Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CC08086
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
ARONSON, J.
It is ordered that the opinion filed herein on March 30, 2009, be modified as follows:
On page 13, delete the first full paragraph, commencing with, “Here, PSIC concedes for purposes of our review,” and replace it with the following paragraphs:
Here, PSIC concedes for purposes of our review the efficient proximate cause of the Roulands’ loss was a leaking sewer pipe. As noted above, Durkin concluded underground corrosion caused the sewer pipe to leak. Accordingly, the fact that earth movement and water damage occurred in the chain of causation does not mean the loss is excluded under the policy.
PSIC asserts viewing the corrosion as a conceptually separate cause runs afoul of Roberts v. Assurance Company of America, supra, 163 Cal.App.4th 1398, recently decided by another panel of our court. We disagree. In Roberts, the plaintiff purchased a residential lot on a steep slope. After construction began on plaintiff’s home, a landslide occurred, resulting in the ultimate destruction of the partially finished dwelling. The engineer hired to investigate the cause of the landslide concluded that placement of fill on the property during construction activated an underlying ancient landslide. The engineer also concluded heavy rain was a secondary immediate cause of the landslide. (Id. at p. 1401.) The defendant insurer denied coverage for the damage under an earth movement exclusion. After the trial court granted summary judgment for the insurer, the plaintiff argued on appeal the efficient proximate cause of the loss was concealment of the ancient landslide by the developer. The panel in Roberts disagreed, holding the concealment of the ancient landslide is not a conceptually distinct peril from the landslide itself. The court explained, “[c]oncealment by the developer was not a separate cause for the loss, but merely a separate explanation for the single cause of the loss, i.e., earth movement.” (Id. at p. 1410.)
In reaching this conclusion, Roberts relied on Finn v. Continental Ins. Co. (1990) 218 Cal.App.3d 69, in which water leaking from a broken sewer piper caused foundation damage to the insured’s home. The appellate court in Finn upheld the insurer’s denial of coverage based on an exclusion for seepage or leakage from a pipe, holding the efficient predominating cause analysis did not apply because the leakage and the broken pipe were not two distinct or separate perils. The court reasoned: “The Sabella analysis has no application here because leakage and broken pipes are not two distinct or separate perils. In Sabella, and in the cases applying it, the two perils were conceptually distinct: that is, they could each, under some circumstances, have occurred independently of the other and caused damage. [Citations.] In the present case there are not two conceptually distinct perils. Leakage or seepage cannot occur without a rupture or incomplete joining of the pipes. This case involved not multiple causes but only one, a leaking pipe.” (Finn, at p. 72.)
The present case is distinguishable from both Roberts and Finn. Hidden decay of the sewer pipe and the landslide are conceptually distinct perils, not simply different labels attached to the same peril. In other words, the landslide could have occurred independently from the failure of the sewer pipe. PSIC attempts to cloud the issue by arguing the corrosion of the sewer pipe is not conceptually different from leaks in the pipe. Although this statement might be true, it is not germane to the present case. Unlike Finn, the excluded peril of leakage from a plumbing system does not apply here because, as we determined above, under the present policy the excluded peril of leakage from a plumbing system applies only to Coverage A, and not collapse, which is an item of Additional Coverages. We therefore conclude the Roulands raised a triable issue of fact regarding coverage, and reverse the trial court’s grant of summary judgment
This modification does not change the judgment. The petition for rehearing is DENIED.
WE CONCUR: RYLAARSDAM, ACTING, P. J., IKOLA, J.