Court of Appeal, Third District, California.
TRUCK INSURANCE EXCHANGE, Plaintiff and Appellant,
ASSURANCE COMPANY OF AMERICA et al., Defendants and Respondents.
July 26, 2005.
Truck Insurance Exchange (Truck) appeals from the judgment entered in favor of defendants Assurance Company of America (Assurance) and Maryland Casualty Company (Maryland) after they successfully moved for summary judgment in Truck’s action for equitable contribution. Truck challenges the trial court’s determination that Truck is not entitled to contribution from defendants because they do not have a common insured under the terms of their respective insurance policies. We shall affirm the judgment.
Truck’s action for equitable contribution arises out of its settlement of several construction defect cases brought against Doug Boyer Construction, Inc. (Construction, Inc.) and Doug Boyer d/b/a Doug Boyer Construction. The consolidated actions, which are referred to collectively by the parties as the Caudillo litigation, alleged that various defects in construction had caused property damage to the Caudillo plaintiffs’ homes in the Ranchwood Estates project “from the date of construction to the present date.”
It is undisputed that Truck insured the corporation, Construction, Inc., and that defendants insured an individual, who conducted business under a fictitious business name, Doug Boyer d/b/a/ Doug Boyer Construction (hereafter referred to as Boyer or Boyer Construction). The issue on appeal is whether Truck also insured Boyer, or whether defendants also insured Construction, Inc., or whether the corporation and the individual may be considered interchangeable, such that Truck is entitled to contribution from defendants toward the money it paid to settle the claims against their common insured.
In May 1981, the California Contractors State License Board issued a general contractor’s license to Boyer, doing business as Boyer Construction. In October 1986, Boyer formed a corporation, Construction, Inc., of which he was the sole shareholder and director. Construction, Inc., was licensed as a general contractor in August 1987. In May 1989, Boyer and Construction, Inc., entered a construction contract with Pacific Terra, Inc., for the Ranchwood Estates project.
Truck insured Construction, Inc., between November 5, 1987, and November 17, 1990.
On January 3, 1991, Boyer filed a notice of election to wind up and dissolve Construction, Inc., indicating the election to dissolve was made on December 26, 1990. Thereafter, Boyer filed a certificate of dissolution in which he declared under penalty of perjury that Construction, Inc., was dissolved. Boyer signed the certificate of dissolution on December 31, 1990, but did not file it with the Secretary of State until December 31, 1991. Construction, Inc.’s contractor’s license expired on August 31, 1991, but Boyer d/b/a Boyer Construction’s license remained valid until May 31, 2005.
Assurance issued policies providing coverage to Boyer d/b/a Boyer Construction from August 28, 1991, through August 28, 1992, and August 28, 1995, through August 28, 1999. Maryland issued policies covering Boyer d/b/a Boyer Construction from August 28, 1999, through August 28, 2001.
According to defendants, they agreed with Truck to have their insureds represented by one firm in the Caudillo litigation and to share attorney fees and costs equally. Truck disputes that Maryland agreed to share the attorney fees and costs. Thereafter, the action settled. Truck and Assurance agreed to contribute equal shares toward an aggregate settlement of $3.4 million, with a reservation of whatever rights each might have to recover some portion of the amount contributed from the other. The record does not establish whether the defective construction covered by the settlement was completed before Construction, Inc., dissolved, or whether a portion was attributable to work performed by Boyer Construction.
Truck filed the present action for declaratory relief and equitable contribution, alleging that defendants had issued policies to Boyer d/b/a Boyer Construction, and that those policies covered the losses suffered by Construction, Inc., in the Caudillo litigation. Truck sought (1) a declaration that defendants were obligated to indemnify both Construction, Inc., and Boyer in the Caudillo litigation; and (2) a declaration regarding the proportion of indemnity costs the parties each should bear.
Defendants moved for summary judgment on the ground that they did not share a common insured with Truck, which is a prerequisite for equitable contribution. Defendants asserted the following: Truck insured Construction, Inc., a corporation, while defendants insured Boyer as an individual doing business as Boyer Construction. Truck’s policy also insured Boyer as an executive officer or director of Construction, Inc.; however, coverage applied only to the extent he was acting within the scope of his duties as an officer of the corporation. Assurance’s policy, which was effective August 1991 through August 1992, provided coverage only for Boyer’s activities in connection with Boyer Construction and any newly formed organizations in which Boyer had a minimum 50 percent interest, and not any current or past ventures. Therefore, it did not cover Boyer’s activities as an officer of Construction, Inc.
Defendants’ other policies, effective August 1995 through August 2001, covered Boyer, “but only with respect to the conduct of a business of which [Boyer is] the sole owner.” At the time these policies were issued, Boyer owned only Boyer Construction, since Construction, Inc., had been dissolved in December 1990. These policies also covered any business entity incorporated by Boyer if his interest in the corporation exceeded 50 percent and there was no other insurance available to that entity, but coverage applied “only until the expiration of the policy period in which the entity was incorporated or organized….” Construction, Inc., was not a business entity incorporated or organized by Boyer during the policy periods of August 1995 through August 2001.
For these reasons, defendants argued, their policies did not cover Construction, Inc., and, thus, they were not liable to contribute toward Truck’s portion of the settlement payment because (1) it was made on behalf of Construction, Inc., or Boyer, acting as an officer of Construction, Inc., and (2) neither was insured by defendants.
Truck opposed the motion, alleging that because Boyer was the sole owner of Construction, Inc., defendants’ policies provided coverage to the corporation. Truck disputed that the corporation dissolved on December 31, 1990, contending instead that it actually dissolved on December 31, 1991. Truck also asserted that whether Construction, Inc., was in existence during the coverage period of defendants’ policies was irrelevant because the policies included products/completed operations coverage, which would encompass damages arising out of Construction, Inc.’s operations after the operations had been completed.
In addition, Truck alleged that the scope of coverage under defendants’ policies was ambiguous and that any ambiguity must be construed in the insured’s favor, which means coverage extended to Boyer, Boyer Construction, and Construction, Inc. Moreover, Truck argued, Boyer and Construction, Inc., were not distinct entities, which meant that coverage extended to both.
Truck also filed a motion for summary adjudication of certain issues, asserting it had established that the parties’ policies covered a common insured. It argued that an insurer’s duty to defend was broader than the duty to indemnify, as all that need be shown is the potential for coverage under the policy. In Truck’s view, it had established this potential and, therefore, it was entitled to equitable contribution from defendants for its defense costs and indemnification costs.
Defendants opposed the motion on the ground that they did not share a common insured with Truck and that even if they did, Truck had failed to show the damages encompassed in the Caudillo litigation settlement were covered by defendants’ policies such that they had a duty of indemnification. Furthermore, defendants argued, it was irrelevant whether they had a duty to defend their alleged common insured because Truck’s pleadings for equitable contribution sought recovery of only a portion of its indemnification costs in the Caudillo litigation and did not seek recovery of its defense costs on the grounds defendants had a shared duty to defend.
The trial court determined that when defendants’ policies were issued, Construction, Inc., had been dissolved; therefore, defendants’ policies provided coverage only for Boyer d/b/a Boyer Construction, which was the sole existing business owned by Boyer at the time the policies were issued. And the court found that Boyer could not have a reasonable expectation of coverage for a defunct business under the unambiguous terms of defendants’ policies; the products/completed operations coverage simply provided coverage for work completed by defendants’ insured, and did not expand the definition of who was insured under the policies. Hence, the court granted defendants’ motion for summary judgment on the ground that the parties did not share a common insured, which rendered it unnecessary to rule on Truck’s motion for summary adjudication.
STANDARD OF REVIEW
A defendant moving for summary judgment must demonstrate either that the plaintiff cannot establish one or more of the elements of the cause of action or that the plaintiff cannot refute an affirmative defense established by the defendant. (Code Civ. Proc., § 437c, subd. (n); Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 835.)
When a defendant’s summary judgment motion is supported by affidavits sufficient to sustain the motion, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.) An issue of fact is not created by speculation, conjecture, imagination, or guesswork; it can be created only by a conflict in the evidence submitted to the trial court in support of, and in opposition to, the motion. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.)
The plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30.) When a fact upon which the plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the trial court. The court does not have the burden to conduct a search for facts that counsel failed to bring out. (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at p. 31.)
On appeal, we review the record de novo, using the same three-step analysis used by the trial court to determine whether the moving party met its burden of proof. (Artiglio v. General Electric Co., supra, 61 Cal.App.4th at p. 835; Mastro v. Petrick (2001) 93 Cal.App.4th 83, 86-87.) We must (1) identify the issues framed by the pleadings, (2) determine whether the moving party’s showing establishes facts negating the opponent’s claim, and (3) determine whether the opposition demonstrates the existence of a triable issue of material fact. (Mastro v. Petrick, supra, 93 Cal.App.4th at pp. 86-87; see also Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468, 1476.)
The first step in this analysis is critical because the allegations of the complaint delimit the scope of the issues on summary judgment. (Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1499.) The reviewing court need not address theories that were not raised in the pleadings (Williams v. California Physicians’ Service (1999) 72 Cal.App.4th 722, 738), and a plaintiff may not defeat a summary judgment motion by producing evidence to support claims outside the issues framed by the pleadings. (City of Hope Nat. Medical Center v. Superior Court (1992) 8 Cal.App.4th 633, 639.)
Furthermore, “de novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed. [Citations.]” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
Equitable contribution and subrogation are two avenues of recovery available to an insurer who pays for its insured’s loss. (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal .App.4th 1279 (hereafter Fireman’s Fund ).) “[S]ubrogation takes the form of an insurer’s right to be put in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss which the insurer has both insured and paid. [Citations.]” (Id. at pp. 1291-1292.) In contrast, equitable contribution describes the insurer’s “right to recover, not from the party primarily liable for the loss, but from a co-obligor who shares such liability with the party seeking contribution.” (Id. at p. 1293, italics & fn. omitted.)
In the trial court, Truck conceded its sole theory of recovery was that of equitable contribution, and not subrogation.
“[The] right of equitable contribution between coinsurers is not based on, and indeed has nothing to do with, the coinsurers’ subrogation to the rights of their insured against the party legally and primarily responsible for the loss. Whereas subrogation requires that the party to be charged be in an ‘equitable position … inferior to that of the insurer’ such that justice requires the entire loss be shifted from the insurer to the party to be charged [citation], contribution permits liability for the loss to be allocated among the various insurers without regard to questions of comparative fault or the relative equities between the insurers. [Citations.]” (Fireman’s Fund, supra, 65 Cal.App.4th at pp. 1295-1296.)
“[T]he right to [equitable] contribution arises when several insurers are obligated to indemnify or defend the same loss or claim, and one insurer has paid more than its share of the loss or defended the action without any participation by the others. Where multiple insurance carriers insure the same insured and cover the same risk, each insurer has independent standing to assert a cause of action against its coinsurers for equitable contribution when it has undertaken the defense or indemnification of the common insured.” (Fireman’s Fund, supra, 65 Cal.App.4th at p. 1293; see also Carmel Development Co. v. RLI Ins. Co. (2005) 126 Cal.App.4th 502, 507-508; American Casualty Co. v. General Star Indemnity Co. (2005) 125 Cal.App.4th 1510, 1522-1523; Low v. Golden Eagle Ins. Co. (2002) 101 Cal.App.4th 1354, 1361.)
“Equitable contribution permits reimbursement to the insurer that paid on the loss for the excess it paid over its proportionate share of the obligation, on the theory that the debt it paid was equally and concurrently owed by the other insurers and should be shared by them pro rata in proportion to their respective coverage of the risk. The purpose of this rule of equity is to accomplish substantial justice by equalizing the common burden shared by coinsurers, and to prevent one insurer from profiting at the expense of others.’ [Citations.]” (Fireman’s Fund, supra, 65 Cal.App.4th at p. 1293; original italics.)
For equitable contribution to apply, however, the insurers must be obligated to a common insured on the claim. There is no equitable contribution between insurers covering different insureds for the same risk. (Golden Eagle Ins. Co. v. Insurance Co. of the West (2002) 99 Cal.App.4th 837, 853; Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2004) Multiple Insurers on Risk, ¶ 8.66.3, p. 8-22.)
The parties do not dispute that Truck’s insurance polices provided coverage to Construction, Inc., a corporation. According to Truck, the trial court also ruled it was “undisputed” that Construction, Inc., had dissolved as of December 31, 1990, and the court used this as a basis for determining that defendants’ policies did not provide insurance coverage to the corporation because the policies were issued after the corporation ceased to exist. Truck argues the court erred in so ruling, given that Truck specifically disputed the dissolution date and presented evidence that the corporation actually dissolved on December 31, 1991, not 1990.
Truck relies on Corporations Code section 1905, subdivision (c), which states in part: “The certificate of dissolution shall be filed with the Secretary of State and thereupon the corporate powers, rights, and privileges of the corporation shall cease…. The Franchise Tax Board shall notify the Secretary of State when all taxes imposed on the corporation … have been paid or secured, at which time the corporation shall be dissolved as of the date of filing the certificate of dissolution and thereupon its corporate existence shall cease.” (Italics added.)
In Truck’s view, this directive means that Construction, Inc.’s dissolution was not effective until the certificate of dissolution was filed on December 31, 1991. (ABC Brewing Corp. v. C.I.R. (9th Cir.1955) 224 F.2d 483, 487-488 [a corporation does not formally cease to exist until the certificate of dissolution is filed]; In re Senor’s Q, Inc. (E.D.Cal.2001) 264 B.R. 669, 673 [same].)
However, even if Construction, Inc., actually dissolved on December 31, 1991, as Truck posits, this is of little assistance to Truck’s appellate claims. This fact has relevance only to the scope of coverage under the first policy issued by Assurance (policy no. EPA11260289), which became effective on August 28, 1991, and which is the only policy defendants issued prior to the corporate dissolution. However, under the terms of this policy, Construction, Inc., was not an insured regardless of whether it still existed.
Boyer, who was aware that he had signed a certificate of dissolution for Construction, Inc., in December 1990 and knew the corporation’s license was expiring in August 1991, apparently chose to insure only his activities in connection with Boyer Construction and not Construction, Inc. This is reflected in the fact that “Doug Boyer Construction Doug Boyer dba:” is the named insured in Assurance’s commercial policy no. EPA11260289. The policy provides that the form of business covered is “individual.”
Under the heading “WHO IS AN INSURED,” the policy states in pertinent part:
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.
b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business.
c. An organization other than a partnership or joint venture, you are an insured. Your executive officers and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders.
Because Boyer d/b/a Boyer Construction was designated as an individual and not an organization, it is Boyer who was the insured, and not his solely owned business or Construction, Inc.
“A sole proprietorship is not a legal entity itself. Rather, the term refers to a natural person who directly owns the business….” (Friedman, Cal. Practice Guide: Corporations (The Rutter Group 2004) ¶ 2:3, p. 2-1.) “An ‘insured’ must be a legal ‘person,’ such as an individual, partnership, or corporation. (Ins.Code, § 151.) The designation ‘dba’ or ‘doing business as’ simply indicates that [Boyer] operates his sole proprietorship under a fictitious business name. (See Bus. & Prof.Code, § 17900 et seq. [regulating fictitious business names].) ‘The designation “d/b/a” means “doing business as” but is merely descriptive of the person or corporation who does business under some other name. Doing business under another name does not create an entity distinct from the person operating the business.’ [Citation.] The business name is a fiction, and so too is any implication that the business is a legal entity separate from its owner.” (Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194, 1200)
In contrast, a corporation is a distinct legal entity, separate and apart from the persons who created it and from its shareholders. (Dole Food Co. v. Patrickson (2003) 538 U.S. 468, 474 [155 L.Ed .2d 643, 652]; Friedman, Cal. Practice Guide: Corporations, supra, ¶ 2:37, p. 2-17.) By insuring Boyer as an individual, Assurance did not insure this distinct entity. Thus, even if Construction, Inc., was a legally viable corporation until December 31, 1991, rather than 1990, this is of no moment because Assurance’s first policy insured only Boyer and did not provide coverage to Construction, Inc.
Truck claims the parties shared a common insured because their policies both covered Boyer in the conduct of his businesses. Assurance’s policy insured Boyer for the conduct of a business of which he was the sole owner, which Truck argues would include Construction, Inc., because Boyer was the sole shareholder and the corporation still existed at the time Assurance’s first policy became effective. Truck’s policy insured Boyer for his activities as an executive officer, director, or stockholder of Construction, Inc., “while acting within the scope of his duties as such….” Therefore, Truck asserts that it and Assurance had a common insured under the terms of their policies.
Assuming for purposes of discussion that Construction, Inc., can be considered Boyer’s solely owned business because he was the sole shareholder of the corporation, this does not establish that Truck and Assurance shared a common insured in the present case.
Assurance covered Boyer as an individual for activities performed in the conduct of his solely owned business. However, this meant Boyer Construction– which was the only business named in the insurance policy–and not every conceivable business owned by Boyer regardless of whether he alerted Assurance of its existence. It defies common sense to interpret the policy as covering Boyer’s activities with regard to an undisclosed business, given that an insurance company’s decision whether to issue an insurance policy for a particular price depends upon its knowledge and assessment of the risks involved.
Our interpretation that Assurance’s policy provides coverage only for Boyer’s conduct of the business named in the policy is supported by other policy provisions as follows:
4. Any organization you newly acquire or form, other than a partnership or joint venture, and over which you maintain ownership or majority interest, will be deemed to be a Named Insured if there is no other similar insurance available to that organization. However:
a. Coverage under this provision is afforded only until the 50th day after you acquire or form the organization or the end of the policy period, whichever is earlier; [¶ ] … [¶ ]
No person or organization is an insured with respect to the conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations.
These provisions disclose that a newly formed corporation would be covered by the policy, but only for a maximum of 50 days, and that no other type of business was covered other than the one designated on the declarations page. In other words, Assurance did not agree to insure Boyer with respect to any business that he owned regardless of whether he informed Assurance of its existence. Assurance merely agreed to insure him with respect to his d/b/a/, Boyer Construction, and for any newly formed business for the first 50 days after formation. Construction, Inc., which was formed in 1986, was not newly formed and it was not designated as Boyer’s business or a named insured on the declarations page. Therefore, Boyer was not insured by Assurance for his conduct in connection with Construction, Inc.
Furthermore, although the corporation technically may still have existed as of December 1991, Boyer signed a declaration under penalty of perjury on December 31, 1990, to the effect that the corporation “ha[d] been completely wound up” and that “Construction, Inc. is dissolved.” Consequently, Boyer could not have been performing any acts within the scope of his duties as an officer or shareholder after December 31, 1990. In fact, Corporations Code section 1903, subdivision (c) states in pertinent part: “When a voluntary proceeding for winding up has commenced, the corporation shall cease to carry on business except to the extent necessary for the beneficial winding up thereof and except during such period as the board may deem necessary to preserve the corporation’s goodwill or going-concern value pending a sale of its business or assets, or both, in whole or in part.” (See also Friedman, Cal. Practice Guide: Corporations, supra, ¶ 8:771, p. 8-88.17.)
Therefore, once Construction, Inc., filed its certificate of election to dissolve, and commenced dissolution proceedings, Boyer was no longer engaging in the conduct of a solely owned business (i.e., Construction, Inc.) within the meaning of Assurance’s subsequently issued policy. He was engaging only in the business of Boyer Construction.
Truck argues that because the corporation continued for purposes of suit even after its dissolution, and since Boyer had continuing liability as a shareholder (Corp.Code, § 2011), [FN1] he necessarily obtained the policy with Assurance to cover this risk. In Truck’s view, the policy language is ambiguous regarding whether Boyer’s activities on behalf of the corporation were covered under the “solely owned business” clause; therefore, it must be interpreted in favor of coverage to uphold the reasonable expectations of the insured. We disagree.
FN1. When Construction, Inc., was dissolved in 1991, Corporations Code section 2011, subdivision (a) provided: “(a) In all cases where a corporation has been dissolved, the shareholders may be sued in the corporate name of such corporation upon any cause of action against the corporation arising prior to its dissolution. This section is procedural in nature and is not intended to determine liability.” (Stats.1976, ch. 641, § 30, p. 1566; italics added.)
It was amended, effective January 1, 1992, and now provides in relevant part: “(a)(1) Causes of action against a dissolved corporation, whether arising before or after the dissolution of the corporation, may be enforced against any of the following: [¶ ] (A) Against the dissolved corporation, to the extent of its undistributed assets, including, without limitation, any insurance assets held by the corporation that may be available to satisfy claims. [¶ ] (B) If any of the assets of the dissolved corporation have been distributed to shareholders, against shareholders of the dissolved corporation to the extent of their pro rata share of the claim or to the extent of the corporate assets distributed to them upon dissolution of the corporation, whichever is less. [¶ ] A shareholder’s total liability under this section may not exceed the total amount of assets of the dissolved corporation distributed to the shareholder upon dissolution of the corporation. [¶ ] … [¶ ] (4) This subdivision applies to corporations dissolved on and after January 1, 1992. Corporations dissolved prior to that date are subject to the law in effect prior to that date.” (Italics added.)
Because Construction, Inc., dissolved on December 31, 1991, and the Caudillo plaintiffs’ claims did not arise until they filed suit in 1999, Boyer did not have any liability as a shareholder of the corporation pursuant to former Corporations Code section 2011. (Peñasquitos, Inc. v. Superior Court (1991) 53 Cal.3d 1180, 1183, 1190-1191.) However, the corporation itself remained liable, as did its liability insurer. (Id. at pp. 1183, 1191-1192.)
As with other types of contracts, the goal of interpreting insurance contracts “is to give effect to the mutual intent of the parties. [Citation.] If contract language is clear and explicit, we ascertain this intent from the written provisions and go no further. [Citation.]” (Maryland Casualty Co. v. Nationwide Ins. Co. (1998) 65 Cal.App.4th 21, 28.) But if the language is ambiguous or uncertain, the court must determine the interpretation that is most ” ‘consistent with the insured’s objectively reasonable expectations. In so doing, the court must interpret the language in context, with regard to its intended function in the policy. [Citation.] … “[L]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case….” [Citation.]’ ” (Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App .4th 1063, 1074, some italics added, some italics omitted.)
Even if the “solely owned business’ clause were ambiguous, it was not objectively reasonable for Boyer to expect his activities on behalf of an unnamed business to be covered under the policy, which was expressly issued to Boyer d/b/a Boyer Construction, not Boyer d/b/a Construction, Inc. This is especially true given that he had signed a declaration, under penalty of perjury, to the effect the corporation had been dissolved as of December 31, 1990, before the policy was issued. In his deposition, Boyer confirmed that he considered the corporation dissolved in 1990. We presume he also knew that the contractor’s license of the corporation would be expiring three days after Assurance’s policy became effective, which means he would no longer be conducting the contracting business on behalf of the corporation. In fact, as explained previously, once Boyer filed the certificate of election to dissolve and commenced dissolution proceedings in 1990, the corporation was required to cease to carry on business (Corp.Code, § 1903, subd. (c)), which means that Boyer was no longer engaging in the conduct of a business called Construction, Inc., within the meaning of Assurance’s subsequently issued policy. Under the circumstances, Boyer could not reasonably expect Assurance’s coverage of his conduct of a solely owned business to encompass (1) an inactive business, (2) which he considered dissolved, and (3) which was required by law to cease operations.
Accordingly, the trial court did not err in ruling that Truck’s insurance policies and Assurance’s policy no. EPA11260289 did not have a common insured, which defeats Truck’s claim for equitable contribution. As we will explain in part II, post, Truck’s reliance on defendants’ remaining policies in support of its equitable contribution claim is equally unavailing.
Truck argues that defendants’ policies share a common insured with Truck because all of the parties’ policies provide coverage (1) to Construction, Inc.; and (2) to Boyer as an individual. We disagree.
Truck’s Insurance Policies
Truck’s policies, which were intermittently in effect between November 1987 and July 1990, provide that the named insured is Doug Boyer Construction, Inc., and that it is a corporation. The general liability section of the policies defined the persons insured as follows in pertinent part:
(a) Except with respect to the ownership, maintenance or use of an automobile, each of the following is an insured under [coverage for Bodily Injury Liability] and [coverage for Property Damage Liability] to the extent set forth below: [¶ ] … [¶ ]
(3) If the named insured is designated in the Declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such….
Defendants’ Insurance Policies
Assurance’s remaining policies were in effect between August 1995 and August 1999, and Maryland’s policies were in effect between August 1999 and August 2001. All the policies provide that the named insured is Boyer, dba Boyer Construction, and that the business entity is an individual. The commercial general liability form for each policy defines “WHO IS AN INSURED” as follows:
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.
b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business.
c. An organization other than a partnership or joint venture, you are an insured. Your ‘executive officers’ and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders.
2. Each of the following is also an insured:
a. Your ’employees,’ other than your ‘executive officers,’ but only for acts within the scope of their employment….[¶ ] … [¶ ]
b. Any person (other than your ’employee’), or any organization while acting as your real estate manager.
c. Any person or organization having proper temporary custody of your property if you die…. [¶ ] … [¶ ]
d. Your legal representative if you die….
e. Your subsidiaries, and subsidiaries of your subsidiaries, are insureds if:
(1) They are legally incorporated entities; and
(2) You own more than 50% of the voting stock in them as of the effective date of this policy.
If such subsidiaries are not shown in the Declarations, you must report them to us within 180 days of the inception of this policy. [¶ ] … [¶ ]
4. Any business entity incorporated or organized by you under the laws of the United States of America … over which you maintain ownership or an interest exceeding fifty percent, will qualify as a Named Insured if there is no other similar insurance available to that entity. However:
a. Coverage under this provision applies only until the expiration of the policy period in which the entity was incorporated or organized….
Truck contends that Construction, Inc., was covered under all of defendants’ policies, not just Truck’s policy. We disagree.
When defendants issued their policies between August 1995 and August 2001, Construction, Inc., no longer existed, having been dissolved in 1991. Defendants’ policies expressly insured Boyer as an individual with respect to the conduct of his solely owned business; however, his only solely owned business at the time was Boyer Construction. The policies did not insure Construction, Inc., because (1) it was not an incorporated business entity over which Boyer maintained an ownership interest, (2) it was not incorporated during the policy period, and (3) more importantly, it was not a named insured. Thus, under the plain and unambiguous language of the policies, defendants did not insure Construction, Inc.
Truck argues the policies cover Construction, Inc., because the dissolved corporation still continued to exist pursuant to Corporations Code section 2010, which states in pertinent part: “(a) A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations, dispose of and convey its property and collect and divide its assets, but not for the purpose of continuing business except so far as necessary for the winding up thereof.”
This statute has no effect on who is an insured under defendants’ policies; it simply means that Construction, Inc., existed for purposes of defending against the Caudillo litigation, “but not for the purpose of continuing business …. ” (§ 2010, subd. (a).) This explains why the corporation could be held liable to the Caudillo plaintiffs even after it was dissolved; but it does not make the corporation defendants’ insured. Their policies covered Boyer, as an individual, and provided that such coverage extended only “to the conduct of a business of which [Boyer is] the sole owner.” Because the corporation had ceased to exist for the purpose of continuing business, Boyer was no longer conducting the business within the meaning of the policies.
Next, Truck contends the parties share a common insured because all of the parties’ policies covered Boyer as an individual. Truck’s interpretation of the policies is too simplistic.
Truck’s policies did not cover Boyer as an individual per se. Rather, Truck insured Construction, Inc., and also insured any “executive officer, director or stockholder thereof while acting within the scope of his duties as such.” In other words, Truck’s policies cover only Boyer while he is acting as an officer or stockholder of the corporation and not for any other purpose. Because a corporation can act only through its officers, directors, or stockholders, this coverage for Boyer is merely an extension of the corporation’s coverage.
In contrast, defendants’ policies do not cover Boyer for his activities with respect to the dissolved corporation; they insure him only for activities involved in the conduct of his solely owned business, Boyer Construction. Construction, Inc., no longer existed and defendants’ policies do not cover Boyer for activities performed in the past for a now defunct business. Defendants did not agree to insure Boyer for activities performed in the conduct of every business he ever owned, only the one he currently owned.
Under the circumstances, Truck has failed to demonstrate that the parties insured the same insured for the same risk, which is a prerequisite for equitable contribution. (Fireman’s Fund, supra, 65 Cal.App.4th at p. 1293; Golden Eagle Ins. Co. v. Insurance Co. of the West, supra, 99 Cal.App.4th at p. 853.) Truck agreed to insure Construction, Inc., and its officers while acting within the scope of their duties to the corporation, and defendants insured Boyer for his activities in connection with Boyer Construction. When Truck and Assurance split the settlement costs of $3.4 million in the Caudillo litigation, they each settled on behalf of their respective insureds. Absent a common insured, Assurance has no obligation to contribute to Truck’s portion of the settlement and neither does Maryland. The fact Maryland did not contribute to the settlement is a matter between Assurance and Maryland, who do share a common insured. Assurance may be able to seek equitable contribution from Maryland, but Truck cannot.
According to Truck, both defendants provided “Products/ Completed Operations Coverage to Mr. Boyer, and charged him a premium for this additional coverage every year in which coverage was in place….” It follows, Truck argues, that because the purpose of this policy provision is to provide coverage for bodily injury or property damage arising out of business operations after they are completed, then defendants’ policies necessarily were intended to cover work completed by Construction, Inc., in the past. According to Truck, “[a]t the very least, a question of fact exists as to whether Construction, Inc., [Boyer Construction and Boyer] had an expectation of coverage under the products/completed operations portion of [defendants’] policies.” We are not persuaded.
Truck points to nothing in the language of defendants’ policies that indicates they cover work completed by an entity or a person who is not an insured. Defendants’ policies simply cover completed operations by their insured, which is Boyer dba Boyer Construction, an individual, not Construction, Inc., the corporation. As the trial court correctly pointed out, “the [completed operations coverage] provision could not, by itself, make [Construction,] Inc. an insured.” Since Construction, Inc., is not an insured under the unambiguous language of the policies, Boyer could not have had a reasonable expectation of coverage for Construction, Inc.’s completed projects.
Under the circumstances, Truck’s reliance on the “Products/ Completed Operations Coverage” provision in defendants’ policies is misplaced.
Truck’s opening brief contains the following argument heading: “The Scope of the Duty to Defend is Broad.” It is not clear what point Truck intends to make. Truck posits that an insurer must provide a defense if any potential for coverage exists under the policy, and asserts that defendants failed to establish the nonexistence of such potential for coverage.
However, as we explained earlier, in reviewing a summary judgment motion, the allegations of the complaint delimit the scope of the issues. (Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at p. 1499.) The reviewing court need not address theories that were not raised in the pleadings (Williams v. California Physicians’ Service, supra, 72 Cal.App.4th at p. 738), and a plaintiff may not defeat a summary judgment motion by producing evidence to support claims outside the issues framed by the pleadings. (City of Hope Nat. Medical Center v. Superior Court, supra, 8 Cal.App.4th at p. 639.)
Truck’s pleadings did not raise the issue of defendants’ duty to defend their insured, and Truck did not seek contribution toward its costs of defending Construction, Inc. It sought only a declaration that defendants had a duty to indemnify Construction, Inc., and a contribution from defendants toward Truck’s indemnification costs. Hence, Truck’s argument regarding defendants’ duty to defend is irrelevant.
Furthermore, Truck overlooks that “a liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity.” (Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1081; italics added.) Truck does not submit any authority for the proposition that an insurer has a duty to defend an entity or person who is not an insured under the policy. Since defendants’ moving papers in support of their motion for summary judgment amply demonstrated that Construction, Inc., was not their insured, this was sufficient to establish the absence of a duty to defend Construction, Inc.
According to Truck, there is no distinction in law or fact between Boyer and Construction, Inc. It appears to argue that we should ignore the labels affixed to Boyer’s business and treat them as the same entity. In effect, Truck wants us to treat Boyer as the alter ego of Construction, Inc., and pierce the corporate veil to provide coverage to the corporation under defendants’ policies.
A similar argument was rejected in American Home Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951 (hereafter American ) as follows: “In United States Fire Ins. Co. v. National Union Fire Ins. Co. (1980) 107 Cal.App.3d 456, 469, the court reiterated the well-established rule that the alter ego doctrine is not applied ‘ “to eliminate the consequences of corporate operations,” ‘ but it is utilized ‘ “to avoid inequitable results.” [Citation].’ The court declared that ‘alter ego’ may not be applied ‘so as to prejudice the rights of an innocent third party who has dealt with the corporation as such.’ [Citation.] [¶ ] The corporate entity is disregarded to prevent fraud or an injustice, not to inflict an obligation on an innocent corporation. [Citations.] The fraud or inequity sought to be eliminated must be that of the party against whom the alter ego doctrine is invoked, and ‘such party must have been an actor in the course of conduct constituting the “abuse of corporate privilege” ….’ [Citations.] No such circumstances exist in this case.” (American, supra, 122 Cal.App.3d at pp. 966-967.)
Accordingly, American held American Home Insurance Company could not apply the alter ego doctrine against Travelers Indemnity Company because “Travelers was not a party to any inequitable conduct; it simply provided the coverage which [its insureds] bargained for. Even if the allegations support a finding of alter ego, the equitable doctrine may not be applied to rewrite Travelers’ policy and add a party not intended to be insured.” (American, supra, 122 Cal.App.3d at p. 967; see also Seretti v. Superior Nat. Ins. Co. (1999) 71 Cal.App.4th 920, 931 [shareholders cannot invoke the alter ego doctrine to obtain the status of insureds]; Friedman, Cal. Practice Guide: Corporations, supra, ¶ 2:57.6a, p. 2-38.)
Here, defendants were not a party to any inequitable conduct; they simply insured Boyer, not Construction, Inc. That there are facts which may have enabled the Caudillo plaintiffs to pierce the corporate veil does not alter this result. From defendants’ perspective, Boyer and Construction, Inc., were not one and the same entity, and their policies may not be rewritten to add a party they did not intend to insure.
In its reply brief, Truck asserts that defendants’ argument in their respondents’ brief that Boyer and Construction, Inc., are not alter egos “completely avoids the issue actually presented in this case. The real point is that Mr. Boyer and Construction, Inc., shared liability for the work performed at the Ranchwood project.” According to Truck, “[i]t is impossible to distinguish what work” was done by Boyer as an individual and what work was done by him as an officer of Construction, Inc.; therefore, both Boyer and Construction, Inc., were jointly and severally liable for any damages.
However, defendants’ misperception of Truck’s argument is understandable, given that the argument appears in Truck’s opening brief under a heading entitled, “There Is No Distinction in Law or Fact Between Boyer and Construction, Inc.,” and the text refers expressly to the alter ego doctrine. Furthermore, Truck fails to explain how the concept of joint and several liability has any bearing on who is an insured under the parties’ respective policies. Even if Boyer and Construction, Inc., have joint and several liability for the Caudillo plaintiffs’ damages, Truck cannot obtain money from defendants under an equitable contribution theory absent a common insured. As explained above, Truck insured Construction, Inc., and defendants insured Boyer; i.e., the parties’ policies do not cover a common insured.
Whether it is based on the alter ego doctrine or on principles of joint and several liability, Truck’s argument is unavailing.
In its reply brief, Truck argues for the first time that under the facts of this case, equitable principles entitle Truck to contribution from defendants regardless of whether the parties shared a common insured under the terms of their respective insurance contracts. According to Truck, even if Construction, Inc., and Boyer Construction are different entities, they both were sued for their work on the Ranchwood Estates project, and their respective insurance policies provided coverage. Thus, in Truck’s view, it and defendants covered the same risk.
Our review discloses that Truck misunderstands its burden on appeal and misunderstands the cases upon which it relies to support its argument.
First, Truck did not oppose defendants’ motion for summary judgment on the ground that equitable contribution does not require the existence of a common insured as defendants alleged. Having failed to raise this theory in the trial court, Truck may not do so for the first time on appeal. (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at pp. 28-29, 31; accord, Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 651; David v. Abergel (1996) 46 Cal.App.4th 1281, 1283, fn. 3.)
Second, Truck did not raise this argument in its opening brief; rather, Truck saved it until the reply brief, at which point defendants were deprived of the opportunity to respond. Arguments are forfeited if raised for the first time in a reply brief without a showing of good cause. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
For these reasons, we need not explain why, in any event, the cases on which Truck relies do not support its position.
The judgment is affirmed.
We concur: DAVIS and BUTZ, JJ.