CITY OF POMONA v. EMPLOYERS SURPLUS LINES INS CO

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Court of Appeal, Second District, Division 5, California.

CITY OF POMONA, et al., Plaintiffs and Appellants, v. EMPLOYERS' SURPLUS LINES INS. CO., et al., Defendants and Respondents.

No. B032762.

Decided: March 17, 1992

Bradley C. Withers,Jeffrey L. Garland, Cotkin, Collins & Franscell, Santa Ana, for plaintiffs and appellants. Keesal, Young & Logan, Robert D. Feighner, E. Scott Douglas, Long Beach, Robert D. Conaway, Phelan, Jonathan F. Bank, Debra R. Puebla, Donald W. McCormick, Buchalter, Nemer, Fields & Younger, Los Angeles, Cummins & White, Marshall T. Hunt, Kent M. Bridwell, Nancy E. Raney, Santa Ana Heights, for defendants and respondents.

I. INTRODUCTION

This appeal is from summary judgments granted to five insurance companies on a complaint by the City of Pomona and several of its employees 1 (Pomona) for declaratory relief, breach of contract, breach of the implied covenant of good faith and fair dealing, and Insurance Code violations.   The lawsuit in this case involves the issues of the obligations of the insurance companies to defend Pomona in connection with a third party civil rights action (Dr. Gloria J. Romero, et. al v. The City of Pomona, et al., United States District Court, Central District of California, case no. 85–3359 JMI) filed against Pomona for an alleged unconstitutional at-large election system.

II. FACTUAL AND PROCEDURAL HISTORY

A. The Lawsuits

A number of Pomona's citizens filed the underlying action against Pomona on May 25, 1985.   The plaintiffs alleged that the existing at-large election system of electing members of the city council violated their civil rights in that the method unconstitutionally diluted the voting strengths of Hispanic and Black voters in the city.   Plaintiffs sought a judicial declaration that the at-large system violated “their rights secured by Section 2 of the Voting Rights Act of 1965, as amended, and by the Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.” 2  Plaintiffs, in that action, also sought to permanently enjoin Pomona from holding any elections under the at-large system.   They also requested the court to order Pomona to “effect a plan for the election of members of the Pomona City Council which provides Plaintiffs and those similarly situated with a remedy for the violation of their rights․”   Plaintiffs sought attorneys' fees and litigation expenses pursuant to 42 United States Code sections 1973 l, subdivision (e), and 1988 and “such other relief as may be just and equitable.” 3

In May 1986, a “Corrected Pre-trial Conference Order” was filed in the federal action in which the parties deemed established that the at-large system existed in Pomona since 1911.   The parties also pre-marked as evidence for the trial the city council's election results for elections between 1963 and 1985.   The parties also indicated that the remaining issues of fact left to be litigated at the trial included (but, were not limited to) the extent of and history of official discrimination in the city which affected the voting rights of minorities and the history of discrimination in the city which denied minorities equal access to the political process.   The “Corrected Pre-trial Conference Order” made no reference to any particular remedies which the plaintiffs were seeking.   Trial began on June 17, 1986.   United States District Court Judge James M. Ideman later dismissed the action on Pomona's motion pursuant to Federal Rules of Civil Procedure, rule 41(b) (28 U.S.C.).

In May 1986, Pomona filed the complaint in this action in Los Angeles Superior Court for declaratory relief, breach of contract, and negligence against a number of defendants including Employers' Surplus Lines Insurance Company (ESLIC), Employer's Reinsurance Corporation (ERC), Pacific Indemnity Company (Pacific), Harbor Insurance Company (Harbor), and Twin City Fire Insurance Company (Twin City).   The complaint named a number of other insurance companies as defendants;  however, none of them are parties to this appeal.   Pomona alleged that the insurance companies provided liability insurance coverage for the claims in the underlying federal court action and the carriers owed Pomona a duty to defend the underlying lawsuit as well as a duty to indemnify the city for expenses incurred in defending the civil rights action.   Pomona subsequently amended the complaint to assert causes of action for breach of the implied covenant of good faith and fair dealing and for breach of statutory duties.  (Ins.Code § 790.03, subd. (h).)  Because the policies' terms are different, we set forth in detail the relevant provisions of each contract.

1. The ESLIC Policies

ESLIC issued an “excess bodily injury and property damage combined single limit” policy (policy no. 505537) for the period February 1, 1963, to February 1, 1964.   The policy provided that ESLIC was obligated to “pay on behalf of [Pomona] all sums which [Pomona] shall become legally obligated to pay, or by final judgment be adjudged to pay, to any person or persons as damages [¶] (a) for bodily injury, including death at any time resulting therefrom ․ caused by accident occurring during the period mentioned in the Schedule and arising out of such hazards as are set forth in Item 4 of the Schedule and which are also covered by and defined in the policy/ies specified in the Schedule and issued by the ‘Primary Insurers' stated therein, ․”  The term accident was defined as “an accident or series of accidents arising out of one event or occurrence.”  “Ultimate net loss” was defined as “the amount payable in settlement of the liability of [Pomona] after making deductions for all recoveries and for other valid and collectible insurances, excepting however the policy/ies of the Primary and Underlying Excess Insurers, and shall exclude all expenses and Costs.”  “Costs” was defined as “interest accruing after entry of judgment, investigation, adjustment and legal expenses (excluding, however, all office expenses of [Pomona], all expenses for salaried employees of [Pomona] and general retainer fees for counsel normally paid by [Pomona] ).”  The word “occurrence” is “deemed to have the same meaning ․ as is attributed” to it in the primary insurance policies.   Although interpretation of the February 1, 1963, to February 1, 1964, ESLIC excess policy requires reference to primary insurance policies, they were not discussed in the ESLIC separate statement of undisputed facts pursuant to Code of Civil Procedure section 437c, subdivision (b).

ESLIC issued an umbrella policy (policy no. 507631) which was in force from February 1, 1964, to February 1, 1966.   The policy provided that ESLIC would “indemnify the insured for all sums which the insured shall be obligated to pay by reason of the liability imposed upon him by law or liability assumed by him under contract or agreement for damages, and expenses, all as included in the definition of ‘ultimate net loss,’ because of:  [¶] personal injuries, ․”  Personal injury was defined as “bodily injury, sickness or disease, mental injury, mental anguish, shock, disability, false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, discrimination, humiliation, invasion of right of privacy, libel, slander or defamation of character, including death at any time resulting therefrom.”  (Italics added.)  “Ultimate net loss” was defined as “the total sum which the insured, or any company as his insurer, or both, becomes legally obligated to pay as damages because of personal injury, ․ either through adjudication or compromise, and shall also include ․ all sums paid as ․ fees, charges and law costs, premiums on attachment or appeal bonds, interest on judgments, expenses for ․ lawyers, ․ and investigators and other persons, and for litigation, settlement, adjustment and investigation of claims and suits which are paid as a consequence of any occurrence covered hereunder․  [¶] The company shall not be liable for any expenses as aforesaid when payment of such expenses is included in other valid and collectible insurance.”   The term “occurrence” means “(a) an accident, or (b) an event, or continuous or repeated exposure to conditions, which unexpectedly results in personal injury, ․ during the policy period․”   The key language in the ESLIC policies appears in the umbrella policy which defines personal injury as “discrimination.”

2. The ERC policy

ERC issued “universal excess umbrella policy” number U–5214 effective February 1, 1967, through February 1, 1968.4  ERC was obligated “to indemnify the Insured for all sums which the insured shall be obligated to pay by reason of the liability [¶] (a) imposed upon the Insured by law, or [¶] (b) assumed under contract or agreement by the Named Insured and/or any officer, director, stockholder, partner or employee of the Named Insured, while acting in his capacity as such, for damages, direct or consequential and expenses, all as more fully defined by the term ‘ultimate net loss' on account of:  [¶] (1) personal injuries ․ caused by or arising out of each occurrence happening anywhere in the world.”   The term personal injury was defined as “bodily injury, mental injury, mental anguish, shock, sickness, disease, disability, false arrest, false imprisonment, wrongful eviction, detention, malicious prosecution, discrimination, humiliation;  also libel, slander or defamation of character or invasion of rights of privacy, except that which arises out of any advertising activities.”  (Italics added.)   In other words, just as in the ESLIC umbrella policy, personal injury in the ERC policy was defined in part as “discrimination.”   An “occurrence” was defined as “an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally results in personal injury ․ during the policy period.”  “Ultimate net loss” was “the total sum which the Insured, or any company as his insurer, or both, become obligated to pay by reason of personal injury, ․ either through adjudication or compromise, and shall also include hospital, medical and funeral charges and all sums paid as salaries, wages, compensation, fees, charges and law costs, premiums on attachment or appeal bonds, interest, expenses for doctors, lawyers, nurses and investigators and other persons, and for litigation, settlement, adjustment and investigation of claims and suits which are paid as a consequence of any occurrence covered hereunder, excluding only the salaries of the Insured's or of any underlying insurer's permanent employees.”

3. The Harbor policies

Harbor issued insurance policy number 121132, effective February 1, 1975, to February 1, 1976.   Under the terms of this policy, Harbor agreed “to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of liability imposed by law, ․ for damages:  (1) because of bodily injury, sickness or disease, including death at any time resulting therefrom and also including care and loss of services, sustained by any persons or persons, or (2) because of any other injury a person may suffer to his person, reputation, character or feelings, including but not limited to malpractice, false arrest, detention or imprisonment, malicious prosecution, libel, slander, defamation of character, invasion of privacy, wrongful eviction or wrongful entry.”   Under the errors or omissions liability provision, Harbor agreed to pay “all sums which [Pomona] shall become legally obligated to pay insofar as such coverage is not afforded under coverages ․ by reason of any negligent act, error or omission of the insured if such negligent act, error or omission is committed during the policy period and discovered during the policy period or within twenty-four months after termination of the policy.”   Harbor also agreed to defend Pomona against “any suit ․ seeking damages on account of such bodily injury․”   Harbor agreed “to pay all expenses incurred by the Company, all costs taxed against [Pomona] in any suit defended by the Company․”

Policy number 126317 provided that Harbor would “pay on behalf of [Pomona] all sums which [Pomona] shall become obligated to pay by reason of liability imposed by law, ․ for damages:  (1) because of bodily injury ․ or (2) ․ personal injury ․ caused by an occurrence.”   The errors and omissions liability provision stated that Harbor would pay “all sums which [Pomona] shall become legally obligated to pay, ․ on account of any claim for breach of duty made against [Pomona], caused by an occurrence․”   Occurrence was defined as “an accident, including continuous or repeated exposure to conditions, which results in injury to persons or damage to property during the policy period that is neither expected nor intended from the standpoint of the Insured.”   Bodily injury was defined to mean “bodily injury, sickness or disease sustained by any person which occurs during the Policy period․”   Personal injury was defined as “false arrest, detention or imprisonment, malicious prosecution, libel, slander, defamation, violation of right of privacy, ․”

4. The Pacific Policies

Pacific Indemnity Company issued two “California Public Entity Special Comprehensive Liability Polic[ies]” to Pomona.   Policy number LP 11462 which was in effect from February 1, 1971, to February 1, 1974, and policy number LP 11947 which provided coverage from February 1, 1974, to February 1, 1977.   Both policies contained the same language and provided that Pacific would pay “all sums which the insured shall become obligated to pay by reason of liability imposed by law, ․ for damages:  ․ because of bodily injury, sickness or disease, ․ or, any other injury a person may suffer to his person, reputation, character or feelings, including but not limited to malpractice, false arrest, detention or imprisonment, malicious prosecution, libel, slander, defamation of character, invasion of privacy, wrongful eviction or wrongful entry.”   The errors or omissions liability provision stated that Pacific was to pay “all sums which the insured shall become legally obligated to pay, insofar as such coverage is not afforded under coverages A ․, on account of any claim for breach of duty made against the insured by reason of any negligent act, error, or omission of the insured if such negligent act, error or omission is committed during the policy period and discovered during the policy period or within twenty-four months after termination of the policy.”   Pacific also agreed to “defend ․ any suit against [Pomona] claiming such damages, even if such suit is groundless, false or fraudulent․”

5. The Twin City policies

Twin City issued two policies to Pomona.   Policy number TXS 102750 provided for excess coverage and was in force from February 1, 1984, to February 1, 1985.   Pursuant to this policy, Twin City agreed to indemnify Pomona for “ultimate net loss in excess of underlying Insurance․”   The term occurrence is defined as “an accident or occurrence” as defined in the underlying insurance policy.  “Ultimate net loss” meant the “total of all sums which the insured, or any organization as its insurer, or both, shall become legally obligated to pay, whether by reason or adjudication or settlement because of an occurrence covered under the terms of the controlling underlying insurance policy and to which this policy applies:  but ‘ultimate net loss' shall not include (a) the amount of any reconvenes, salvages or other insurance (other than underlying insurance or insurance written specifically to apply in excess of this policy), whether collectible or not, or (b) costs.”

Policy number 72 ECS SN 0110 was effective August 1, 1983, to February 1, 1986.   Pursuant to this policy, Twin City agreed to “pay on behalf of [Pomona] ultimate net loss in excess of the self-insured retention all sums for which [Pomona] shall become legally obligated to pay as damages by reason of liability imposed by law, ․ because of:  ․ bodily injury, personal injury, ․ or errors or omissions injury, to which this insurance applies, caused by an occurrence.”  (Italics omitted.)   The policy then defined bodily injury as “bodily injury, sickness or disease sustained by any person which occurs during the policy period, ․”  Claims expenses were defined as “all expenses incurred by the Insured or the Company in the investigation, negotiation, arbitration, settlement and defense of any claim or suit, ․”  (Italics omitted.)   This policy, unlike policy number TXS 102750, defined the term “damages” to mean a “monetary judgment award or settlement but does not include fines or penalties or damages for which insurance is prohibited by law applicable to the construction of this policy.”  (Italics omitted.)   Errors or omissions injury was identified as “injury other than bodily injury, ․ or personal injury which results in damages claimed because of [Pomona's] rendering or failing to render services within the scope of [Pomona's] operations;  including but not limited to (1) discrimination, not committed by or at the direction of [Pomona], when insurance therefore is permitted by law, (2) false arrest or improper service of process and (3) violation of civil rights.”  (Italics added and omitted.)   Occurrence was defined the following fashion:  “[A]n accident, including continuous or repeated exposure to conditions, which results in bodily injury ․ neither expected nor intended from the standpoint of the insured and includes ․ with respect to errors or omissions injury or personal injury an offense described in the terms of this policy.”  (Italics omitted.)   Personal injury was defined as “injury arising out of one or more of the following offenses committed during the policy period in the conduct of [Pomona's] business:  (1) the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual's right of privacy, (2) false arrest, detention, or imprisonment, or malicious prosecution, (3) wrongful entry of eviction or other invasion of an individual's right of privacy, (4) humiliation, and (5) violation of property rights.”  “Ultimate net loss” was identified as “the total of the following amount arising with respect to ‘each occurrence’ to which this policy applies:  (1) all sums which the insured shall become legally obligated to pay as damages, in excess of the self-insured retention, whether by reason of adjudication or settlement because of bodily injury, errors or omissions injury, personal injury, or property damage.”  (Italics omitted.)   The separate statement filed on behalf of Twin Cities made no reference to any primary policies or whether the self-insured retention had been exhausted.

B. The Summary Judgment Motions

On August 24, 1987, ESLIC filed a motion for summary judgment which ERC subsequently joined by formal notice.   The insurance companies contended that they owed no duties to Pomona because their policies did not provide coverage for injunctive relief.   On September 4, 1987, Pomona filed a motion for “partial summary judgment” or, in the alternative for summary adjudication of issues against defendants.   Judge Theodore Piatt denied Pomona's motion and granted the ESLIC and ERC summary judgment motions finding that the plaintiffs' request, in the federal action, for injunctive relief did not encompass “damages” within the meaning of the insurance contracts which the court interpreted to be a prerequisite to the insurers' duties to defend Pomona in the underlying action.   Pomona filed a timely notice of appeal from the judgment.

In May 1988, defendants Harbor, Twin City, and Pacific moved for summary judgment contending that they had no duty to defend or indemnify Pomona.   Judge Thomas Nuss granted the summary judgment motions from which a timely notice of appeal was filed.

III. DISCUSSION

Although the parties have asserted numerous arguments concerning the merits of their various summary judgment motions, the primary issue in this case is whether, as a matter of law, the insurance policies unambiguously required that the federal civil rights suit seek “damages” meaning “compensation in money” before a duty arose to defend or indemnify Pomona for its costs and expenses associated with defending the underlying action.   Pomona claims that the two law and motion judges erroneously decided the coverage issues in favor of the insurance companies and, therefore, the judgment must be reversed.

A motion for summary judgment will be granted if the moving papers establish that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  The standard for appellate review of a summary judgment motion was set forth by our Supreme Court as follows:  “Summary judgment is a drastic measure that deprives the losing party of a trial on the merits.  [Citation.]   It should therefore be used with caution, so that it does not become a substitute for trial.  [Citation.]   The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed.  [Citation.]   Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.  [Citation.]  [¶] A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.  [Citation.]   To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial.”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   When insurance coverage is at issue in a case, the Court of Appeal has held:  “Where the underlying facts are not disputed, construction of an insurance policy presents a question of law.   The appellate court is not bound by the trial court's interpretation.   Rather, it must independently interpret the language of the insurance contract.  [Citation.]”  (Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 45, 261 Cal.Rptr. 273.)

 Pomona argues that the insurers were obligated to defend it based upon the terms of the insurance contracts.   Defendants on the other hand argue that there was no coverage under the language of the policies primarily because the form of the federal civil rights action was equitable in nature.   In resolving this dispute, this court must apply a number of well-established rules of construction.   First, the mutual intention of the parties at the time the contract is formed governs the contract (Civ.Code, § 1636), and, if possible, the intent is inferred solely from the written provisions of the contract.  (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821–822, 274 Cal.Rptr. 820, 799 P.2d 1253.)   Second, a court must read the policy as a layperson would read it and not as an attorney or an insurance expert would read it.  (Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 115, 95 Cal.Rptr. 513, 485 P.2d 1129.)   The words in the policy are 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’ [citation]․”  (AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at p. 822, 274 Cal.Rptr. 820, 799 P.2d 1253.)   If there is ambiguity in policy language, it is resolved against the insurer in favor of coverage.  (Ibid.)

 With respect to the duty to defend, the critical question is not whether the insurer is ultimately required to pay monies to the third party plaintiff.   Rather, resolution of the duty to defend question depends upon whether a potential for coverage existed at the time that the insured's defense must be commenced.  (State Farm Fire & Cas. Co. v. Superior Court (1987) 191 Cal.App.3d 74, 77, 236 Cal.Rptr. 216;  Jaffe v. Cranford Ins. Co. (1985) 168 Cal.App.3d 930, 934, 214 Cal.Rptr. 567.)   The duty to defend an insured is not necessarily coextensive with the duty to pay damages.  (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 271–272, 54 Cal.Rptr. 104, 419 P.2d 168.)   In Gray, the Supreme Court held:  “Since modern procedural rules focus on the facts of a case rather than the theory of recovery in the complaint, the duty to defend should be fixed by the facts which the insurer learns from the complaint, the insured, or other sources.   An insurer, therefore, bears a duty to defend its insured whenever it ascertains facts which give rise to the potential of liability under the policy.”  (Id. at pp. 276–277, 54 Cal.Rptr. 104, 419 P.2d 168.)   The appropriate rule was succinctly stated by retired Presiding Justice John Trotter as follows, “[W]here there is no possibility of coverage, there is no duty to defend.”  (State Farm Fire & Cas. Co. v. Superior Court, supra, 191 Cal.App.3d at p. 77, 236 Cal.Rptr. 216.)

 As stated above, because there are a number of policies involved in this action, resolution of most of the issues will require reference to the specific policies.   Common to all the policies, however, is the issue of whether the civil rights suit brought by residents of Pomona created a potential legal obligation to pay the defense costs.   The insurers argue that because the federal court action sought only equitable relief, there would have been no legal obligation to pay monies within the meaning of the policy.   However, this position lacks merit given the California Supreme Court's recent holding in AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at p. 825, 274 Cal.Rptr. 820, 799 P.2d 1253.  AIU Ins. Co. considered the question of whether insurance companies were required to provide coverage to a company for cleanup and other “response” costs incurred by injunctive and other forms of equitable relief pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act.  (42 U.S.C. § 9601 et seq.)   Our Supreme Court determined that “as a matter of plain meaning” the term “ ‘legally obligated’ ” encompassed injunctive relief where there were costs associated with compliance with injunctions such as cleaning up hazardous wastes.  (AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at pp. 824–825, 828–842, 274 Cal.Rptr. 820, 799 P.2d 1253.)   The court found that it was unreasonable to conclude that there was no coverage when the insurance policy did not unambiguously incorporate the law-equity distinction because:  (1) California has effectively abandoned the distinction between courts of law and courts of equity;  (2) when an insured is found liable in a federal action, the insured is obligated to pay whatever relief the court orders and;  (3) insurance coverage should not be denied on the basis of whether the complaint is framed in equity rather than in law.  (Id. at p. 825, 274 Cal.Rptr. 820, 799 P.2d 1253.)   For example, if the federal court had ordered Pomona to change from an at-large system of selecting councilpersons to one where voters in districts selected their own representatives to the city council, certain costs would have been incurred in drawing district lines and insuring equal voting strength in each district.   Such costs are similar to the “response costs” discussed in AIU Ins. Co., Id. at pp. 837–838, 274 Cal.Rptr. 820, 799 P.2d 1253.   Therefore, since Pomona would have been obligated to pay for whatever relief the federal court ordered, there would have been an “legal” obligation to pay.

Somewhat more complex is the question of whether the complaint encompassed “damages” within the meaning of the policies.   Pomona contends that the term unambiguously (1) included the expense of the civil rights action, (2) described the sums paid to comply with injunctive relief, (3) encompassed the civil rights plaintiffs' request for other and appropriate relief which could have included an award of nominal damages, and (4) covered the claim for attorneys' fees under 42 U.S.C. sections 1973l, subdivision (e), and 1988.   Alternatively, Pomona argues that to the extent that the term is ambiguous it must be construed against the insurers in favor of coverage.

Defendants, on the other hand, argue that the attorneys' fees are not “damages” within the meaning of their policies nor can they ever be “damages” where the complaint seeks only equitable relief.   The gist of the insurers' arguments is that the term “damages” as used in their policies unambiguously refers only to claims for traditional “monetary” relief as opposed to equitable forms of relief.   Relying upon Civil Code section 3281, the insurers claim that the statutory definition which refers only to “compensation” in money is the only reasonable interpretation of the term damages.  Civil Code section 3281 provides:  “Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”   To support their contention, the insurers rely upon a number of authorities that have drawn distinctions between legal and equitable actions and construed the term to preclude coverage for equitable as opposed to legal claims.  United Pacific Ins. Co. v. Hall (1988) 199 Cal.App.3d 551, 555–557, 245 Cal.Rptr. 99 [insured had no duty to pay for independent counsel for defense of homeowners' son because juvenile proceeding is not a suit for “damages”];  Hackethal v. National Casualty Co. (1987) 189 Cal.App.3d 1102, 1108–1110, 234 Cal.Rptr. 853 [no coverage for license revocation proceeding by Board of Medical Quality Assurance because no suit for “damages”];  Jaffe v. Cranford Ins. Co., supra, 168 Cal.App.3d at p. 935, 214 Cal.Rptr. 567 [no coverage for defense of criminal prosecution for Medi–Cal fraud];  Nationwide Ins. Co. v. King (S.D.Cal.1987) 673 F.Supp. 384, 385–387 [condominium owners not entitled to defense in injunctive relief action because no “damages” sought].

We disagree that the cases relied upon by the insurers control the disposition of this case as a matter of law.   First, all of the cases relied on by the insurers were decided before AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at pp. 825–828, 274 Cal.Rptr. 820, 799 P.2d 1253, where our Supreme Court held that a suit for equitable relief could in some cases result in “damages” within the meaning of a general liability insurance policy.   In AIU Ins. Co., our Supreme Court considered the question of whether the word “damages” which is not defined otherwise in a policy should be narrowly construed to preclude coverage for claims for costs and other equitable relief.  (Ibid.)  The court reviewed cases which urged narrow and broad interpretations of the term damages and found neither of the approaches acceptable.   Instead, the Supreme Court articulated a flexible application of the term damages as defined by statute (Civ.Code § 3281) and in dictionaries.5  The court noted that, while claims for injunctive relief did not easily fit within the statutory and dictionary definitions, under its flexible approach and guided by the principle that ambiguities were resolved against the insurers, the reasonable expectations of the insured required that the costs of complying with injunctive relief were damages within the meaning of the policies.  (Id. at pp. 841–842, 274 Cal.Rptr. 820, 799 P.2d 1253.)   In the present case, had the Pomona residents been successful in their suit, the at-large voting system would potentially have to be changed which could involve costs in determining how to divide the city into districts for city council voting purposes.

Second, the cases cited by the insurers relied upon a very narrow interpretation of the term “damages” which precluded claims for equitable relief.   As noted above, AIU Ins. Co. found this approach unacceptable under the circumstances of the case before it.   Third, the cases cited by the insurers did not consider the issue of whether the term “damages” was ambiguous in the context of the particular policies involved in this case.

Fourth, there was a potential for recovery of monies by the plaintiffs in the voting rights litigation in the form of nominal damages, attorneys fees, and costs.   To begin with, even if a civil rights plaintiff sustains no actual injury, a finding that a constitutional right has been violated under 42 U.S.C. section 1983 may entitle the plaintiff to “nominal damages.” 6  (Memphis Community School Dist. v. Stachura (1986) 477 U.S. 299, 308, fn. 11, 106 S.Ct. 2537, 2543, fn. 11, 91 L.Ed.2d 249;  Carey v. Piphus (1978) 435 U.S. 247, 266–267, 98 S.Ct. 1042, 1053–1054, 55 L.Ed.2d 252.)   In cases involving a complete violation of the right to vote, federal courts have held that it is presumed a plaintiff is entitled to a damage award.   (Memphis Community School Dist. v. Stachura, supra, 477 U.S. at p. 311, fn. 14, 106 S.Ct. at p. 2545, fn. 14;  Walje v. City of Winchester, KY. (6th Cir.1985) 773 F.2d 729, 731–732;  Wayne v. Venable (8th Cir.1919) 260 F. 64, 66.)   In other circumstances, federal courts have held nominal damages are available in actions filed pursuant to 42 U.S.C., section 1983 when there have been violations of various constitutional rights.  (Carey v. Piphus, supra, 435 U.S. at pp. 266–267, 98 S.Ct. at pp. 1053–1054 [nominal damages available when due process rights under Fourteenth Amendment violated];  Hohe v. Casey (3rd Cir.1992) 956 F.2d 399 [violation of free association rights under the First Amendment as interpreted in Keller v. State Bar of California (1990) 496 U.S. 1, 12–29, 110 S.Ct. 2228, 2231–2228, 110 L.Ed.2d 1, sufficient to permit award of nominal damages in the sum of $1.00 per aggrieved person];  Smith v. City of Chicago (7th Cir.1990) 913 F.2d 469, 472–474 [a Fourth Amendment violation can result in a nominal damage award].) 7

The argument of the insurers in the present case that the failure of the complaint in the voting rights action to seek nominal damages foreclosed their recovery is incorrect.   The relevant Ninth Circuit rule concerning a district court's authority to award damages when the complaint does not seek monetary relief was described in Z Channel Ltd. v. Home Box Office, Inc. (9th Cir.1991) 931 F.2d 1338, 1341.   In Z Channel Ltd., the plaintiff sought equitable relief in “Count One” of the complaint but did not seek damages.   The Ninth Circuit noted that the plaintiff could still seek damages when the court held:  “It is clear that [plaintiff] did not foreclose relief in damages by failing to ask for them in its Count One prayer.  ‘[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings.’   Fed.R.Civ.P. 54(c) (emphasis added);  see also Holt Civic Club v. City of Tuscaloosa [1978] 439 U.S. 60, 66, [99 S.Ct. 383, 387, 58 L.Ed.2d 292] (‘a meritorious claim will not be rejected for want of a prayer for appropriate relief.’);  Western District Council v. Louisiana Pacific Corp. [9th Cir.1989] 892 F.2d 1412, 1416–17 (holding case not moot because court could grant remedy of rescission even though plaintiff had not requested this remedy)․”  (Z Channel Ltd. v. Home Box Office, Inc., supra, 931 F.2d at p. 1341.)   In Sea–Land Service, Inc. v. Murrey & Son's Co. Inc. (9th Cir.1987) 824 F.2d 740, 745, the Court of Appeals determined that the plaintiff's failure to seek an award of attorney's fees in the complaint did not preclude the district court from granting such fees.   In other cases, federal Courts of Appeals have upheld damage awards when the prayer for relief neglected to seek damages but, as in the underlying civil rights complaint in the present case, sought “such other relief as may be just and equitable.”   (Liberty Nat. Ins. Holding Co. v. Charter Co. (11th Cir.1984) 734 F.2d 545, fn. 7, 548, fn. 24, 560, fn. 31 [a request for “ ‘such other and further relief as the Court may deem just and proper’ ” in a case to seek to compel a shareholder to divest itself of stock is sufficient to permit a damage award];  Crane Co. v. American Standard, Inc. (2nd Cir.1973) 490 F.2d 332, 340 [a prayer for relief seeking “for other and further relief” in a complaint which sought injunctive relief concerning a corporate transaction was adequate to permit the district court to enter a compensatory damage award].)  Given the scope of rule 54(c) of the Federal Rules of Civil Procedure (28 U.S.C.) and its construction by federal appellate courts, the absence of a request for compensatory damages in the complaint did not foreclose the possibility of nominal damages being awarded to the Pomona residents who challenged the at-large voting system in that city.

 An award of nominal damages as well as a grant of injunctive relief in an action brought pursuant to the Voting Rights Act of 1965 or 42 U.S.C. section 1983, could justify the imposition of both costs and attorneys' fees.  (Carey v. Piphus, supra, 435 U.S. at p. 257, fn. 11, 98 S.Ct. at p. 1049, fn. 11;  42 U.S.C. §§ 1973l, subd. (e), 1988.)   Contrary to the insurers' contentions, there is no clear authority which establishes that such an attorney fee and cost award cannot be damages within the meaning of any insurance policy.   Although there have been cases which have held that an award of attorney's fees was not “damages” within the meaning of a particular policy, (see e.g., Sullivan County, Tenn. v. Home Indem. Co. (6th Cir.1991) 925 F.2d 152, 153;  Board of Cty. Com'rs, etc. v. Guarantee Ins. Co. (D.Colo.1981) 90 F.R.D. 405, 407), it is clear that there is a dispute among authorities as to whether an “attorney fee” award under section 1988 can constitute damages which obligates an insurance company to defend or indemnify an insured in an action which seeks only equitable relief.  (City of Ypsilanti v. Appalachian Ins. Co. (E.D.Mich.1982) 547 F.Supp. 823, 827–828;  City of Kirtland v. Western World Ins. (1988) 43 Ohio App.3d 167, 540 N.E.2d 282, 285.)   In Sullivan County, Tenn. v. Home Indem. Co., supra, 925 F.2d at p. 153, the Court of Appeals held that an attorneys' fees award pursuant to title 42 United States Code section 1988 was not a sum which the insured became legally obligated to pay as “damages” because of the policy's specific limitations.   In Board of Cty. Com'rs, etc. v. Guarantee Ins. Co., supra, 90 F.R.D. at p. 407, the policy contained a definition for the term “damages” which the court found unambiguously did not include the claims raised in the underlying civil rights action.

In cases where the policies have not stated what the term “damages” means, courts have been less willing to relieve the insurers of their obligations under general rules of contract law.   For example, in City of Ypsilanti v. Appalachian Ins. Co., supra, 547 F.Supp. at pp. 827–828, which was cited in Sullivan but distinguished, the district court judge concluded that the amount paid in satisfaction of an attorneys' fee award in a civil rights action was covered by the term “damages” within the meaning of the insurance policy before it.   Given the ambiguous nature of the policy and the express contractual obligations, the court concluded:  “[A] reasonable person in the position of the Insured would believe that the words ‘all sums which the Insured shall become legally obligated to pay as damages' would provide coverage for all forms of civil liability, including attorney fees.  [Citations.]   It is reasonable to say that an attorney fee award in a civil rights suit is a form of ‘damage’ which the defendant contracted to cover.   It would have been simple enough to exclude attorney fee awards had the parties so intended.   Since they did not, and since an ambiguity remains, the ambiguity will be resolved against the Insurer.”  (Id. at p. 828.)   It has also been held that the attorneys' fees imposed pursuant to 42 U.S.C. section 1988 are covered in a civil rights action seeking equitable relief where the policy provided that “money damages” must be sought but the policy contained no definition for the term “money damages.”  (City of Kirtland v. Western World Ins., supra, 540 N.E.2d at p. 285.)   The relevant inquiries in these cases appears to be whether the insurer has unambiguously (1) defined the term “damages,” (2) excluded equitable forms of relief in its policies, or (3) obligated itself to pay expenses or costs.   If the insurance policy contains any material ambiguities related to these issues, the policies are construed in favor of coverage.

 With these standards in mind and the analysis appearing in the AIU Ins. Co. case, we now examine the particular policies at issue in this case to determine whether there is potential coverage concerning the claims at issue in the underlying civil rights suits brought by the Pomona residents.   First, in its umbrella policy, ESLIC 8 and ERC, in its universal umbrella excess policy, agreed to pay for all sums which Pomona became legally obligated to pay as damages and expenses as defined by ultimate net loss for personal injuries which included “discrimination.”   This includes a nominal damage award.   Both policies provide that ultimate net loss is the total sum which Pomona becomes legally obligated to pay as damages and also includes “all sums paid as ․ fees, charges and law costs, ․ expenses for ․ lawyers ․ and investigators and other persons, and for litigation, settlement, adjustment and investigation of claims and suits which are paid as a consequence of any occurrence․”   A reasonable interpretation of these policies could be that an insured would be indemnified in a discrimination action for all sums paid as fees, cost and expenses for lawyers including sums paid to defend an action which claimed discrimination as well as any assessed against the insured by the court without reference to a monetary versus an equitable claim.   Furthermore, neither policy contains a definition for the term “damages” which limits its application to a claim for “compensation in money.”   While “compensation in money” is a reasonable interpretation of the term, it is not the only interpretation.   A reasonable interpretation of the policies, as in the AIU Ins. Co. case, is that the insurer could be obligated to indemnify Pomona for costs incurred complying with an injunctive order to change the method of electing city council members.   Neither policy excludes claims for injunctive relief in discrimination actions.   If the insurers intended to exclude the costs of complying with a court order, they could easily have inserted such limitations and exclusions in their policies.   Having failed to do so, the insurers may not, as a matter of law, obtain the benefit of an ambiguous policy provision.

Even if the fees are not “damages” within the meaning of the policies, an additional reason exists for providing that the claims were covered under the relevant ESLIC and ERC policy provisions.   Both companies issued policies which provide that they will pay “expenses” in a discrimination action.   Their policies provide that they would indemnify the insured for “expense” for “ultimate net loss” which includes “all sums paid as ․ fees, charges and law cost, ․ expenses for lawyers․”   There is no indication from either of their policies that the expense must arise in an action seeking monetary as opposed to equitable relief.   Neither insurer argues that the claims were not discrimination claims within the meaning of their policies or that they would not have had to indemnify Pomona for its defense of the action if the claims were otherwise covered.   Therefore, given the ambiguous nature of the term “damages” as it is used in the policies and the language of the policies which obligated the insurers to pay damages and expenses in discrimination actions, there was potential coverage under the policies' terms.9

 Next, the Harbor and Pacific policies must be examined to determine whether they unambiguously contain no duties to defend or indemnify Pomona in the underlying action.   Both insurers agreed to pay for all sums which Pomona became obligated to pay by law for damages for bodily injury or other injury to a person.   In the errors and omissions liability provisions, and without reference to a claim for “damages,” they agreed to pay all sums that Pomona became legally obligated to pay for breach of duty “by reason of any negligent act, and, or omission.”   This definition could include nominal damages or the costs of complying with a federal court injunction.   In their supplementary payment provisions, they agreed to defend any suit for damages and to pay “all costs taxed against [Pomona].”  Neither of the policies contains a definition for the term “damages” nor do they distinguish between traditional monetary claims and equitable claims for injunctive relief.   The insurers did not exclude equitable forms of relief from their coverage nor did they indicate that no defense would be provided in an action where the plaintiffs chose to request equitable relief rather than monetary relief.   A reasonable person could easily interpret the policies to mean that the civil rights action against Pomona would be defended by the insurers.   Therefore, because the policies are ambiguous as to whether a defense would be provided, there was potential coverage.

 Under a primary comprehensive and general liability policy, Twin City agreed to pay for “ultimate net loss” which Pomona was legally obligated to pay as bodily injury, personal injury, or errors or omissions injury.   Errors or omissions is defined to include “discrimination” and “violation of civil rights.”   The primary policy, unlike any of the other policies at issue in this case contains a definition for the term “damages.”   It is defined as “a monetary judgment award․”   Although there is a definition for the term, there is no exclusion for expenses incurred in complying with a court order.   Also, there was the potentiality of a nominal damage award to the civil rights plaintiffs.   Accordingly, summary judgment was improperly entered in favor of Twin City.10

At oral argument, several of the insurers alleged that the costs of complying with injunctive relief in the underlying action would have been “prophylactic” in nature and, therefore, could not have been covered under the policy pursuant to AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at p. 841, 274 Cal.Rptr. 820, 799 P.2d 1253.   In AIU Ins. Co., the court noted that certain costs of complying with injunctive relief such as those “incurred to pay for measures taken in advance of any release of hazardous waste—are not incurred ‘because of property damage.’ ”  (Id. at p. 843, 274 Cal.Rptr. 820, 799 P.2d 1253.)   However, AIU Ins. Co. did not hold that all “costs” of complying with injunctions were “prophylactic” in nature thus precluding coverage for “damage” within the meaning of any insurance policy.   Instead, our Supreme Court held that while “some costs” of complying with the injunctions are “prophylactic” in nature, other costs of complying with injunctions such as those requiring “remedial and mitigative action” can result “in costs that constitute ‘damages' under CGL policies.”  (Ibid.)  Furthermore, the court expressly declined to follow the reasoning of cases which held that “injunctive relief” was “prophylactic” and, therefore, not “damages.”   The court concluded that the reasoning in those cases was not compelling in cases such as this where some costs of complying with the injunction could constitute damages (e.g., remedial and mitigative action) and where the injunctive relief sought was not “wholly prophylactic in nature.”  (Ibid.)  In this case, the insurers did not prove as a matter of law that all costs that Pomona might have incurred in complying with the potential injunction to correct alleged past discriminatory voting practices would have been “wholly prophylactic” in nature.

 In conclusion, we respectfully conclude the two very fine law and motion judges in this case, who issued their rulings before the AIU Ins. Co. decision was filed, erred in granting summary judgment on behalf of the insurers.   The insurers did not prove as a matter of law that the term “damages” as used in the policies unambiguously excluded coverage for the claims in the underlying action.11  We emphasize that summary judgment was improper, in this case, because the evidence submitted by the insurers' in support of the motions did not establish that there were no triable issues of material fact concerning their duties to defend Pomona.

IV. CONCLUSION

The summary judgments are reversed.   The City of Pomona, G. Stanton Salby, Vernon M. Wiegand, E.J. Gaulding, Donna Smith, and Mark Nymeyer shall each recover their costs on appeal jointly and severally from Employers' Surplus Lines Insurance Company, Employer's Reinsurance Corporation, Pacific Indemnity Company, Harbor Insurance Company, and Twin City Fire Insurance Company.

FOOTNOTES

1.   The Pomona employees named as plaintiffs in the present case were G. Stanton Salby, Vernon M. Wiegand, E.J. Gaulding, Donna Smith, and Mark Nymeyer.

2.   Section 2 of the Voting Rights Act of 1965 is codified as 42 United States Code section 1973, subdivision (a) and states, “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color․”  42 United States Code section 1983 provides:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ․, subjects, or causes to be subjected, any citizen of the United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress․”

3.   42 United States Code section 1973l, subdivision (e) provides, “In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment ․ the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.”  42 United States Code section 1988 states, “In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 U.S.C. §§ 1981–1983, 1985, 1986], ․ the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.”

4.   It is impossible to determine based on the evidence cited in its separate statement whether the ERC policy was a general liability policy or an excess policy.   Reference in the policy is made to underlying “Insurance”;  however, there is no evidence any primary policies were applicable to the civil rights lawsuit in the present case.   Further, the policy states that if there was no underlying insurance, ERC's liability for Pomona's “ultimate net loss” was $10,000.   As in the case of the ESLIC excess policy, the separate statement of undisputed facts filed on behalf of ERC does not make reference to any primary policies.

5.   The term “damages” is defined by Black's Law Dictionary (5th ed. (1979) pp. 351–352), as “a pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another ․   Damages may be compensatory or punitive according to whether they are awarded as the measure of actual loss suffered or as punishment for outrageous conduct and to deter future transgressions.   Nominal damages are awarded for the vindication of a right where no real loss or injury can be proved.”   The term is also defined as “compensation in money imposed by law for loss or injury.”  (Webster's New Collegiate Dict.(9th ed. 1986) p. 323.)   It is defined as “the estimated reparation in money for detriment or injury sustained:  compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right.”  (Webster's New International Dictionary (3d ed. 1989) p. 571.)

6.   Pomona does not argue in this appeal that the plaintiffs in the underlying lawsuit would have been entitled to compensatory damages and we do not address that issue.

7.   At oral argument, it was contended that the Pomona citizens who were plaintiffs waived their rights to nominal damages in the “Corrected Pretrial Conference Order.”   No such waiver occurred in that order.   In fact, the order never discusses with any specificity the question of what remedies the plaintiffs were seeking.   Also, the declaration of Phillip Trevino, counsel for the Pomona residents was filed by ESLIC and it indicates plaintiffs were seeking an attorney fee and cost award.   Although the goal of the litigation was directed at changing the at-large voting system, when Mr. Trevino's declaration is narrowly construed, as it must be, (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 373, 178 Cal.Rptr. 783, 636 P.2d 1121) it does not foreclose the possibility of a nominal damage award by the district court judge.   As will be noted in the body of this opinion, the trial judge retained the authority to grant nominal damages despite the language of the “Corrected Pretrial Conference Order” pursuant to rule 54(c), Federal Rules of Civil Procedure (28 U.S.C.).We do not mean to imply that a pretrial conference order issued pursuant to Federal Rules of Civil Procedure, rule 16 (28 U.S.C.) can never justify an insurance company in declining to conduct a defense.   The Ninth Circuit has emphasized the importance of enforcing pretrial conference orders issued pursuant to rule 16 of the federal civil rules.   (United States v. First Nat. Bank of Circle (9th Cir.1981) 652 F.2d 882, 886–887.)   However, rule 16 permits modification of the order to “prevent manifest injustice” (Fed.Rules Civ.Proc., rule 16(e), (28 U.S.C.).) and the pretrial conference order in the underlying federal lawsuit, by its very terms, did not rule out a nominal damage award.   Under these circumstances, the order did not preclude a nominal damage award as a matter of law.

8.   As noted previously (ante, at p. 913), the ESLIC excess policy definition of “occurrence” depends on the meaning of that term in underlying policies.   The failure to refer to the pertinent provisions of the underlying policies in the separate statement of undisputed facts (Code Civ.Proc., § 437c, subd. (b)) precludes the entry of a summary disposition concerning the scope of the duty to defend under the ESLIC excess policy under the facts of this case.   As the moving party, in a dispute involving coverage under an excess policy, ESLIC had the duty to prove as a matter of law it was entitled to judgment on all theories raised by the complaint.  (Denny's, Inc. v. Chicago Ins. Co. (1991) 234 Cal.App.3d 1786, 1789–1790, fn. 3, 286 Cal.Rptr. 507.)   In the present case, the terms of the underlying policies were essential to a determination of whether the ESLIC excess policy created a duty to defend and the failure to cite to the material language in the primary policies in the separate statement warranted denial of the summary judgment motion brought by ESLIC.  (Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1084, fn. 4, 1 Cal.Rptr.2d 215.)   This is not to say that a summary disposition can never be reached in this type of coverage litigation where the language in an underlying policy is essential to an understanding of the scope of the excess policy duty to defend.   An insurer defendant may be able to provide a copy of the underlying policy.   If the parties do not have access to the primary policy, an insurer defendant may be able to prove by means of discovery methods that the plaintiff insured cannot produce the underlying policy and, therefore, at the time of trial will be unable to prove its case.   However, no such evidence was present in this case.   The instant matter is therefore akin to situations as in Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 125–126, 81 Cal.Rptr. 444, where a defendant has failed to disprove, as a matter of law, a fact which the plaintiff would have to prove at the time of trial, e.g., there was coverage in the excess policy because of the terms of the primary insurance contract.

9.   ESLIC raises a number of defenses with respect to why there was no possible coverage in this case including:  (1) the scope of the Voting Rights Act of 1965, (2) the lack of a evidence of a discrimination action within its policy period, (3) the statute of limitations, (4) the doctrine of laches.   Most of the defenses, as pointed out by Pomona, involve disputed factual matters such as the applicability of the policy for an election that occurred during the policy period.ESLIC argues that there was no potential coverage because the plaintiffs in the underlying action, as private litigants, could not have enforced their voting rights prior to the Voting Rights Act of 1965.   The argument lacks merit since the federal action was not only brought pursuant to plaintiffs' rights under the Voting Rights Act of 1965 but also alleged violations of the Fourteenth and Fifteenth Amendments.   Furthermore, in 1969, the United States Supreme Court, in holding that private litigants had an implied right to bring an action under the Voting Rights Act, stated that, notwithstanding any enforcement rights under the Voting Rights Act of 1965, “the private litigant could always bring suit under the Fifteenth Amendment” to enforce their voting rights.  (Allen v. State Board of Elections (1969) 393 U.S. 544, 554, 556, fn. 21, 557, 89 S.Ct. 817, 825, 827, fn. 21, 22 L.Ed.2d 1;  see also Smith v. Allwright (1944) 321 U.S. 649, 661–666, 64 S.Ct. 757, 763–766, 88 L.Ed. 987 [private litigant allowed to bring action for damages under 8 U.S.C. section 43 (now section 42 U.S.C. section 1983) for violation of their voting rights under the Fifteenth Amendment];  Nixon v. Herndon (1927) 273 U.S. 536, 540–541, 47 S.Ct. 446, 446–447, 71 L.Ed. 759 [reversed judgment dismissing action for damages premised on a violation of the Fifteenth Amendment.] )   Moreover, ESLIC has erroneously relied upon a number of authorities (City of Rome v. United States (1980) 446 U.S. 156, 181–182, 100 S.Ct. 1548, 1563–1564, 64 L.Ed.2d 119, South Carolina v. Katzenbach (1966) 383 U.S. 301, 309, 86 S.Ct. 803, 808, 15 L.Ed.2d 769;  Olagues v. Russoniello (9th Cir.1985) 770 F.2d 791, 797 vacated 832 F.2d 131–132 (9th Cir.1987);  United States Commission on Civil Rights, The Voting Rights Act:  Unfullfilled Goals (Sept. 1981) pp. 4–9;  United States Commission on Civil Rights, The Voting Rights Act․   The First Months (1965) pp. 5–13, 47–48) to support its argument that the plaintiffs had no method to enforce their voting rights since the Voting Rights Act was not in existence at the time of the alleged discriminatory electoral process.   City of Rome, Katzenbach and the civil rights commission's reports merely point out that Congress enacted the Voting Rights Act because the suits under the Fifteenth Amendment were inadequate to secure the right to vote.  (Allen v. State Board of Elections, supra, 393 U.S. at p. 557, fn. 21, 89 S.Ct. at p. 827, fn. 21.)   Although Olagues v. Russoniello, supra, 770 F.2d at p. 805, held that a private litigant's remedies under section 5 of the Voting Rights Act of 1965, 42 U.S.C., section 1973c, were equitable in nature, the court also stated that private plaintiffs are entitled to bring an action for damages under 42 U.S.C. section 1983 as well as attorneys' fees under 42 U.S.C. section 1988 for violations of their voting rights.  (Ibid.)  Also, even if the Voting Rights Act of 1965 and subsequent amendments provided more specific rights and remedies, ESLIC has not established that a new form of liability would not have been covered under its policies.   In AIU Ins. Co., our Supreme Court has stated that when legislatures create entirely new forms of liability, “[t]he sole relevant inquiry in determining whether such types of liability are covered is whether, in view of the reasonable expectations of the insured, policy language can be interpreted to embrace the liability that may accrue under new statutory schemes.”  (AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d at p. 822, fn. 8, 274 Cal.Rptr. 820, 799 P.2d 1253.)   Therefore, neither ESLIC nor any other insurer are entitled to prevail on this theory.Finally, both ESLIC and ERC claim that they had no duties because they provided only excess liability insurance.   However, neither insurer proved that they were entitled to judgment as a matter of law on the issue or whether “other valid and collectible insurance” existed.   As noted previously, the evidence cited in the ERC separate statement is unclear as to whether the policy was an excess policy and, in any event, if there was no underlying insurance, ERC was obligated to pay up to $10,000 at the very least.

10.   As to the Twin City excess policy (no. TXS 102750), the scope of coverage depended on the underlying policies.   No evidence concerning the primary policy or policies were presented in the moving party's separate statement of undisputed facts.   Therefore, as in the case of the ESLIC excess policy, no summary disposition in the present case was appropriate given the absence of evidence concerning the terms of the primary policies.

11.   Pomona has requested that this court rule on its “partial summary judgment” motion.   Although an order denying summary judgment is nonappealable, it is reviewable on appeal from a final judgment.  (Code Civ.Proc. §§ 904.1, 906;  Lackner v. LaCroix (1979) 25 Cal.3d 747, 753, 159 Cal.Rptr. 693, 602 P.2d 393;  DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1397, fn. 2, 262 Cal.Rptr. 370.)   In this case, the trial court did not rule on Pomona's motion for “partial summary judgment.”   The court concluded that the summary judgment in favor of defendants ESLIC and ERC rendered Pomona's motion moot.   On remand, if Pomona still desires to have the matter ruled upon, the trial court may rule on the motion for “partial summary judgment” which is properly referred to as a summary issue adjudication motion (Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660, 674–675, 271 Cal.Rptr. 876) pursuant to the applicable law as it existed prior to the 1990 amendments to Code of Civil Procedure section 437c.  (Stats.1990 ch. 1561, § 1, No. 7 Deering's Adv.Legis.Serv. p. 6766.)   Additionally, the trial court may likewise rule on the ESLIC summary issue adjudication motion.

TURNER, Presiding Judge.

ASHBY and BOREN, JJ., concur.

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