Foothill Village Homeowners Assn. v. Bishop

Foothill Village Homeowners Assn. v. Bishop (1999) 68 Cal. App. 4th 1364 81 Cal. Rptr. 2d 195, involved a condominium complex for which the homeowners association voluntarily purchased earthquake insurance prior to the Northridge earthquake. The insurance proceeds amounted to approximately $ 2 million, but because the complex was severely damaged, the homeowners voted not to rebuild. The issue was whether the earthquake insurance proceeds should go to the lenders or to the individual owners. The Court concluded that the lenders' claims to the proceeds failed for the same reason that the similar claim failed in Ziello, because "the lender never required the purchase of earthquake insurance and the lender never explicitly included in any of the loan documents a provision for it to share in the proceeds of any earthquake insurance." (Id. at pp. 1366-1367.) The Court stated in dicta that the lender could have protected itself "by either requiring earthquake insurance or inserting in the loan documents express provisions giving it a secured interest in any insurance proceeds without limitation." (Id. at p. 1377.) In Foothill Village, we took judicial notice of claims bulletin No. 98-4, issued on October 9, 1998, by the California Earthquake Authority (CEA). The purpose of the bulletin was to advise participating insurers in the process of converting their earthquake policies to CEA policies and/or issuing new CEA policies. It discussed the conditions under which a lender or mortgagee could be named as a joint payee on a CEA policy. The CEA interpreted Ziello as indicating "that under many commonly used deed of trust forms the mortgagee may have no legal right to control residential earthquake insurance proceeds." (CEA Claims Bull. No. 98-4, Oct. 9, 1998, p. 2.) The CEA advised its members that an exception would exist: (1) "where the mortgagee has required earthquake insurance as an express condition for making the loan and that requirement is embodied in the loan documents, forming part of the agreement between lender and borrower"; or (2) "where the borrower has given the mortgagee through express language in the loan documents: (a) an assignment of all insurance proceeds from all insurance policies that insure losses to the encumbered real property, regardless of whether the insurance was required as a condition for making the loan; (b) a right to share control or to direct the application of insurance proceeds, whether or not the insurance was required; (c) the right to require of the borrower that the lender be named in any of borrower's property insurance policies as mortgagee and beneficiary of a so-called 'standard mortgage clause." (CEA Claims Bulletin No. 98-4, Oct. 9, 1998, pp. 2-3, fns. omitted.)