Filed 1/27/14 Springer v. GEICO General Ins. Co. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ROGER SPRINGER,                                                     D063017

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00059449-
                                                                     CU-IC-NC)
GEICO GENERAL INSURANCE
COMPANY et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline

M. Stern, Judge. Affirmed.

         Law Office of Carla DeDominicis and Spencer Guerena for Plaintiff and

Appellant.

         Konoske Akiyama & Brust, Gregory P. Konoske and D. Amy Akiyama for

Defendants and Respondents.


         Roger Springer was involved in an automobile collision with another driver who

was at fault for the accident. The other driver's insurer paid Springer in full for damages
to his vehicle and wrote the check jointly to Springer and his selected automobile repair

shop. However, the automobile shop failed to repair Springer's vehicle and wrongfully

kept the money. Springer then requested his own automobile insurer (Geico General

Insurance Company (Geico)) to pay him for the unrepaired damages to his vehicle.

Geico denied the claim on the basis that the policy did not cover losses for the automobile

shop's wrongful conduct and/or that the policy excluded the claimed losses.

          Springer then sued Geico and two related entities seeking a declaration of

coverage. After a brief trial based primarily on stipulated facts, the court found Springer

did not prove he was "entitled to coverage . . . under the terms of the subject policy of

insurance." The court thus entered judgment in defendants' favor. Springer appeals. We

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

          In April 2011, Geico issued an automobile insurance policy to Springer that

provided various types of insurance, including collision and comprehensive coverage.

The next month, Springer was involved in an automobile accident with Rasaura Laughlin.

Laughlin ran a red light and was at fault for the accident. Laughlin was insured by State

Farm Mutual Automobile Insurance Company (State Farm). Springer's vehicle, a 2008

Mustang, sustained property damage in the accident. Both Springer and Laughlin

reported the accident to their insurers.

          Springer did not request that Geico pay for the repairs (even though he knew he

had the right to do so), and instead submitted a claim solely to State Farm. State Farm

accepted liability, and offered to pay for the total cost of repairing Springer's Mustang.

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As required under applicable law, State Farm allowed Springer to choose his own

automobile repair shop, rather than use a State Farm recommended shop. (Ins. Code,

§ 758.5.) Springer selected Cafaro's Go Straight Auto Body (Cafaros) based on an

acquaintance's recommendation and a personal meeting with owner Michael Cafaro.

Neither State Farm nor Geico was involved in the selection process.

       On June 1, 2011, State Farm sent a letter to Springer advising him it had estimated

the damages to his vehicle and it would leave the estimate and payment at Cafaros

automobile repair shop. The letter stated in part:

           "This payment is based on a repair estimate using prices that are
           competitive in your market area. In the event additional damage is
           identified by the repairer you select, any amount previously paid will
           be taken into consideration as we determine any additional amounts
           owed. We will review and consider any supplemental amounts
           requested by you or the repairer you select, should additional loss-
           related damage become apparent. . . ."

The letter also stated Springer should "review the damage estimate that has been prepared

on your vehicle. If now or later, you or your selected repairer discovers additional loss-

related damage to your vehicle, please contact us at the number indicated below."

       Five days later, State Farm delivered a $15,155.84 check to Cafaros. The check

was written jointly to "CAFARO'S GO STRAIGHT & ROGER SPRINGER." Although

Springer did not sign the check, Mr. Cafaro endorsed the check and deposited the check

in his account the next day. Before depositing the check, Mr. Cafaro "asked and

received" Springer's "verbal authority to cash [the] check so repairs could commence."

(Italics added.)



                                             3
       Cafaros began the repairs but never completed them despite repeated demands by

Springer. The completed repairs had a value of $2,705.41. Cafaros has refused to return

any of the funds for work that was not completed. The estimate of the additional

necessary repairs is $12,450.43. Springer's unrepaired vehicle is now in "some lot in

Oceanside" and is no longer in Cafaros's possession.

       In September 2011, Springer's counsel made a written demand that Geico

indemnify Springer for the losses to his vehicle. Springer sought coverage under the

policy's collision coverage provisions based on facts showing his vehicle was damaged

by a collision with another vehicle and his vehicle remains unrepaired. Springer also

sought coverage under the policy's comprehensive coverage provisions based on facts

that he suffered damages caused by "acts of theft committed by an auto body repair shop

that is depriving [him] of possession of his vehicle . . . ." He stated that Cafaros has

"absconded with the money State Farm paid for the repair of [his] vehicle, and left the

Mustang to languish in disrepair." (Italics added.)

       One month later, Geico sent Springer a written denial of his claim. Geico stated

"[t]he 'loss' did not occur as a result of the accident [and instead] 'the loss' is a result of

the breach of contract between Mr. Cafaro and Mr. Springer." Geico also identified

Exclusion 14, which states "There is no coverage for any liability assumed under any

contract or agreement." Geico stated: "Mr. Springer had a contract with [Cafaros] the

body shop of Mr. Springer's choice. We are unable to [provide] coverage in regards to

the dispute between Mr. Springer and Mr. Cafaro in regards to their contract on repairing

Mr. Springer's vehicle."

                                                4
       The next month, Springer filed a superior court complaint for declaratory relief

seeking an order that Geico and related entities are responsible for paying to repair his

vehicle under the policy's collision coverage and/or comprehensive coverage.

       The parties waived a jury and the case was tried primarily on stipulated facts (set

forth above). Springer additionally testified to the following. He stated that he has

reported Mr. Cafaro's conduct to police and regulatory agencies, but he has been

unsuccessful in getting his car repaired or his money returned. He agreed that Cafaros

stole his money and that Mr. Cafaro is a "crook." Springer said that when Mr. Cafaro

attempted to deposit the check in his bank account, the bank called him to obtain his

approval, and that he gave his verbal approval that the State Farm check could be

deposited into Cafaro's account, but he had "no idea" of the check amount.

       At trial, Springer's counsel asked him, "Because of the actions of Michael Cafaro,

you have been denied the use of your vehicle; is that right?" Springer responded "Yes."

Springer also said he understood that he could have initially sought coverage under his

own policy, but he elected to instead seek coverage from Laughlin's insurer, State Farm.

       At the conclusion of the evidence, both parties moved for nonsuit. The court

stated that it would take the motions under submission and gave the parties the

opportunity to argue the case in the event the nonsuit motions were denied.

       Three days later, the court issued its written ruling in defendants' favor. The ruling

stated: "The court, after trial lasting less than 90 minutes . . . considered the evidence in

this case and denie[d] both parties' motions for 'nonsuit.' In addition, the court finds



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plaintiff is not entitled to coverage in this instance under the terms of the subject policy of

insurance."

                                       DISCUSSION

                                I. General Legal Principles

       "An insurance policy is written in two parts: the insuring agreement defin[ing] the

type of risks which are covered," and the exclusions that "remove coverage for certain

risks which are initially within the insuring clause." (Collin v. American Empire Ins. Co.

(1994) 21 Cal.App.4th 787, 802-803.) A court first " 'examine[s] the coverage provisions

to determine whether a claim falls within the potential ambit of the insurance.' " (Id. at p.

803.) The burden is on "the insured to bring the claim within the basic scope of

coverage, and . . . courts will not indulge in a forced construction of the policy's insuring

clause to bring a claim within the policy's coverage." (Ibid.) "Once the insured has made

that showing, the burden is on the insurer to prove the claim is specifically excluded."

(MRI Healthcare Center of Glendale, Inc. v. State Farm General Ins. Co. (2010) 187

Cal.App.4th 766, 777.)

       " ' "While insurance contracts have special features, they are still contracts to

which the ordinary rules of contractual interpretation apply." ' " (Haynes v. Farmers Ins.

Exchange (2004) 32 Cal.4th 1198, 1204.) "Interpretation of an insurance policy is a

question of law and follows the general rules of contract interpretation." (TIG Ins. Co. of

Michigan v. Homestore, Inc. (2006) 137 Cal.App.4th 749, 755.) "The rules governing

policy interpretation require us to look first to the language of the contract in order to

ascertain its plain meaning or the meaning a layperson would ordinarily attach to it."

                                              6
(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 (Waller).) The mutual

intention of the parties governs the interpretation of the policy, which is "inferred, if

possible, solely from the written provisions of the contract." (Ibid.) " 'The "clear and

explicit" meaning of these provisions, interpreted in their "ordinary and popular sense,"

unless "used by the parties in a technical sense or a special meaning is given to them by

usage," . . . controls judicial interpretation . . . .' " (Ibid.)

       "Absent a factual dispute, the interpretation of an insurance contract and its

application to undisputed facts are questions of law that we review de novo. [Citation.]"

(Westrec Marina Management, Inc. v. Arrowood Indemnity Co. (2008) 163 Cal.App.4th

1387, 1391.)

                                            II. Analysis

       Springer contends the court erred in determining his claimed losses were not

covered under the collision and comprehensive coverage provisions of his Geico

insurance policy and/or determining that an exclusion applied.

                                      A. Collision Coverage

       Under the policy's collision coverage provisions, Geico agreed to "pay for

collision loss to the owned auto or non-owned auto for the amount of each loss less the

applicable deductible." " 'Loss' " is defined to mean "direct and accidental loss or

damage to: [¶] (a) an insured auto, including its equipment . . . ." A " 'Collision' " means

loss caused by upset of the covered auto or its collision with another object, including an

attached vehicle." The term "upset" in this context generally means the vehicle

overturned or lost "equilibrium" and "proceed[ed] beyond the power of those in charge to

                                                  7
stop it." (Lombardi, Cal. Automobile Insurance Law Guide (Cont.Ed.Bar 2d ed. 2012)

§ 7.12, p. 196.)

       Springer submitted an insurance claim to Geico for the costs to complete the

repairs on his vehicle, despite receiving full payment for the repairs from State Farm. As

explained below, these costs did not result from a covered collision loss as these terms

are defined in the policy.

       The claimed damage (the vehicle's unrepaired condition) was not the result of a

physical "collision" between vehicles or an "upset" of Springer's vehicle. State Farm

fully compensated Springer for the damages caused by the collision, and Springer

approved the bank depositing these funds in Cafaros's account for the repairs. The fact

that Springer's vehicle remained unrepaired after receiving this full compensation

resulted from Cafaros's alleged wrongful conduct, and not the collision. As Springer

acknowledges, "Cafaro stole" his money, and it was "[b]ecause of the actions of Michael

Cafaro, [that he has] been denied the use of [his] vehicle . . . ."

       In the proceedings below, Springer's counsel argued that Springer's current

damages (the loss of the funds provided to him by State Farm) were covered losses under

Geico's collision coverage because the collision with State Farm's insured "set everything

in motion" and "[i]f there hadn't been a collision, . . . [Springer's] car would be happily

rolling down the streets . . . ." In his appellate brief, Springer similarly argues that he is

entitled to coverage because the collision was the triggering cause of his current losses.

       This argument is unsupported by the policy language and by California law

regarding causation in the first party insurance context.

                                               8
       First, the Geico policy provides that " 'Loss' means direct and accidental loss of or

damages to" the insured's vehicle. (Italics added.) The trial court had a substantial basis

to find the direct cause of Springer's current claimed loss was Cafaros's conduct and not

the collision.

       Additionally, Insurance Code section 530 states: "An insurer is liable for a loss of

which a peril insured against was the proximate cause, although a peril not contemplated

by the contract may have been a remote cause of the loss; but he is not liable for a loss of

which the peril insured against was only a remote cause." (Italics added.) This statute

codifies the efficient proximate cause doctrine applicable to first party insurance, under

which if there is more than one cause for a loss, coverage turns on whether the efficient

proximate cause of the loss—the " 'predominat[ing] cause' "—is a covered peril. (Julian

v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 750 (Julian); see Garvey v.

State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 401-404.) "The efficient

proximate cause of a loss is the 'predominant' or 'most important' cause of the loss."

(Freedman v. State Farm Ins. Co. (2009) 173 Cal.App.4th 957, 961; Roberts v.

Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1409.) "By focusing the causal

inquiry on the most important cause of a loss, the efficient proximate cause doctrine

creates a 'workable rule of coverage that provides a fair result within the reasonable

expectations of both the insured and the insurer.' " (Julian, supra, 35 Cal.4th at p. 754.)

If the asserted cause of the loss does not meet this test, it is a " 'remote cause' " and does

not trigger coverage. (Id. at p. 750.) " 'Remote' causes are irrelevant in the causation



                                               9
analysis." (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group

2013) ¶ 6:135.2, p. 6A-32.)

      Here, although the collision may have set the events in motion, the collision was

remote to the claimed damages and was not the efficient proximate cause of the loss.

Once State Farm agreed to completely cover the loss and wrote the check to Springer for

the estimated damages in full (with the promise to pay additional funds if needed to

complete the repairs), and Springer accepted the funds and agreed to allow the repair

shop to cash the check for his benefit, the accident was no longer the predominate or

most important cause of the vehicle's unrepaired condition. Instead, this condition was

the direct result of Cafaros's presumed breach of contract. The accident merely furnished

the condition or occasion for Cafaros's breach and was unrelated to the primary cause of

the damages.

      Springer argues that his car would never have been at Cafaros's repair shop if there

had been no accident and therefore the accident was a cause of the losses. This "but for"

or "triggering" theory is insufficient to show coverage under California law. (See Garvey

v. State Farm Fire & Casualty Co., supra, 48 Cal.3d at pp. 403-404; Roberts v.

Assurance Co. of America, supra, 163 Cal.App.4th at p. 1409.)




                                           10
       Our conclusion that there is no coverage under the collision provisions of Geico's

policy is further compelled by the policy's contractual subrogation clause.1 Under the

subrogation provision, Geico has the right to seek reimbursement from the wrongdoer

and the insured must cooperate to allow Geico to enforce this right. However, a

conclusion that Geico's policy requires it to make a duplicate payment for the automobile

repair costs because of a third party's breach of contract would bar Geico from enforcing

this subrogation right. Because State Farm already paid in full for the damages, Geico

would not be entitled to obtain reimbursement from the at-fault driver or her insurer.

       Relying on Sapiano v. Williamsburg National Insurance Company (1994) 28

Cal.App.4th 533, Springer argues this result is irrelevant because an insurer's subrogation

rights are always dependent on the insured's right to be made whole. The argument is

unavailing. Springer was made whole. Springer concedes State Farm paid his damages

in full, and it was merely the conduct of a third party occurring after he was made whole

that caused him to suffer continuing damages.

       In this regard, Sapiano arose in a very different context. In Sapiano, the insured

(Sapiano) had total property losses of at least $20,000. (Sapiano, supra, 28 Cal.App.4th

at p. 535.) He received the maximum policy limit from his insurer ($14,500), and then



1       The policy's subrogation clause states: "When payment is made under this policy,
we will be subrogated to all the insured's rights of recovery against others. The insured
will help us to enforce these rights. The insured will do nothing after loss to prejudice
these rights. [¶] This means we will have the right to sue for or otherwise recover the
loss from anyone else who may be held responsible."
                                            11
sued the wrongdoer (without his insurer's involvement) and received $10,000 in a

settlement for the property damage claim. (Id. at p. 536.) Sapiano's insurer then sought

to recover the entire $10,000 settlement from Sapiano under the insurer's subrogation

rights. (Ibid.) The appellate court held the insurer was not entitled to this recovery,

relying on the general rule that until the creditor has been made whole for the loss, the

subrogee may not enforce its claims based on its subrogation rights. (Id. at pp. 536-538.)

The court emphasized that the insurer did not participate in the lawsuit and instead "sat

back without assisting" its insured and then "demanded all the proceeds for itself." (Id. at

p. 539.)

       In this case, Springer received the funds from State Farm to fully repair his

vehicle, and State Farm agreed to pay additional amounts if the damages were found to

be more than the estimate. Thus, unlike the insured in Sapiano, Springer was provided

full recovery for the damage to his car. In this situation, preserving Geico's contractual

subrogation rights does not conflict with Springer's right to be made whole.

                               B. Comprehensive Coverage

       Springer alternatively contends he was entitled to coverage under the

comprehensive coverage provisions of Geico's insurance policy. The relevant provision

of the policy states:

           "We will pay for each loss, less the applicable deductible, caused
           other than by collision to the owned or non-owned auto. This
           includes glass breakage and loss caused by:




                                             12
              (a) missiles;                             (j) hail;
              (b) falling                               (k) water;
              objects;                                  (l) flood;
              (c) fire;                                 (m) malicious mischief;
              (d) lightning;                            (n) vandalism;
              (e) theft;                                (o) riot;
              (f) larceny;                              (p) civil commotion; or
              (g) explosion;                            (q) colliding with a bird or
              (h) earthquake;                               animal."
              (i) windstorm;

Springer argues his losses were caused by the perils identified in (e) and (f) (theft and

larceny) because Cafaros promised to repair Springer's vehicle and deposited the State

Farm insurance money without any intention of fixing Springer's vehicle.

       The argument is without merit. Springer's insurance policy covers "loss . . . to the

owned auto" caused by theft or larceny, not the loss of funds related to the repair of the

vehicle. Under its plain meaning, a "theft" or a "larceny" means the wrongful taking and

carrying away of personal property with the intent to deprive the owner of this property

permanently or for an extended period. (See Barnett v. State Farm General Ins. Co.

(2011) 200 Cal.App.4th 536, 543-545; Pen. Code, § 484; Webster's 11th Collegiate Dict.

(2006) pp. 701, 1295.) Springer did not proffer any evidence showing Cafaros obtained

the vehicle wrongfully or without Springer's consent, or intended to deprive Springer of

the property. To the contrary, the undisputed facts showed Springer voluntarily gave the

vehicle to Cafaros for the repair, and the car is no longer in Cafaros's custody or control.

Cafaros accepted money to perform a service that it failed to perform. The loss resulting

from these actions did not arise from a third party's unlawfully taking or stealing the

insured's vehicle. Rather, the loss arose out of Cafaros's failure to fulfill its contractual


                                              13
obligation. The undisputed evidence shows the vehicle remains available to Springer

(although not in a repaired state).

       Springer does not cite to any relevant legal authority supporting that Cafaros's

conduct constitutes "theft" or "larceny" of the vehicle as those terms are commonly

understood in California. Instead, he relies only on Riley v. Mid-Century Insurance

Exchange (1981) 118 Cal.App.3d 195, which is inapposite. In Riley, the insured had

purchased a stolen vehicle, but she had purchased the car in good faith and had no reason

to suspect it was stolen property. (Id. at p. 197.) Shortly after the insured's purchase, the

vehicle was stolen from the insured's driveway. (Ibid.) The insured made a claim under

her automobile insurance policy, and the insurer denied the claim. The insurer conceded

the theft of the vehicle from the insured was a covered loss under the policy terms, but

argued the insured had no insurable interest because the vehicle had been previously

stolen. (Ibid.) The reviewing court rejected this argument, reasoning that an innocent

purchaser for value has an interest in the vehicle against all but the lawful owner. (Id. at

pp. 197-200.)

       Riley's holding is of no help to Springer. Although Springer had an insurable

interest in his vehicle, unlike the incident in Riley where a car was taken from the

insured's driveway without her knowledge or consent, Cafaros did not steal the vehicle

from Springer or remove it from his possession through larceny. Although Cafaros may

have improperly taken Springer's money, Springer did not show Cafaros's actions

constituted a theft or larceny of the vehicle.



                                                 14
                              C. Contract Liability Exclusion

       Because the evidence compels the conclusion that the loss is not a covered loss

under the comprehensive or collision policy provisions, we need not reach Geico's

alternative arguments that coverage fell within the contractual liability exclusion

(Exclusion No. 14). That exclusion provides: "There is no coverage for any liability

assumed under any contract or agreement."

       Springer argues Exclusion No. 14 is the sole basis upon which we can affirm the

judgment because it is the only ground set forth in Geico's denial letter. This argument is

not factually supported. The denial letter identifies Exclusion No. 14, but also referred to

the policy definition of a " 'Loss' " and stated there was no coverage because "[t]he 'loss'

did not occur as a result of the accident." (Italics added.)

       Further, the fact that an insurer does not identify a particular ground for denying a

claim in a denial letter does not necessarily preclude the insurer from asserting the claim

at trial. (Waller, supra, 11 Cal.4th at pp. 31-34.) Instead, waiver is a factual issue, and

the party seeking to establish waiver must prove " 'by clear and convincing evidence' "

the intentional relinquishment of a known right. (Id. at p. 31.) Likewise, an insurer is

estopped from relying on a defense that was not included in the denial letter only if the

insured proves it detrimentally relied on the insurer's failure to assert the defense. (Id. at

pp. 32, 34.)

       There was an ample basis for the court to conclude that Springer did not meet his

burden to show waiver or estoppel. There are no facts showing Geico intended to

relinquish its rights to assert the argument that the claimed losses did not come within the

                                              15
insuring language of the policy. Moreover, although Springer now says that he "relied

upon the singularity of that basis [Exclusion 14] in pursuing this claim against Geico,"

he does not cite to any relevant evidence in the record supporting this assertion.

                                      DISPOSITION

       Judgment is affirmed. Appellant to bear respondents' costs on appeal.



                                                                     HALLER, Acting P. J.

WE CONCUR:



                  MCDONALD, J.



                         IRION, J.




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