MOSK, Acting P. J. —
Customers of a securities firm made claims against that firm based on real estate investments the firm's broker-dealers recommended. An entity that had an interest in and operated each of the real estate investments filed for bankruptcy, and at least some of the real estate investments became debtors in that bankruptcy proceeding. The appointed examiner in the bankruptcy proceeding found that the entity was engaged in a fraudulent "Ponzi scheme."
On November 10, 2008, DBSI, Inc. (DBSI), and various subsidiaries filed for bankruptcy. On October 19, 2009, a court-appointed examiner filed a "Final Report of the Examiner" with respect to the operation of DBSI.
The e-mail attached to the Bou-Sliman letter stated, "In short, the Examiner confirmed what we all suspected/feared as being true — that is, DBSI generally (and Douglas Swenson specifically) masterminded at least an eight year long ponzi scheme to defraud and misappropriate funds from investors." The summary reported, among other things, that DBSI was "burdened by huge high interest debt and master lease payment obligations, excessive insider distributions, and unrestrained losing investments"; DBSI "booked profits from inflated markups of real estate for sale to outside investors"; DBSI used "tenant-in-common ... investor and bond and note money interchangeably and pooled such money to make required payments when they came due"; "Investor funds from all sources were commingled and treated as fungible funds"; DBSI's "guarantees of investments were illusory and were based on the cultivated false appearance that DBSI had substantial value"; and "the marketing claim that `no investors had ever lost money' was also illusory and reflected that newly raised investor funds were being used to pay off existing investors."
On April 20, 2010, Darol Paulsen, on behalf of Crown Capital, executed an "Application for Professional Liability Insurance" from defendant and respondent Endurance American Specialty Insurance Company (Endurance) for a professional liability insurance policy for work performed by its security broker-dealers and investment advisers. Concerning Crown Capital's claims experience, question 9 of the application asked, "Have any claims, suits or proceedings (including without limitation: any shareholder action or derivative suit; or any civil, criminal, or regulatory action, or any complaint, investigation or proceeding related thereto) been made during the past five years against: (a) the Applicant; (b) its predecessors in business; (c) any subsidiary or affiliate of the Applicant; (d) any other entity proposed for coverage; or (e) any past or present principal, partner, managing member,
Further concerning Crown Capital's claims experience, question 10 of the application asked, "Is the Applicant (after diligent inquiry of each principal, partner, managing member, director or officer) aware of any fact, circumstance, incident, situation, or accident (including without limitation: any shareholder action or derivative suit; or any civil, criminal, or regulatory action, or any complaint, investigation or proceeding related thereto) that may result in a claim being made against: (a) the Applicant; (b) its predecessors in business; (c) any subsidiary or affiliate of the Applicant; (d) any other entity proposed for coverage; or (e) any past or present principal, partner, managing member, director, officer, employee, leased employee or independent contractor of the Applicant, its predecessors in business, any subsidiary or affiliate of the Applicant or any other entity proposed for coverage?" Paulsen answered that question, "No."
The application contained the following exclusion (Application Exclusion): "
When Crown Capital applied for the Endurance professional liability insurance policy, it submitted a loss run report from its previous insurer, Arch Specialty Insurance Company. The loss run report disclosed the Bou-Sliman Claim. On August 3, 2010, Endurance issued to Crown Capital professional liability policy No. PPL10001995400 (Policy), but the term of the policy was from April 1, 2010, to April 1, 2011.
On April 21, 2010, Kurt Bochner, a customer of Crown Capital through which he invested in DBSI projects, initiated an arbitration entitled Bochner v. McDonald (Bochner Claim) by filing a statement of claim with the
On September 7, 2010, Susan Biles, a customer of Crown Capital through which she invested in DBSI projects, initiated a FINRA arbitration entitled Biles v. Summit Financial Advisors (Biles Claim). On September 21, 2010, Crown Capital reported the Biles Claim to Endurance.
On March 25, 2011, Linda Grana, a customer of Crown Capital through which she invested in DBSI projects, initiated a FINRA arbitration entitled Grana v. Crown Capital Securities (Grana Claim). On April 29, 2011, Crown Capital reported the Grana Claim to Endurance.
Endurance denied insurance coverage to Crown Capital under the Policy for the Bochner, Biles, and Grana Claims, and refused to defend Crown Capital against those claims. Crown Capital brought an action against Endurance, and in its first amended complaint, Crown Capital alleged causes of action for reformation of contract, breach of contract, and bad faith. Within these causes of action, Crown Capital asserted claims for the denial of coverage by Endurance for FINRA arbitrations submitted by other Crown Capital customers concerning investments unrelated to DBSI. Crown Capital ultimately dismissed these claims, and they are not involved in this appeal.
Endurance filed an answer to the first amended complaint, which answer included "counter-claims," including three causes of action for declaratory relief — one each for the Bochner, Biles, and Grana Claims — seeking a declaration as to each tendered claim that the claim was excluded from coverage under the Policy.
Endurance moved for summary judgment or, alternatively, summary adjudication, on, as relevant here, its declaratory relief cross-claims. The trial court granted Endurance summary adjudication on its cross-claims as to the Bochner, Biles, and Grana Claims, ruling that those claims were excluded from coverage under the Policy's Application Exclusion and that there was no potential for coverage. The trial court reasoned that the Final Report of the Examiner that was attached to the Bou-Sliman Claim "disclosed an array of investments under the DBSI umbrella, the failure of which were [sic] tied to the DBSI activities. [¶] The evidence shows that the Bochner, Biles, and Grana claims all arise out of a `fact, circumstance, act, error or omission' that was previously disclosed." Crown Capital filed a petition for writ of mandate in this court challenging the trial court's grant of summary adjudication. We denied the writ petition.
Crown Capital contends that the trial court erred in finding that there were no disputed material issues of fact concerning coverage for the Bochner, Biles, and Grana Claims under the Policy and that those claims were excluded from coverage under the Application Exclusion. The trial court did not err.
"`When determining whether a particular [insurance] policy provides a potential for coverage ..., we are guided by the principle that interpretation of an insurance policy is a question of law. [Citation.]' [Citation.]" (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390 [33 Cal.Rptr.3d 562, 118 P.3d 589].) The standard of review is de novo with respect to an order granting summary judgment when, on undisputed facts, the order is based on the interpretation or application of the terms of an insurance policy. (Federal Ins. Co. v. Steadfast Ins. Co. (2012) 209 Cal.App.4th 668, 679 [147 Cal.Rptr.3d 363].)
Bou-Sliman's claim concerned his investment in a DBSI investment property known as Northpointe Towers, which investment Crown Capital broker-dealer Naylor recommended. Bochner's claim concerned his investment in DBSI investment properties known as DBSI Lamar LLC and DBSI Oakwood Plaza Acquisition, which investment Crown Capital broker-dealer Kenneth McDonald recommended. Biles's claim concerned her investment in DBSI investment properties known as Village at Old Trace and Landmark Towers, which investment Crown Capital broker-dealer James Franceus recommended. Grana's claim concerned her investment in DBSI investment properties known as DBSI Peachtree Corners Pavilion and DBSI E-470 East, which investment Franceus recommended. Crown Capital argues that the Bochner, Biles, and Grana Claims do not arise from the Bou-Sliman Claim because none of the Bochner, Biles, or Grana Claims involved the same investor or the same investment that was at issue in the Bou-Sliman Claim, and none of the investments at issue in the Bochner, Biles, or Grana Claims was recommended by the same Crown Capital broker-dealer who recommended the Northpointe Towers investment to Bou-Sliman. Crown Capital's argument is unavailing.
It is undisputed that Crown Capital was aware of the Bou-Sliman Claim when Crown Capital applied for the Policy, for that claim was reported in the application. In connection with its affirmative response to question 9 of the application for the Policy, which question asked about claims made against Crown Capital within the previous five years, Crown Capital submitted to Endurance the Arch Specialty Insurance Company loss run report, which listed the Bou-Sliman Claim. The Bou-Sliman Claim notified Crown Capital of DBSI's bankruptcy. Like the Bou-Sliman Claim, the Bochner, Biles, and
Crown Capital was aware that DBSI had declared bankruptcy and allegedly had been operating a Ponzi scheme, that Bou-Sliman had claimed that Crown Capital had failed to exercise due diligence in connection with a DBSI investment, and that its broker-dealers had sold other DBSI investments to their customers — i.e., investments that were part of a Ponzi scheme that was the subject of a bankruptcy proceeding. Thus, Crown Capital was aware of facts and circumstances that might result in a claim or claims being made against it, which awareness it was required to disclose under question 10 of the application for the Policy. This requirement existed even though the Bochner, Biles, and Grana Claims did not involve the same investor or the same investment that was at issue in the Bou-Sliman Claim, and none of the investments at issue in the Bochner, Biles, or Grana Claims was recommended by the same Crown Capital dealer-broker who recommended the Northpointe Towers investment to Bou-Sliman. The Application Exclusion applied to claims that were the subject of required disclosure under question 10.
Crown Capital also contends that the language in the Application Exclusion "arising from any fact, circumstance, act, error or omission disclosed or required to be disclosed in response to" (boldface omitted) questions concerning claims or proceedings or any claim that might be made in the Application Exclusion is "ambiguous as it relates to the circumstances of this case and both parties' reasonable expectations of the policy." It contends that the "Distressed Investments" exclusion in the final version of the Policy excluded coverage for certain identified types of investments (investments related to Bernard L. Madoff, LandAmerica Financial Group, Inc., Stanford Financial Group and related entities) but not to DBSI investments, which had been listed in the exclusion in an earlier draft. Crown Capital argues that the trial court interpreted the "arising from" language broadly to allow Endurance to preclude from coverage future claims "merely because they might have some relation to DBSI, Inc." Crown Capital maintains that the trial court instead should have interpreted the "arising from" language narrowly to exclude from coverage only those claims that involved Bou-Sliman or his specific DBSI investment. Crown Capital argues that each claim involved a separate investment that did not "arise out of" the Bou-Sliman investment. The trial court did not err.
Relying on Waller v. Truck Ins. Exchange, supra, 11 Cal.4th 1, Crown Capital contends that even if Bochner, Biles, and Grana all claimed that Crown Capital failed to exercise due diligence in connection with the DBSI investments, the trial court nevertheless erred in granting summary adjudication because Bochner, Biles, and Grana asserted causes of action alleging conduct other than the failure to exercise due diligence — the subject of the Bou-Sliman Claim.
Although advancing various theories, all of the causes of action that Bochner, Biles, and Grana asserted in their claims against Crown Capital and its broker-dealers concerned the purchase of DBSI investments. At the time that Crown Capital applied for the Policy, it was aware of facts and circumstances that might result in a claim being made against Crown Capital — i.e., DBSI's bankruptcy, the alleged operation of a Ponzi scheme, and the investment by Crown Capital's customers in DBSI investments. The awareness of those potential claims brought such claims within the Application Exclusion regardless of the theory upon which such claims might be based. Accordingly, the trial court properly ruled that the entire Bochner, Biles, and Grana Claims, regardless of the theory of liability, were excluded from coverage under the Application Exclusion.
The judgment is affirmed. Defendant Endurance American Specialty Insurance Company is awarded its costs on appeal.
Kriegler, J., and Goodman, J.,