Filed 4/8/19 Wright v. The Estate of Walter Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ROCKY WRIGHT, Individually and as Trustee, etc.,

Plaintiff and Appellant,

v.

THE ESTATE OF WALTER JOHNSON,

Defendant and Respondent;

STAR INSURANCE COMPANY,

Real Party in Interest and Respondent.

E068412

(Super.Ct.No. CIVDS1410112)

OPINION

APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.

Romaine Lokhandwala Law Group and William A. Romaine for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Locke Lord, Kelly S. Biggins, Christopher R. Barth, and Hugh S. Balsam for Real Party in Interest and Respondent.

I. INTRODUCTION

In September 2011, Walter Johnson, deceased, was piloting a Cessna P210 model aircraft over Tehachapi in Kern County when the plane crashed, killing Johnson and his passenger, and igniting a fire which spread to plaintiff and appellant, Rocky Wright’s, real property. The fire destroyed personal properties, fixtures and growing crops (timber) on Wright’s real property. In this action, Wright sued Johnson’s estate, seeking to recover at least $1.75 million in damages to Wright’s real and personal properties from Johnson’s aircraft liability insurance carrier and real party in interest and respondent, Star Insurance Company (Star), pursuant to Probate Code section 550.

The trial court entered summary judgment in favor of Star on Wright’s first amended complaint for negligence per se and trespass on the ground Wright could not prove an essential element of his insurance claim against Star, namely, that Johnson had complied with the “pilot warranty endorsement” or “PWE” of his aircraft liability insurance policy with Star. The PWE required any pilot of the Cessna, including Johnson, to have completed an “Annual MFG School Requirement.” That is, the September 4, 2011, flight was not covered unless its pilot, Johnson, had “successfully completed the aircraft manufacturer’s approved ground and flight training school, or its equivalent as approved by the Aviation Managers, in the insured make and model aircraft within the preceding 12 months of the intended flight.”

Wright appeals, claiming the trial court erroneously placed the burden on Wright to show that Johnson had complied with the Annual MFG School Requirement, rather than placing the burden on Star to show that Johnson had not complied with the Annual MFG School Requirement and therefore, that Wright’s damages claims against Johnson were not covered by the policy. We affirm the judgment in favor of Star.

As we explain, proving that Johnson had completed the PWE’s Annual MFG School Requirement was an essential element of Wright’s insurance claim against Star. At trial on his insurance claim against Star, Wright would have had the burden of proving that Johnson had completed the requirement. Thus, in moving for summary judgment, Star had the initial burden of showing Wright could not prove Johnson had completed the requirement. Star met this burden, and this shifted the burden to Wright to show Johnson had met the requirement or to raise a triable issue whether Johnson had met the requirement. Wright did not meet this burden. Thus, summary judgment was properly entered in favor of Star.

II. FACTS AND PROCEDURE

A. The Aircraft Insurance Policy (Issued by Star to Johnson)

In November 2010, Star issued an “aircraft insurance policy” to The Walter Johnson Family Trust, as the named insured. The policy included liability coverage for the Cessna for a one-year period, including on September 4, 2011, the date the plane crashed in Tehachapi and its pilot Johnson and his passenger were killed. Johnson resided in and the flight originated from San Bernardino County.

As noted, the policy’s pilot warranty endorsement, or PWE, included an “Annual MFG School Requirement” which required any pilot of the Cessna, including Johnson, to have “completed the aircraft manufacturer’s approved ground and flight training school, or its equivalent as approved by the Aviation Managers, in the insured make and model aircraft within the preceding 12 months of the intended flight.”

B. Wright’s Operative First Amended Complaint

Probate Code section 550 allows a plaintiff to sue the estate of a deceased person, without naming the estate’s personal representative, in order “to establish the decedent’s liability for which the decedent was protected by insurance.” Summons in the action is to be “served on a person designated in writing by the [decedent’s] insurer or, if none, on the insurer.” (Prob. Code, § 552, subd. (a).) The decedent’s insurer may deny or otherwise contest its liability in the action, or in an independent action. (Prob. Code, § 553.) Subject to exceptions not applicable in this case, the damages sought in the action may not exceed “the limits and coverage of the insurance,” and a judgment in the action is enforceable only from the insurance coverage. (Prob. Code, § 554, subd. (a).)

In July 2015, Wright filed his operative first amended complaint (the FAC) against Johnson’s estate, pursuant to Probate Code section 550, seeking to establish Johnson’s liability, and Star’s liability under its aircraft liability insurance policy with Johnson, for damages Wright incurred as a result of the September 4, 2011, plane crash. The FAC alleges two causes of action, styled as “Property Damage by Negligence Per Se” and “Trespass to Land Under Cultivation Causing Damage to Growing Crops.”

The FAC alleges Johnson negligently “failed to operate the aircraft in accordance with the provisions of Public Utilities Code section 21403” in that the flight was conducted at an altitude insufficiently high to avoid collision with the terrain below it, or in that the flight was conducted over vegetation that, in the event of a collision between the aircraft and the terrain, it was reasonably apparent and probable that a fire would be ignited and spread to Wright’s adjacent real property, causing damages. The FAC seeks $1.5 million in damages to Wright’s growing crops, $250,000 in damages for Wright’s lost profits and lost use of his property, and additional damages according to proof.

C. Star’s Motion for Summary Judgment/Adjudication and the Trial Court’s Ruling

Star moved for summary judgment on the FAC, or summary adjudication of each cause of action, on two grounds: (1) Johnson had not complied with the requirements of the policy’s pilot warranty endorsement or PWE, and (2) coverage for the crash was excluded pursuant to “Exclusion 1” of the policy, which excludes coverage when the flight is “for any unlawful purpose.”

Following a hearing, the court granted summary judgment for Star on the ground Wright could not show that Star’s policy covered Wright’s damages claims (or Johnson’s

 

liability for the September 4, 2011, crash), because Wright could not show that Johnson had completed the Annual MFG School Requirement of the PWE within the 12 months preceding the crash. The court rejected Star’s alternative claim that coverage was excluded pursuant to Exclusion 1 of the policy.

Regarding Johnson’s failure to comply with the Annual MFG School Requirement of the PWE, Star adduced undisputed evidence that, on October 13, 2010, Falcon Insurance Agency of California, Inc. (Falcon), acting on behalf of The Walter Johnson Family Trust, submitted a request for insurance to “Britt/Paulk.” The request “set forth certain information about the risk to be insured, including information on Walter Johnson’s piloting history, his age (71 years), and the type of aircraft to be insured . . . 1979 Cessna P210 . . . .” The next day, Britt/Paulk responded to the request by providing a quotation for insurance, to be issued by Star, that contained the PWE language. On November 9, 2010, Johnson, on behalf of his family trust and through Falcon, accepted Star’s terms by requesting that the policy be issued on November 10. Britt/Paulk issued the policy, which included the PWE language, on November 15. On November 30, Falcon submitted an insurance application, signed by Johnson, which included an acknowledgement that the policy was subject to “Minimum Pilot Requirements” and also contained “Special Pilot Requirements: Annual Ground & Flight Training.” In response to Star’s motion, Wright offered no evidence that Johnson, who was piloting the Cessna on September 4, 2011, had completed the PWE requirements.

In its ruling on the motion, the court concluded Wright would have the burden at trial of showing that Johnson had completed the Annual MFG School Requirement of the PWE, given that the PWE was “a condition” of coverage under Star’s policy, or a condition “for Star’s [p]olicy to exist.” The court reasoned: “Since the PWE imposes a condition for the policy to exist, . . . Wright bears the burden of establish[ing] the PWE condition was met in order to establish a [p]olicy exists that would provide [Wright] a basis to pursue” Star as Johnson’s insurer pursuant to Probate Code section 550. The court ruled Star met its initial burden, in moving for summary judgment, of showing that Wright could not show Johnson had completed the Annual MFG School Requirement of the PWE. Star submitted Wright’s deposition testimony in which he admitted he had no information concerning Johnson’s pilot training, including for the Cessna Johnson was piloting. More broadly, Star showed Wright admitted in written discovery responses that Wright had no evidence that Johnson or his passenger had complied with the PWE.

In sum, the court ruled: “Since Wright at trial will bear the burden that the PWE was met by [Johnson] in order for the [p]olicy to exist to provide coverage for Wright’s damages, and since the facts and submitted evidence establish Wright has no evidence” that Johnson met the PWE’s Annual MFG School Requirement, and Wright could not obtain such evidence, then Wright could not establish an essential element of his claim that Star’s policy covered his claims for damages. The court accordingly entered judgment in favor of Star on Wright’s FAC, and Wright appeals.

III. DISCUSSION

As indicated, Wright claims the court erroneously placed the burden on Wright to show that Johnson had completed the Annual MFG School Requirement of the PWE, and therefore, that Wright’s claims against Johnson were covered by Johnson’s aircraft liability insurance policy with Star. Wright claims that, in moving for summary judgment, Star had the initial burden of showing that Johnson had not completed the Annual MFG School Requirement, and therefore, that Wright’s damages claims against Johnson were not covered by Johnson’s aircraft liability insurance policy with Star.

We disagree. As we explain, the court properly placed the burden on Wright to prove Johnson had completed the Annual MFG School Requirement, Wright did not do so, and summary judgment was properly entered in favor of Star.

A. Standard of Review on Summary Judgment

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment is properly granted where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

A defendant moving for summary judgment bears the initial burden of showing that the plaintiff’s causes of action have no merit. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-851.) The defendant meets this burden by making a prima facie showing either that (1) one or more elements of each cause of action cannot be established or (2) there is a complete defense to each cause of action. (Id. at p. 849; Code Civ. Proc., § 437c, subds. (o), (p)(2).) If the defendant makes this showing, the burden shifts to the plaintiff to produce evidence of a triable issue of material fact concerning the element or defense. (Aguilar v. Atlantic Richfield Co., supra, at pp. 849-850; Code Civ. Proc., § 437c, subd. (p)(2).)

We review an order granting summary judgment de novo, considering all of the evidence adduced on the motion (except properly excluded evidence) and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Ca1.4th 465, 476.) We strictly construe the moving party’s evidence, liberally construe the opposing party’s evidence, and resolve all doubts concerning the propriety of granting the motion in favor of the opposing party. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)

B. Summary Judgment Was Properly Granted in Favor of Star on Wright’s FAC

It is well established that, as a general rule, an insured has the burden of proving that “the occurrence forming the basis of its claim is within the basic scope of insurance coverage. [Citations.] And, once an insured has made this showing, the burden is on the insurer to prove the claim is specifically excluded.” (Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1188; Doyle v. Fireman’s Fund Ins. Co. (2018) 21 Cal.App.5th 33, 40.) Placing the burden of proof on the insured to “establish coverage” under the insurance policy, or to show that the terms of an insurance “coverage provision” have been met, “‘conforms with an insured’s general duty to establish coverage where it would otherwise not exist . . . .’” (Aydin Corp. v. First State Ins. Co., supra, at pp. 1192, 1194.)

As noted, the Annual MFG School Requirement of the PWE required any pilot of the Cessna aircraft, including Johnson, to have “successfully completed the aircraft manufacturer’s approved ground and flight training school, or its equivalent as approved by the Aviation Managers, in the insured make and model aircraft within the preceding 12 months of the intended flight.” As such, the Annual MFG School Requirement was a “coverage provision” or a condition precedent to covering Wright’s claims under Star’s aircraft liability insurance policy with Johnson. As Wright concedes, an essential element of his claims against Star, as the real party in interest to his negligence claims against Johnson’s estate, was to show that his negligence claims were “protect[ed] by insurance,” that is, that his negligence claims were covered under the aircraft liability insurance policy that Star issued to Johnson. (Pelayo v. City of Downey (2008) 570 F.Supp.2d 1183, 1193-1194.)

Thus, Wright would have had the burden of proof at trial of showing that Johnson had complied with the PWE’s Annual MFG School Requirement. Thus, in moving for summary judgment, Star had the initial burden of showing Wright could not prove, or had no evidence that, “Johnson or any other person who was operating the [a]ircraft while it was in flight prior to the [c]ollision had complied with” the PWE’s Annual MFG School Requirement. Star met this burden, and this shifted the burden to Wright to show that Johnson had completed the Annual MFG School Requirement, or to raise a triable issue of fact concerning whether Johnson had met the requirement. (Code Civ. Proc., § 437c, subd. (p)(2).) Wright did not meet this burden. Thus, summary judgment was properly granted in favor of Star on Wright’s FAC.

Wright argues the court erroneously placed the burden on Wright to show or to raise a triable issue of fact that Johnson had completed the PWE’s Annual MFG School Requirement. Without citing authority, Wright asserts that, “once he established that a policy of insurance had been issued by Star contemplating coverage for [Johnson’s] liability for damage caused by the operation of the [a]ircraft, Wright’s burden as to the ‘protected by insurance’ element [of his claim against Star] was satisfied and it was then Star’s burden to offer evidence to establish an affirmative defense that a condition of its insurance agreement had not been satisfied.” (Italics added.) We disagree.

As Wright concedes, “[t]here is no question but that Star included compliance with the PWE as a condition of [Star’s] agreement to cover [Johnson] in his operation of the aircraft. The PWE cannot be read any other way.” Thus, Johnson’s failure to comply with the PWE’s Annual MFG School Requirement was not an affirmative defense to coverage or an exclusion to coverage. And, contrary to Wright’s argument, Star did not have the initial burden of showing, in moving for summary judgment, that Johnson did not comply with the PWE’s Annual MFG School Requirement, and therefore, that Wright’s claims were not covered under the policy.

Rather, the PWE’s Annual MFG School Requirement was a warranty provision in Johnson’s insurance contract with Star, and a condition precedent to Star’s agreement to cover Johnson for the September 4, 2011, flight, and Johnson was required to fulfill this warranty provision as a condition precedent to having Wright’s damages claims covered under Star’s insurance policy with Johnson. (Chase v. National Indem. Co. (1954) 129 Cal.App.2d 853, 858 [“A statement in an insurance policy importing an intention to do or not to do a thing which materially affects the risk is a warranty that such act or omission will take place. [Citation.] . . . Generally speaking, compliance with the terms of a warranty is a condition precedent to a right to recovery.”]; Trishan Air, Inc. v. Fed. Ins. Co. (9th Cir. 2011) 635 F.3d 422, 427-428 [California law requires an insured to strictly comply with insurance contract warranty provisions].)

Indeed, “strict compliance with pilot warranties serves as a necessary corollary of aviation insurance policies. ‘. . . Pilot qualifications and experience are obviously factors bearing directly on the risk the insurer is underwriting.’” (Trishan Air, Inc. v. Fed. Ins. Co., supra, 635 F.3d at p. 428, quoting Old Republic Ins. Co. v. Gormley (D. Md. 1999) 77 F.Supp.2d 705, 707.) Thus, and as Wright concedes, Star “included compliance with the PWE,” and its Annual MFG School Requirement, as a condition of Star’s agreement to cover Johnson’s liability to Wright for Wright’s negligence claims against Johnson. Thus, Wright had the burden of proving Johnson had completed the PWE’s Annual MFG School Requirement, or warranty, as a condition of obtaining coverage for his claims under Star’s aircraft liability insurance policy with Johnson.

IV. DISPOSITION

The judgment is affirmed, and Star shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.