Certain Underwriters at Lloyd's of London v. Superior Court (Powerine)

In Certain Underwriters at Lloyd's of London v. Superior Court (Powerine) (2001) 24 Cal.4th 945, the court held a standard CGL policy that covered " 'all sums that the insured becomes legally obligated to pay as damages,' " limited the insurer's duty to indemnify the insured to "money ordered by a court." ( Lloyd's of London, supra, 24 Cal.4th at p. 960.) Accordingly, the indemnity duty did not "extend to any cleanup expenses required by an administrative agency, like the Regional Water Boards, pursuant to an environmental statute, like the Porter-Cologne Act." ( Id. at p. 974.) In Powerine the court focused on the correlation between the standard policy's duty of indemnification and duty to defend suits brought against the insured. The court reasoned that since the term suits is limited to civil court actions ( Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 878-888.), and the duty to defend is broader than the duty to indemnify, the duty to indemnify cannot include sums not ordered by a court in a suit. ( Lloyd's of London, supra, 24 Cal.4th at p. 961.) The court explained "the provision imposing the duty to indemnify, which can arise only after damages are fixed in their amount, generally states that the insurer 'will pay all sums that the insured becomes legally obligated to pay as damages' for harm proved within coverage.The provision imposing the duty to defend expressly links 'damages' to a 'suit,' i.e., a civil action prosecuted in a court. For it is in a 'suit' that 'damages' are sought in some amount through the court's order.The provision imposing the duty to indemnify impliedly links 'damages' to a 'suit,' i.e., a civil action prosecuted in a court. For it is in a 'suit' that 'damages' are fixed in their amount through the court's order." ( Id. at pp. 961-962.) In Powerine, the standard CGL policy contained a "no-action provision, which, in typical language, generally states that 'no action' by a third party 'shall lie' against the insurer unless the insured's 'obligation to pay shall have finally been determined' either by a 'judgment' against the insured 'obtained after an actual trial' or by a 'settlement' reduced to contract to which the insurer 'agrees.' " ( Lloyd's of London, supra, 24 Cal.4th at p. 962, fn. 4.) The court found this provision supported its conclusion "the standard policy itself reveals that the duty to indemnify is limited to money ordered by a court." (Ibid.) The court explained: "This provision implies that the insurer may owe a duty to fund such a settlement one agreed to by the insurer. It also implies that the insurer may owe a duty to indemnify. In so doing, referring as it does to a 'judgment,' it implies as well that that duty is limited to money ordered by a court." (Ibid.)