Opinion
D040139.
7-14-2003
CHARLES POPE et al., Plaintiffs, Cross-defendants and Appellants, v. CHICAGO INSURANCE COMPANY, Defendant, Cross-complainant and Respondent; GREG HARRIS, Cross-Defendant and Appellant.
Appellant Charles Pope, an accountant, was insured by respondent Chicago Insurance Co. (CIC) under two professional liability insurance policies. The first policy covered claims made in 1998 (the 1998 policy) and the second covered claims made in 1999 (the 1999 policy). Mr. Harris filed a lawsuit against Pope in 1998 (the Gillette claim) and another lawsuit against Pope in 1999 (the Losse claim), both alleging Pope, as Harriss accountant, breached his professional and fiduciary obligations to Harris by not informing him that an investment advisor (Mr. Gillette) and an orthopedic surgeon (Dr. Losse) had financial interests in Harriss sports agent. The sports agent recommended that Harris employ Gillette as his investment advisor, and later recommended that Harris employ Losse as his surgeon, and Harris suffered damages as the result of employing these individuals. Harriss claims against Pope alleged Harris would not have used the services of Gillette or Losse if Pope had disclosed their relationship with the sports agent.
Pope filed this declaratory relief action against CIC, seeking a determination of coverage for the Losse claim under the 1999 policy. The dispositive issue is whether CIC was correct that because the Gillette claim and Losse claim were related they constituted a single claim under the 1998 policy, or whether Pope was correct that they constituted two claims, one each under the 1998 and the 1999 policies. The trial court found the Gillette claim and Losse claim were related and therefore constituted a single claim under the 1998 policy and granted CICs motion for summary judgment. Pope appeals.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Insurance
Pope was insured under two consecutive accountants professional liability insurance policies issued by CIC, both of which were "claims made" policies. The 1998 policy covered claims made between February 9, 1998, and February 9, 1999, and the 1999 policy covered claims made between February 9, 1999 and February 9, 2000.
The relevant provisions in both policies are identical. CIC agreed to defend and indemnify Pope, up to the policy limits of $ 2 million for "each claim" and $ 4 million "aggregate" of claims filed, as to ". . . Claims first made . . . during the Policy Period . . . arising out of any act, error, [or] omission . . . in the rendering of or failure to render Professional Services. . . ." The critical policy language, contained among the policy provisions governing CICs limits of liability, provides that:
"All Claims arising out of the same or related act, error, [or] omission . . . shall be considered a single Claim for the purpose of this insurance and shall be subject to the same limit of liability."
The policy contains similar language governing when related claims are deemed made by providing, under the heading "WHEN A CLAIM IS DEEMED AS FIRST MADE," that "all Claims arising out of the same or related act, error, [or] omission . . . shall be considered as having been made at the time the first such Claim is made, and shall be subject to the same limit of liability and deductible."
B. Harriss 1998 Gillette Claim
In mid-1998 Harris filed the Gillette claim against Pope, asserting professional negligence in connection with losses sustained as a result of Harriss relationship with Gillette. The Gillette claim asserted that Harris, a professional baseball pitcher, employed Professional Excellence In Sports, Inc. (Pro Ex) as his sports agent from 1988 through 1997. In 1992 Pro Ex referred Harris to Gillette, an investment counselor, to whom Harris entrusted substantial funds for investment purposes. Gillette converted, misappropriated and lost a substantial portion of those funds.
In his claim against Pope, Harris alleged Pope was employed by Pro Ex as an internal accountant between 1991 and 1992, discovered Gillette was an investor in Pro Ex, and also learned of business irregularities and discrepancies in the accounting methods used by Gillette. Although Pope later entered a fiduciary relationship with Harris in late 1993 or early 1994, initially as accountant for entities in which Gillette and Harris were co-investors and later in Popes capacity as Harriss personal accountant, Pope did not tell Harris of the Gillette/Pro Ex relationship, or about Gillettes business irregularities and accounting discrepancies.
C. Harriss 1999 Losse Claim
In November 1999 Harris filed the Losse claim against Pope, asserting Pope was liable for injuries sustained as a result of Harriss relationship with Losse. The Losse claim bore similarities to the Gillette claim to the extent that it alleged Harris employed Pro Ex as his sports agent from 1988 through 1997, Pope was aware that Losse was an investor in Pro Ex, and Pope did not tell Harris about the Losse/Pro Ex relationship.
The gravamen of the Losse claim was that Harris developed a problem with his right shoulder in 1995, Pro Ex referred Harris to Losse for evaluation and surgery, and because Harris was unaware of the Losse/Pro Ex relationship, he did not independently investigate Losses competence or qualifications as a surgeon or obtain a second opinion concerning Losses diagnosis, recommendations or proposed course of treatment. Instead, Harris accepted his agents referral and employed Losse to diagnose and treat his shoulder, and Losses negligent diagnosis and treatment of Harriss shoulder caused a premature end to Harriss pitching career. Harriss Losse claim alleged that because Pope concealed the investment/referral relationship between Losse and Pro Ex, Harris was induced to use Losse, Harriss career as a major league pitcher ended and he lost in excess of $ 1,000,000.
D. The Coverage Litigation
Pope tendered defense of the Gillette claim to CIC in November 1998, and CIC accepted the tender under the terms and conditions of the 1998 policy. Pope tendered defense of the Losse claim to CIC in late 1999. However, CIC asserted the Losse claim arose out of the same or related act, error, or omission as the Gillette claim, and was therefore subject to the single "per claim" limits under the 1998 policy and did not trigger coverage under the 1999 policy. Pope then filed this action seeking a declaration that CIC owed defense and indemnity obligations for the Losse claim under the 1999 policy. CIC then cross-complained against Pope, and named Harris as an additional cross-defendant, seeking a declaration that the Losse claim arose out of the same or related acts as the Gillette claim, and therefore CIC owed no defense or indemnity obligations for the Losse claim under the 1999 policy.
Pope moved for summary judgment, arguing that because the 1999 policy was a claims made policy and the Losse claim was filed while the 1999 policy was in effect, and involved a claim for injuries distinct from the injuries asserted in the Gillette claim, they were different claims triggering different policy coverages. Pope alternatively argued that, insofar as the CIC policy sought to limit its coverage obligations for multiple claims by amalgamating distinct claims into a single claim for claims "arising out of the same or related act, error, [or] omission," that language was ambiguous and should be construed against CIC. The trial court denied Popes motion, ruling that the "related acts" clause was not ambiguous and the two claims arose out of the same or related act, error, or omission for purposes of amalgamating the claims into the "single claim" limitations of the policy.
CIC then moved for summary judgment on its cross-complaint and the trial court, based on the same conclusions and rationale, entered summary judgment in favor of CIC and against Pope and Harris. Pope and Harris appealed.
II
ANALYSIS
A. General Principles
The interpretation of the meaning of an insurance policy and the scope of coverage are questions of law. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) Because the relevant facts appear undisputed, and the only issue is the legal question involving construction of the policy and the application of its provisions to the claims asserted by Harris, we review the trial courts ruling de novo. (Maxconn Inc. v. Truck Ins. Exchange (1999) 74 Cal.App.4th 1267, 1272.)
An insurance policy, like all contracts, is to be interpreted to effectuate the mutual intent of the parties. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821, 274 Cal. Rptr. 820, 799 P.2d 1253.) Where possible, we must look solely to the terms of the policy, and the clear and explicit meaning of the policy terms (understood in their ordinary and popular sense) will govern our interpretation. (Id. at p. 822.) If a policy is ambiguous (i.e. susceptible of more than one reasonable interpretation), the ambiguity is construed in favor of coverage. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 912, 226 Cal. Rptr. 558, 718 P.2d 920.) However, the predicate to interpreting ambiguities in favor of coverage is that the policy be reasonably susceptible of more than one interpretation. If a policy clearly excludes coverage, we will not indulge in fanciful constructions to divine some theoretical ambiguity to find coverage. (City of Laguna Beach v. Mead Reinsurance Corp. (1990) 226 Cal. App. 3d 822, 830-831, 276 Cal. Rptr. 438.) An insurer is entitled to limit its coverage to defined risks, and if it does so in clear language, we will not impose coverage where none was intended. (Titan Corp. v. Aetna Casualty & Surety Co. (1994) 22 Cal.App.4th 457, 469.)
However, an exclusion or limitation on coverage must be clearly stated and will be strictly construed against the insurer. If an exclusion is ambiguous because capable of two or more reasonable constructions, the ambiguity will be resolved against the insurer and in favor of coverage. (Castro v. Firemans Fund American Life Ins. Co. (1988) 206 Cal. App. 3d 1114, 1119, 253 Cal. Rptr. 833.) The determination of whether a contract is ambiguous is subject to independent review by this court. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165; Schrillo Co. v. Hartford Accident & Indemnity Co. (1986) 181 Cal. App. 3d 766, 775-776, 226 Cal. Rptr. 717 [whether a clause is ambiguous, and whether an insured has an objectively reasonable expectation of coverage in light of the insuring language, are questions of law.)
B. Bay Cities: Single Claim or Multiple Claims Issue
Both parties assert that the Supreme Courts decision in Bay Cities Paving & Grading, Inc. v. Lawyers Mutual Ins. Co. (1993) 5 Cal.4th 854, 855 P.2d 1263 (Bay Cities) provides the most relevant framework for resolving the issues in this case. In Bay Cities, a general contractor brought a professional malpractice action against its attorney, alleging the attorney committed malpractice by not serving a stop notice on a projects construction lenders and by not filing a complaint to foreclose a mechanics lien on the project. These errors resulted in the contractor being unable to collect the amount it was owed on the project. The attorneys professional liability insurance policy was a claims made policy that limited coverage to a maximum of $ 250,000 "for each claim." It further provided that two or more claims "arising out of" a single act or a series of "related" acts were to be treated as a single claim. The trial court ruled, and the Court of Appeal concluded, that each of the errors gave rise to a separate claim under the policy, and the two claims were not "related" within the meaning of the policy. (Id. at pp. 857-859.)
The Bay Cities court, reversing the Court of Appeal, divided its analysis into two components. The first issue was whether the attorneys two omissions gave rise to one claim or two claims under the policys $ 250,000 per claim limit. The Bay Cities court held there was only one claim asserted against the attorney, reasoning that the contractor had one primary right—the right to be free of negligence by its attorney in connection with the particular debt collection for which he was retained—and although the attorney breached that right in two ways, it nevertheless remained a single right. (Bay Cities, supra, 5 Cal.4th at p. 860.) As the Bay Cities court explained, "[the contractor] suffered a single injury as a result of its attorneys [two] omissions-the inability to collect the amount owed . . . . [P] . . . [P] . . . When, as in this case, a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained-there is a single claim under the attorneys professional liability insurance policy." (Id. at pp. 860-861, original italics.) As Bay Cities later stated, " the effect is singular; one debt was lost to the detriment of one client. " (Id. at p. 865.)
Bay Cities found there was one claim because the insureds negligence caused a single injury to the insureds client, rather than causing distinct injuries or increasing the single injury sustained. Although this conclusion is sensible and reasonable on the facts examined by Bay Cities, it has little application to our facts. Here, Harris alleged two distinct species of injury, one being the loss of funds caused by Gillettes malfeasance and the other being the physical injury caused by Dr. Losses medical malpractice. These injuries occurred at different times and were attributable to different malefactors. We conclude that, under Bay Cities, Harris has asserted two separate claims against Pope. (Accord, National Union Fire Ins. Co. v. Lynette C. (1994) 27 Cal.App.4th 1434, 1459-1465.)
We note that, on appeal, CIC does not argue Harriss claim for the financial injury inflicted by Gillettes misconduct and Harriss claim for personal injury inflicted by Losses malpractice were merely aspects of a single claim under a primary right analysis. Instead, CIC asserts only that Harriss two claims are properly amalgamated into a single claim because his distinct claims "[arose] out of the same or related act, error, [or] omission," within the meaning of the limits of liability provisions of the policies.
C. Bay Cities: Related Claims Issue
The second component of the Bay Cities analysis was whether, assuming the contractor did have two claims against the insured, the policys per-claim limitation nevertheless applied because of the "related claims" language of the policy. The Court of Appeal found the term "related" to be ambiguous because it was undefined by the policy and then construed the term to encompass only those claims causally related to each other. The Bay Cities court first rejected the notion that the absence of policy definitions by itself renders the term ambiguous. It instead emphasized the interpretative rules that words should be interpreted in their ordinary and popular sense, ambiguity exists only when a term is capable of two or more reasonable interpretations, language of an insurance policy must be construed in the context of the policy and the facts of a particular case, and cannot be found ambiguous in the abstract. (Bay Cities, supra, 5 Cal.4th at pp. 866-867.)
The Bay Cities policy provided that, " Two or more claims arising out of a single act, error or omission or a series of related acts, errors or omissions shall be treated as a single claim. " (Bay Cities, supra, 5 Cal.4th at p. 866.) This language appears substantively indistinguishable from the language contained in CIC policy, and the parties do not contend the minor variation in the language is relevant to our analysis here.
The Bay Cities court, noting that a term can " shift between clarity and ambiguity with changes in the event at hand, " then considered whether the term "related" was "ambiguous in the context of this policy and the circumstances of this case." (Bay Cities, supra, 5 Cal.4th at pp. 868, original italics.) The Bay Cities court held the term was not ambiguous because the meaning advocated by the claimant—that only causally related acts could be related within the meaning of the per-claim limitation clause of the policy—was not reasonable. The Bay Cities court reasoned that such a construction was nonsensical because a single injury creates only one claim, regardless of whether that single injury was produced by one error or a series of causally related acts, and therefore the claimants interpretation would make the related acts limitation duplicative of the per-claim limitation when the injured party has suffered a single injury. (Id. at pp. 868-869.) The Bay Cities court concluded that, when there is only one defendant, one client, and one injury, the term "related acts" is not ambiguous but encompasses acts that are either logically or causally related rather than being restricted to only causally related acts. (Id. at pp. 872-873.)
However, the Bay Cities court, after quoting Gregory v. Home Ins. Co. (7th Cir. 1989) 876 F.2d 602, 606 for the proposition that "at some point, of course, a logical connection may be too tenuous reasonably to be called a relationship, and the rule of restrictive reading of broad language would come into play," concluded its analysis with an analogous cautionary note, stating:
"We do not suggest, however, that, in determining the amount of coverage, the term related would encompass every conceivable logical relationship. At some point, a relationship between two claims, though perhaps logical, might be so attenuated or unusual that an objectively reasonable insured could not have expected they would be treated as a single claim under the policy. In the present case, there is no attenuation or surprise to the insured. The two errors by the attorney are related in multiple respects. They arose out of the same specific transaction, the collection of a single debt. They arose as to the same client. They were committed by the same attorney. They resulted in the same injury, loss of the debt. No objectively reasonable insured under this policy could have expected that he would be entitled to coverage for two claims under the policy." (Bay Cities, supra, 5 Cal.4th at p. 873.)
Under the Bay Cities approach, we must resolve whether the term "related" is ambiguous in the context of this policy and the circumstances of this case. To do so we assess whether an objectively reasonable insured would expect that Harriss two separate injuries were sufficiently attenuated to be treated as separate claims or were instead sufficiently intertwined to be deemed to have arisen from the same or related act for purposes of amalgamating them into a single claim.
We conclude, in the context of the circumstances of this case, an objectively reasonable insured would expect that Harriss two separate injuries were sufficiently attenuated to be treated as separate claims not related within the meaning of the policies. First, the Gillette claim and Losse claim alleged Harris suffered distinct injuries (financial injury and physical injury) from the referral scheme allegedly concealed by Pope. These injuries also occurred at different times: Harris invested with Gillette between 1992 and 1997, but Harris suffered his physical injuries as the result of Losses malpractice in late 1995. Finally, Harriss injuries were attributable to different efficient causes: the physical injury was attributable to alleged medical malpractice by Losse, and the financial injuries were attributable to Gillettes alleged malfeasance.
Harris alleged that Losse misdiagnosed his injuries during October 1995 and, based thereon, recommended a relatively noninvasive arthroscopic procedure, but that when Losse actually operated in November 1995 he performed a more extensive procedure, and did not warn Harris of the potential future risks associated with that procedure.
Moreover, the nature of Popes alleged misfeasance, upon which Harris predicated the Gillette claim and Losse claim, was different. Although both claims allege Harriss sports agent (Pro Ex) had conflicts of interest when it referred Harris to Gillette and Losse because of their investments in Pro Ex, and Pope was aware of but did not disclose Gillettes and Losses interests in Pro Ex to Harris, the similarities end there. Harriss Losse claim predicates Popes liability almost exclusively on the allegation that Pope should have but did not tell Harris about the Losse/Pro Ex relationship. However, Harriss Gillette claim predicates Popes liability on additional allegations: that Pope had conflicts of interest when representing both Harris and Gillette, that Pope knew of (or should have discovered) Gillettes business irregularities and accounting discrepancies but did not reveal these discrepancies to Harris, and that Popes actions assisted Gillette to conceal Gillettes questionable business practices.
In addition to the separateness of the injuries and the differences in Popes conduct on which each claim is predicated, the timing of the claims also provide an objectively reasonable insured with the expectation the Losse claim would be covered under the 1999 policy. Pope was not insured under an "occurrence" based policy, which determines coverage based on the time the negligence or injury occurred, but instead purchased "claims made" coverage, which fixes coverage based on the date the claim is made. In Homestead Ins. Co. v. American Empire Surplus Lines Ins. Co. (1996) 44 Cal.App.4th 1297, two insurers issued one-year "claims made" policies to the insured during consecutive years, and one action was filed against the insured during each of the policy periods. The first action alleged fraud and negligence in connection with the sale of a specific property on Valderas Drive; the second action alleged similar misconduct as to numerous sales, including the sale of the Valderas Drive property. (Id. at pp. 1301-1302.) The insurer on the second policy asserted that the first policy should cover the claims arising from the second action because it was related to the first one. The court rejected that argument and instead held that the first insurer had no duty to defend the insured under a "claims made" policy against a complaint arising after the policy period ended, notwithstanding the second insurers assertion that the complaint was related to a claim arising during the first insurers initial period of coverage. The court, noting that this argument would "stretch the tail" of the first insurers policy to include a claim made against the insured during the second policy period, rejected the argument because "lengthening the policy tail . . . is the very thing claims made coverage exists to prevent." (Id . at p. 1305.) The court held the definition of "claim" in the first policy ("claims arising out of the same act or out of a series of interrelated acts shall be . . . treated as a single claim") remained subordinate to, and did not vary, the requirement in the policy that the first insurer agreed to pay for loss from claims made against the insured "during the policy period," and to be covered by the policy, a claim—or a group or series of claims "treated as a single claim"—still had to have been made during the policy period. (Id. at pp. 1303-1306.)
We recognize Homestead Ins. Co. contained policy provisions that differ from those contained in the present policies, and is thus not legally dispositive. However, Homestead Ins. Co. reinforces our conclusion that an objectively reasonable insured could expect that, when insured under a "claims made" policy and a third party asserts two claims distinct in the injury asserted (as well as in the time and efficient cause of the injury and the character of the underlying acts by the insured), the policy in effect when the insured first learns of the claim is the policy that provides coverage for that claim.
CIC, noting that the policy provides that claims "arising out of . . . related acts" shall be considered a single claim, asserts that the term "arising out of" is construed to "broadly [link] a factual situation with the event creating liability, and [connote] only a minimal causal connection or incidental relationship." (Acceptance Ins. Co. v. Syufy Enterprises (1999) 69 Cal.App.4th 321, 328; see also Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 503; Hartford Accident & Indem. Co. v. Civil Service Employees Ins. Co. (1973) 33 Cal. App. 3d 26, 32-33, 108 Cal. Rptr. 737.) These cases, asserts CIC, demonstrate that the clause amalgamating separate claims into a single claim requires only a minimal or incidental relationship between the facts giving rise to the Gillette and Losse claims to treat them as a single claim. However, the "arising out of" clauses these courts broadly construed were coverage clauses rather than exclusionary clauses that are strictly construed against the insurer. More significantly, importing a standard of a "minimal causal connection or incidental relationship" for assessing relatedness appears inconsistent with Bay Cities caution that "at some point, a relationship between two claims, though perhaps logical, might be so attenuated or unusual" (Bay Cities, supra, 5 Cal.4th at p. 873) that it would be inappropriate to treat them as a single claim under the policy.
In Century Transit Systems, Inc. v. American Empire Surplus Lines Ins. Co. (1996) 42 Cal.App.4th 121, cited by CIC, the court did evaluate an exclusionary clause, but that clause excluded coverage for claims "based on assault and battery," which the court found to be clear and to bar coverage for the claim asserted in that case. (Id. at pp. 126-127.) The Century Transit Systems, Inc. court had no occasion to consider an exclusionary clause, such as this one, in which the clause "arising out of" modified the term "related" acts.
CIC argues that Bay Cities permits an insurer to amalgamate separate claims into a single claim under a "related acts" provision as long as there is some logical relationship between the acts on which the claims are based. CIC asserts such a relationship exists here because Harriss injuries, although different in kind, are each logically related to Popes conduct in connection with the investment/referral scheme involving Pro Ex, Gillette and Losse. Although Harriss claims may at some level of abstraction be characterized as involving the same or related conduct by Pope, we do not interpret Bay Cities as permitting the amalgamation of distinct claims into a single claim where the actionable conduct by the insured is distinct in time, character and impact, and shares only broad and generic similarities.
CIC relies on Gregory v. Home Ins. Co., supra, 876 F.2d 602 and Continental Cas. Co. v. Wendt (11th Cir. 2000) 205 F.3d 1258 to support its assertion that Harriss claims, although asserting different injuries, arise from conduct by Pope that is sufficiently related to properly allow Harriss claims to be treated as a single claim. In Gregory, the client hired the insured (an attorney) to create an integrated package of legal instruments for a videotape investment program that the client would market to investors; among the components of the program structured by the attorney was an opinion letter advising that the videotapes were not securities required to be registered and buyers would reap tax advantages from investing in the videotapes. Both aspects of this opinion were erroneous, and the issue was whether the separate claims for injury by the buyers (the tax consequences) and the client (the securities laws infractions) were "related." (Gregory, at pp. 603-605.) The court concluded that because all of the errors were clearly "interdependent components of a single plan," the resulting injuries "comfortably fit within the commonly accepted definition" of related claims. (Id. pp. 605-606.) Although Gregory shows the fact that distinct injuries are involved does not preclude the claims from being "related," the reason the claims were held to be related in Gregory was that all of the injuries sprang from a single interdependent set of acts by the insured. The actionable conduct by Pope here cannot be characterized as a single interdependent set of acts, but instead involves conduct linked almost exclusively by the fact that Pope maintained a multi-year relationship with the actors involved. (Cf. National Union Ins. Co. of Pittsburgh, Pa. v. Holmes & Graven (D.C. Minn. 1998) 23 F. Supp. 2d 1057, 1070 [claims held not related because commonalities among claims were limited to acts by same attorney in context of a single commercial venture while differences among claims included distinct injuries and distinct causes of injuries to clients].) Accordingly, Gregory is not dispositive to our evaluation of whether the Gillette and Losse claims can be characterized as related.
We view Continental Casualty Co. v. Wendt, supra, 205 F.3d 1258 to be similarly distinguishable. There, the insured (Hall) was an attorney, and his wrongful conduct was his promotion of the sale of notes as legal securities between 1994 and 1995 through various avenues, his legal opinion as to their legality was erroneous, and the numerous buyers each suffered distinct injuries. The court held the claims were properly treated as a single claim under the policy, reasoning:
"It is clear that Halls course of conduct encouraged investment in the . . . notes. Though clearly this course of conduct involved different types of acts, these acts were tied together because all were aimed at a single particular goal. The fact that these acts resulted in a number of different harms to different persons, who may have different types of causes of action against Hall[,] does not render the wrongful acts themselves to be unrelated for the purposes of the insurance contract. Rather, they comprised a single course of conduct designed to promote investment in [the notes]. It is this same course of conduct [that] serves as the basis for both the Cowan and Wendt litigation. The conduct at issue in both cases was arguably the same and at the very least related in any common sense understanding of the word." (Id. at p. 1264, italics added.)
We agree with Continental Casualtys observation that the injuries to all the claimants in that case were the product of the same program of conduct, aimed at achieving a single particularized goal, the achievement of which produced the same injury replicated numerous times. Under those facts, we agree with the determination that the claims were properly amalgamated under the "same or related act" clause. However, Bay Cities admonishes that "relatedness" must be assessed in the context of this policy and the circumstances of this case, and because the claims here (unlike those considered in Continental Casualty) involved different alleged misconduct producing distinct species of injuries and not aimed at achieving a single goal, Continental Casualty does not alter our conclusion.
We conclude that, because the claims involve injuries distinct in time, type and cause and assert misconduct by Pope significantly different and attenuated from each other, an objectively reasonable insured would expect the later claim to be covered under the policy in effect at the time the later claim was made. Accordingly, it was error to grant CICs summary judgment motion.
DISPOSITION
The judgment is reversed. Pope and Harris shall recover their costs on appeal.
WE CONCUR: BENKE, Acting P. J. and McCONNELL, J.