered and - specifically excludedrisks, the loss is covered if the covered risk was the efficient proximate causeofthe loss.” State Farm & Cas. Co. v. Von Der Lieth, 54 Cal. 3d 1123, 1131 (1991). Conversely, the loss is not covered if the covered risk was only a remote cause of the loss, or the excludedrisk wasthe efficient proximate, or predominate cause. Id. The Garvey Court analyzed at length the difference between third party liability insurance andfirst party property insurance, and concluded that the “concurrent causation” doctrine appliedto liability insurance disputes, and the “efficient proximate cause” test applied to property insurance cases. Garvey, 48 Cal. 3d 395. The Court explained that property losses frequently involve morethan oneperil that might be considered legally significant. If one of the perils is covered and the otheris not, “the task becomesone of identifying the most important cause of the loss and attributing the loss to that cause.” Id. at 406. But this analysis does not applyto liability insurance: On the other hand, the right to coverage in a third-party liability insurance context draws on traditional tort concepts of fault, proximate cause and duty. This liability analysis differs substantially from the coverage analysis in the property insurance context, which drawson the relationship between perils that are either covered or excluded in the contract. In liability insurance, by insuring for personal liability, and agreeing to cover the insured for his own negligence, the insurer agrees to cover the insured for a broader spectrum ofrisks. Id. at 407. The Court quoted from Partridge in reiterating that: “Although there may be some question whethereitherofthe . two causes in the instant case can be properly characterized as the ““prime,’ ‘moving’or ‘efficient’ cause of the accident 25 we believe that coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes simply a concurrent proximate cause of the Injuries.” Id. at 405. Liberty’s proposed “immediate cause”testis really the “efficient proximate.cause”test that can only be appliedin the first party insurance context. Liberty would have the Court chooseonly the “immediate cause” to determine coverage, whereasthe policy covers the insured’s Jiability, which “drawsontraditional tort concepts offault, proximate cause and duty.” Id. at 407. Applying the correct test—concurrent causation—to this third party liability case, it is clear that L&M’s negligent supervision was _ an independent concurrent cause of Doe’s injuries, whetherit was “immediate”or not; it was “an occurrence” that caused the injuries, andis covered under L&M’sliability policy. _D. Policy Considerations and Ramifications An insured’s sexual molestation is excluded from coverage both by public policy and policy exclusions for intentional acts. See Ins. Code § 533. However, wherethe insured employeris liable only if its own separate acts or omissions, such as negligently failing to conduct a background check, or negligent supervision, are determinedto be a causeoftheinjury, no such policy precluding coverageexists. Asdiscussed above, defining accident from the viewpointofthe insured “is consistent with the purposeofliability insurance. Generally, . liability insurance is a contract between the insured and the insurance company to provide the insured, in return for the payment ofpremiums, protection againstliability for risks that are within the scope ofthe policy's coverage.” Delgado, 47 Cal. 4th at 311. Businesses and individuals 26 purchase insurance to defend and indemnify them for their acts and omissionsthat create potential liability. Making that protection dependent on the actions of third parties, which are beyondtheir control,is inconsistent with that purpose. For example, a landlord could be liable for creating a dangerous nuisance if it created an unsafe roof deck and allowedthe tenants to useit. The landlord would have coverage if someone negligently bumpedinto the claimant, or the claimanttripped andfell off the roof. If someone intentionally pushed the claimant off the roof, however, the landlord could be liable, but under Liberty’s analysis the landlord would lose coverage because the third party acted intentionally. Why should the independent acts of a third party dictate whetheror notthere is liability coverage where the landlord had no control over the third party, and is held liable irrespective of the third party’s intent? Nothingin the policy language or the definition of accident mandates such an internally inconsistent result, and such a result would be contrary to the reasonable expectations of the insured. _ Similarly, a school can be liable for failing to protect a child from foreseeable risks, including by third parties. Liberty’s proposed rule could mean that a school would have coverage if a child were run over by a negligent driver while leaving school, but not if the child was shot by a gang memberon schoolgrounds. See, e.g., Hoyem v. Manhattan Beach City Sch. Dist., 22 Cal. 3d 508, 512 (1978) (school district can be held liable for negligent supervisionwhich proximately causes student’s injuries, everi if incurred off campus, when truant student washit by a car); Brownell v. Los Angeles Unified Sch. Dist., 4 Cal. App. 4th 787, 798 (1992)(reversing awardfor negligent supervision of student shot by a gang member becauseoflack of foreseeability based on facts, but | acknowledging the potential for liability where there was history of similar 27 criminalactivity). A holding that negligent supervision is not an “occurrence”or “accident” would have wide-reaching ramifications. It would eliminate coverage and therefore compensation to victims of abuse. It would eliminate coveragefor negligentvetting, training and/or supervision of counselors, scout leaders, teachers, etc. for all mannerofprivate schools, camps, scouts, religious organizations, and governmental entitiesthat are held liable for negligent supervision of individuals who engage in’ intentional misconduct. These entities have separatetort liability because of their own negligent conductin failing to properly vet, train, or supervise employees. See, e.g., Z.V. v. Cty. of Riverside, 238 Cal. App. 4th 889, 902 (2015), review denied (Sept. 23, 2015) (county could be liable for negligent supervision if a person in a supervisorial position over the actor had prior _knowledgeofthe actor’s propensity to do the bad act); Doe 1 v. City of Murrieta, 102 Cal. App. 4th 899, 913 (2002) (police department could be liable for negligent failure to “follow explorer program rules and guidelines” in supervising officers’ interactions with minors participating in “Explorers” program). Kil. CONCLUSION A holding that there is an “occurrence” under a general liability policy whena claimant sues the employer for negligence in hiring,: retaining, or supervising an employee whointentionally injured the claimantis consistent with this Court’s precedents, the insurance industry’s historical conduct, the reasonable expectationsofthe insureds, and — California public policy. 28 Forall these reasons, Amici respectfully submit that the Court should answerthe certified question from the Ninth Circuitin the affirmative. Respectfully submitted, DATED: May10, 2017 WEINSTEIN & NUMBERS, LLP wy)Deed.LIX Barron L. Weinst€in~ Attorneysfor Amici Curiae California Catholic Conference and Association of Christian Schools International 29 CERTIFICATE OFWORD COUNT The text of this brief consists of 7,344 words as counted by Microsoft Office Word2010. Dated: May 10, 2017 __ we SeedLeI Barron L. Weinstein 30 Liberty Surplus Insurance Corporation, et al. v. Ledesma & Meyer Construction Company, Inc., etal. California Supreme Court No.: 8236765 U.S. Court of Appeals for the Ninth Circuit No.: 14-56120 US.District Court, Central District of California No.: 2:12-cv-00900RGK-SP PROOF OF SERVICE - STATEOF CALIFORNIA, COUNTY OF SAN FRANCISCO I am employedin the County of San Francisco,in the State of California. I am over the age of 18 and not a party to the within action; my business address is 1138 Howard Street, San Francisco, California 94103. ‘On May10, 2017, I served the foregoing document(s) described as: ~ APPLICATION FOR LEAVETO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF OF BARRON L. WEINSTEIN I served the foregoing document(s) on the interested parties in this action by placing atrue copy thereof enclosed in sealed envelopes addressed as follows: Patrick P. Fredette, Esq. ' Attorneys for Plaintiffs and Respondents MCCORMICK BARSTOW > Liberty Surplus Insurance Corporation SHEPPARD WAYTE & CARRUTH and Liberty Insurance Underwriters, Inc. 7647 North Fresno Street Fresno, CA 93720 Christopher M. Ryan, Esq. Attorneys for Plaintiffs and Respondents MCCORMICK BARSTOW Liberty Surplus Insurance Corporation SHEPPARD WAYTE &CARRUTH and Liberty Insurance Underwriters,Inc. 312 Wainut Street, Suite 1050 Cincinnati, OH 45202 MichaelJ. Bidart Attorneys for Defendants and Ricardo Echeverria Appellants SHERNOFF BIDART ECHEVERRIA Ledesma and MeyerConstruction 600 South Indian Hill Blvd. Company,Inc.; Joseph Ledesma; and Claremont, CA 91711 Kris Meyer Jeffrey I. Ehrlich Attorneys for Defendants and THE EHRLICH LAW FIRM Appellants: 16130 Ventura Blvd., Suite 630 Ledesma and Meyer Construction Encino, CA 91436 Company,Inc.; Joseph Ledesma; and Kris Meyer U.S. Court ofAppeals Case No.: 14-56120 for the Ninth Circuit . Clerk of Court PO Box 193939 San Francisco, CA 94119 Hon. R. Gary Klausner Case No.: 2:12-cv-00900-RGK-SP United States District Court Central District of California 350 West Ist Street, Courtroom 9B, FL 9 Los Angeles, CA 90012 _X_ By USPS:I placed the above-document(s) in sealed envelopes, with postage thereon fully prepaid, for collection and mailing at San Francisco, California, following ordinary businesspractices. I am readily familiar with the practices of First Legal Support Services for processing of correspondence,said practice being that in the ordinary course of business, correspondenceis deposited in the United States Postal Service the same day as it is placed for processing. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed this 10th day ofMay, 2017, in San Francisco, California WW.Go
