Although sixofthe justices in Walser viewed the conductatissueas an accident, one justice dissented. In his view,“Under the languageofthe insurancepolicy, it makes no difference whetherthe insured intended injury 5 In California, the scope of that exclusionis held to parallel the scope of the statutory exclusion in Insurance Code section 533, prohibiting indemnity for the insured’s willful acts. (Delgado, 47 Cal.4th-at pp. 313-314.) 21 or not—the only concernis whether the act causing the injury was accidentalor intentional.

On March 26, 2014, this Court granted summary judgment in favor of Continental. Specifically, the Court held that allowing Vesta to recover for losses allegedly sustained as a result of the theft by its owners would violate California Insurance Code § 533, which provides in relevant part that an “insurer is not liable for a loss caused by the willful act of the insured.” (ECF No. 133 [hereinafter “March 2014 Order”].)

Punitive damages are not insurable in California. In addition, California Insurance Code § 533, which provides that “an insurer is not liable for a loss caused by the willful act of the insured,” is an implied exclusionary clause statutorily read into all insurance policies. Exhibit “4” p. 5.

ion v. Hartford Accident and Indemnity Company (2003) 29 Cal4th 934ieeeeccecseeceseceseeeeseeseeeseeceareeseseeeeespassim Lakin v. Watkins Associated Industries (2008) 6 Cal.4th 644.00...cecececececceeeeceeveneseecensseesseeeesenses 12-13 Montrose Chemical Corporation v. Admiral Insurance Company (1995) 10 Cal.4th 645 .cccccccccsssssessssstessssssesssvesssssessetuessssesseeessvees 7, 12 State of California v. Continental Insurance Company (2012) 55 Cal4th 186... ceceesecscescnseeeeeeetereessseneenaeeesneeeass 7-8, 12 Waller v. Truck Insurance Exchange, Inc. (1995) 11 Cal4th Dooceeeceseeeneceeeeneeeeeneeeaceesaeeeessaeeeseeeneesnaes 10 OTHER STATE CASES Travelers Casualty and Surety Company v. United States Filter Corporation (ind. 2008) 895 N.E.2d L172... eccceccccccececeseeeeeeeceeseseeeeeeseesaseeesees 9 STATUTES California Insurance Code, Section 108.000.000.000... ceeeeeeeeeeeeee 7,11, 12, 13 Calitornia Insurance Code, Section 520 .......cccccccccecceseecstecenseeeteeeenseespassim California Insurance Code, Section 533 oo... cece cecccccccceeessseesseeceseeetneneaes 9 California Rule of Court, Rule 8.500(D).......c ccc cccccceessecsseeceeeseeseseressetenes 2 i WHY THE COURT SHOULD DECLINE REVIEW Plaintiff and Petitioner Fluor Corporation (“Fluor-2”)' petitions the Court to review the Court of Appeal’s August 30, 2012 opinion. (Fluor Corp. v. Superior Ct. (2012) 208 Cal.App.4th 1506 [“Fluor Corp.”].)

Regardless of the elements of its cause of action, the parties contractually agreed that neither would be liable to the other absent “willful misconduct.” Digital Envoy cited no statutory or common-law proscription forbidding such an agreement, and offered no evidence whatsoever to show that Google acted with “malevolence,” that it engaged in “quasi-criminal” conduct, that it consciously chose to engage in conduct it knew to be “wrongful” or that it intended to harm Digital Envoy.3 In short, (continued...) 2 California courts have long equated the standards under California Insurance Code Section 533 and California Civil Code Section 1668, explaining that both are directed to “willful” torts. See, e.g., Tomerlin v. Canadian Indem.