Filed 2/3/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION TWO

LARRY HAERING,

Plaintiff and Appellant
,

v.

TOPA INSURANCE COMPANY

Defendant and Respondent. B260235
(Los Ang eles County Super. Ct. No. KC066356 )

APPEAL from a judgment of the Superior Court of Los Angeles County

. Robert A. Dukes, Judge. Affirmed.

Shernoff Bidart Echeverria Bentley, Michael J. Bidart, Ricardo Echeverria, and
Matthew W. Clark for Pla intiff and Appellant.

Selman Breitman, Alan B. Yuter and Rachel E. Hobbs for Defendant and Respondent.2

The issue presented in this appeal is whether an excess liability insurance policy that “follows form” to an underlying primary policy that provid es un insured
motorist /underinsured motorist (UM/UIM) c overage must also provide such coverage after the underlying poli cy limit has been exhausted. We hold that the excess policy does not provide coverage for first party UM/UIM c laims because the policy’s insuring agreement unambiguously limits the insurer’s indemnity obligation to third party liability
claims

. We therefore affirm the judgment entered in the excess insurer’s favor

. BACKGROUND Plaintiff and appellant Larry Haering (plaintiff) is the owner of California Fleet,
Inc. California Fleet was an insured under a primary insurance policy issued by State National Insurance Company, with a policy period of December 9, 2011 to December 9, 2012 (the State National p olicy). California Fleet was also an insured under an excess liability policy issued by Topa Insurance Company (Topa) , with a policy period from
Decemb er 9, 2011 to December 9, 2012 (the Topa policy). The Topa policy designates the State National policy as the underlying primary policy.
Sta te National p olicy The State National policy’s declarations page lists the types of coverage afforded under the policy and the applicable policy limits , including a $1 million each “Accident” “Garage Operations” limit, a $2 million “Garage Operations” agg regate limit, and a $1 million limit for UM/UIM coverage. The State National policy is modified by an endorsement that provides UM coverage as follows:

“ We will pay all sums the ‘ insured ’ is legally entitled to recover as compensatory damages from the own er or driver of an ‘uninsured motor vehicle

. ’ The damages must result from ‘ bodily injury ’ sustained by the

‘ insured ’ caused by an ‘ accident. ’ The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the

“ uninsured motor vehicle.”3

T opa policy
T he Topa policy’s insuring agreement provides in relevant part as follows:

“ 1. Excess Liability Indemnity

“ To indemnify the insured for the amount of loss which is in excess of the applicable limits of liability, w hether collectible or not, of the Underlying Insurance inserted in Item 6 1 of the Declarations, provided that this policy shall apply only to those coverages for which a limit of liability is inserted in Item 5 2 of the Declarations. If such scheduled Unde rlying Insurance contains a sub

- limit in a lesser amount than the scheduled limit, the Insurance afforded by this policy shall apply in the same manner it would have applied had the scheduled limit been maintained and not reduced by the sub

- limit. Provide d further that the limit of the Company’s liability under this policy shall not exceed the applicable amount inserted in Item 5 of the Declarations.

“ The provisions of the immediate underlying policy are incorporated as a part of this policy except for:

“ ( a) any obligation to investigate, defend, or pay for costs incident to the same;

“ (b) the amount of the limits of liability;

“ (c) any ‘ other insurance ’ provision, and

“ (d) any other provisions therein which are inconsistent with the provisions of this pol icy.

“ If the applicable coverage in the immediate underlying policy insures accidents rather than occurrences, then ‘ accident ’ is substituted for

‘ occurrence ’ in the applicable coverage of this policy. ”

The term “loss” is defined in the Topa policy as “the sum paid in settlement of losses for which the Insured is liable after making deduction for all recoveries, salvages or other insurance (ot her than recoveries under the policy of the Underlying Insurance) whether recoverable or not, and shall include all expenses and ‘ costs. ’” The term

1 Item 6 of the declarations page identifies the State National policy as the underlying insurance.

2 Item 5 of the declarations page specifies the limits of liability as $1 million for each occurrence and $1 million in the aggregate.4

“immediate underlying policy” is defined as the Underlying Insurance listed in I tem 6 of
the declarations.
The Topa policy excludes coverage for “any liability or obligation imposed on the
Insured under

. . . any unins ured motorists, underinsured motorists or automobile no

- fault or first party personal injury law.”
Plaintiff’s accident and tender to Topa On October 14, 2012, plaintiff was injured in a motor vehicle accident caused by a negligent driver who was an insur ed under a policy with a $25,000 liability limit. In February 2013, plaintiff settled his claim against the negligent driver by accepting the $25,000 limit under the driver’s p olicy. In May 2013, plaintiff submitted a claim to State
National and eventual ly recovered the policy limit under the $1 million uninsured motorist endorsement to the State National policy. 3 On July 23, 2013, plaintiff submitted a claim to Topa for $1 million in excess coverage. Plaintiff maintained that the Topa policy followed f orm to the State National policy and incorporated the $1 million UM/UIM endorsement. Topa denied cov erage for plaintiff’s claim on two principal grounds: (1) the policy’s insuring agreement limits coverage to third party liability claims, and (2) a polic y exclusion barred coverage for liability imposed under any UM/UIM law.
The instant lawsuit Plaintiff commenced the instant action on September 26, 2013, asserting causes of action against Topa for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory relief. After Topa answered, plaintiff filed a motion for summary adjudication of a single issue

-- whether the Topa policy obligated Topa to

3 Plaintiff recovered $975,000 under the State National policy, pursuant to the anti

stacking provisions of the State National uninsured motorist endorsement, and Insurance Code section 11580.2, subdivisio n (d), which permits a uninsured motorist insurance policy to require proration of the claim if the insured has insurance available under more than one uninsured motorist policy. (Ins. Code, §11580.2, subd. (d); Allstate Ins. Co. v. Mercury Ins. Co. (2007 ) 154 Cal.App.4th 1253.)5

provide UM/UIM coverage for injuries plaintiff sustained in the October 14, 201 2
accident. Following a July 14, 2014 hearing on plaintiff’s summary adjudication motion, the trial court denied the motion, ruling that the T opa policy covered only third party liability claims, and not a first party UM/UIM claim for benefits for injurie s sustained by
the insured. Plaintiff and T opa entered into a stipulation for entry of judgment, preserving plaintiff’s right to file the instant appeal. Judgment was entered in Topa’s favor, and this appeal followed.
DISCUSSION
I. Standard of review
T he standard of review for an order granting or denying a motion for summary adjudication is de novo. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 860.)
The trial court ’ s stated reasons for granting summary adjudication are not binding on the reviewing court, which reviews the trial court ’ s ruling, not its rationale. ( Kids’ Universe
v. In2Labs (2002) 95 Cal.App.4 th 870, 878.) II. Applicable legal principles A. Policy interpretation

“‘ Interpretation of an insurance policy is a question of l aw and follows the general rules of contract interpretation. [Citation.] “ The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give
effect to the ‘ mutual intention ’ of the parties. ‘ Under s tatutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interp retation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citati on.] The “ clear and explicit ” meaning of these provisions, interpreted in their “ ordinary and popular sense, ” unless “ used by the parties in a technical sense or a special meaning is given to them by usage ” [citation],

co ntrols judicial interpretation. [ Citation.] ’. . .

. ” [Citation.]’ [Citation.]” ( TRB Investments, Inc. v. Fireman’s Fund Ins. Co. (2006) 40 Cal.4 th 19, 27.) Policy provisions must be interpreted in context, giving effect to every part of the policy with “‘ each clause6

helping to interpr et the other. ’” ( Palmer v. Truck Ins. Exchange ( 1999 ) 21 Cal.4 th 1109 , 1115.) If the language of the policy is clear and explicit, it governs. ( Foster

- Gardner,
Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4 th 857, 868 ( Foster

- Gardner ) .) “‘“ A poli cy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. ” [Citations.] The fact that a term is not defined in the polic ies does not make it ambiguous. [Citations.] Nor does

“ [d]isagreement concerning the meaning of a phrase, ” or “‘ the fact that a word or phrase isolated from its context is susceptible of more than one meaning. ’” [Citation.]

“‘ [L]anguage in a contract must be construed in the context of that instrument as a whole,
and in t he circumstances of that case, and cannot be found to be ambiguous in the
abstract. ’” [Citation.]

. . . . ’ [Citation.]” ( Powerine Oil Co., Inc. v. Superior Court (200 5 ) 37 Cal.4 th 377, 390

- 391.) The insured bears the burden of bringing a claim within t he basic scope of coverage of a policy’s insuring agreement, and a court will not indulge a forced interpretation of the insuring agreement to bring a claim within the scope of its coverage. ( Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4 th 1, 16 ( Wa ller ).)
B. First party insurance distinguished from third party liability insurance The distinction between first party insurance and third party liability insurance is pertinent to our analysis. “[A] first party insurance policy provides cover age for loss or damage sustained directly by the insured

. . . . A third party liability policy, in contrast, provides coverage for liability of the insured to a ‘third party’

. . . . In the usual first party policy, the insurer promises to pay money to the insu red upon the happening of an event, the risk of which has been insured against. In the typical third party liability policy, the carrier assumes a contractual duty to pay judgments the insured becomes legally obligated to pay as damages because of bodily injury or property damage caused by the
insured. [Citation.] ” ( Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4 th 645, 663 ( Montrose ) .) When analyzing coverage under a third party liability policy, the7

focus is “on the insured’s legal obligat ion to pay for injury or damage

. . . . ” ( Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 407

- 408 ( Garvey ) .)
UM and UIM coverages “‘ are not “ third party ” coverages. They are strictly “ first party ” coverages because the insurer’s duty is to compensate its own insured for his or
her losses
, rather than to indemnify against liability claims from others. [Citation.]’ [Citation.]” ( Weston Reid, LLD v. American Ins. Group, Inc. (2009) 174 Cal.App.4 th 940, 950, quoting Croskey, et al., Cal. Pra ctice Guide: Insurance Litigation ( The Rutter Group 2008 ) ¶ 6:2095, p. 6G

- 1 1 .) C. UM/UIM coverage Insurance Code section 11580.2 requires insurance policies that cover the ownership, maintenance, or use of any motor vehicle to provide coverage for dama ges caused by an uninsured or underinsured vehicle. (Ins. Code, § 11580.2.) “Section
11580.2 mandates two separate types of coverage

-- UM and UIM coverage

. UM coverage requires the insurer to pay its insured, up to specified limits, damages for bodily injury or wrongful death the insured would be entitled to recover from the owner or operator of an uninsured motor vehicle. [Citation.] UIM coverage allows an insured to
recover from his or her own insurer the difference between the amount of the insured ’ s own underinsured motorist policy limits and whatever is available from the negligent
driver ’ s liability insurance. [Citations.]” ( Dau n v. USAA Cas. Ins. Co. (2005) 125 Cal.App.4 th 599, 606.) The statutory requirement for UM/UIM coverage does not appl y, however, to excess insurance policies. (Ins. Code, § 11580.2, subd. (a)(1); Furlough v. Transamerica
Ins. Co. (1988) 203 Cal.App.3d 40, 47 [“neither statutory nor decisional law requires that
insurance furnished on an umbrella or excess basis include u ninsured motorist coverage”].) D. Primary insurance and excess insurance The distinction between primary insurance coverage and excess insurance coverage is also pertinent to our analysis. Primary insurance provides immediate coverage upon the happenin g of an occurrence that gives rise to liability. ( Century Surety8

Co. v. United Pacific Ins. Co. (2003) 109 Cal.App.4 th 1246, 1255.) Excess insurance provides coverage after a predetermined amount of primary coverage has been exhausted. ( Ibid. ) A “follo wing form” excess policy incorporates by reference the terms and conditions of the underlying primary policy. ( Coca Cola Bottling Co. v. Columbia Casualty Ins. Co. (1992) 11 Cal.App.4 th 1176, 1182 ( Coca Cola ) .) A following form excess policy generally wi ll contain the same basic provisions as the underlying policy, with the exception of those provisions that are inconsistent with the excess policy. (Seaman & Kittridge, Excess Liability Insurance: Law and Litigation (1997) 32 Tort & Ins. L.J. 653, 658.) Any inconsistency or conflict between the provisions of a following form excess policy and the provisions of an underlying primary policy is resolved by applying the provisions of the excess policy. “It is well settled that the obligations of following f

orm excess insurers are defined by the language of the underlying policies, except to the extent that there is a conflict between the two policies, in which case, absent excess policy language to the contrary, the wording of the excess policy will control. [Citations.]” (Ostrager & Newman, Handbook of Insurance Coverage Disputes (17 th ed. 2014) § 13.01; see also Home Ins. Co. v. American Home Products Corp. (2 d Cir. 1990 ) 902 F.2d 1111, 1113 [although both primary and excess policies must be examined in
d etermining the scope of excess insurer’s obligations, excess policy controls if there is any conflict between the two insuring agreements].) Some excess insurance policies include, by endorsement, a “broad as primary” provision. A “broad as primary” endo rsement enlarges the scope of coverage to include a loss that is within the scope of the underlying primary policy, even though that loss otherwise would have been excluded under the terms of the excess policy. (Ostrager & Newman, Handbook of Insurance Co verage Disputes
, supra , § 13.01[b]; see Housing Group v. California Ins

. Guarantee Assn

. (1996) 47 Cal.App.4 th 528, 533

- 535 [broad as primary endorsement applies to any loss within the scope of primary policy’s coverage].)9

III. The T opa policy’s insuring agreement does not cover UM/UIM claims and the following form provision does not expand coverage to include such claims The plain language of the Topa policy’s insuring agreement limits the insurer’s indemnity obligation to “losses for which the insured is liable,” i.e., third party liability
claims. 4 ( Montrose, supra , 10 Cal.4 th at p. 663; Garvey, supra , 48 Cal.3d at pp. 407

- 408.) Plaintiff ’ s claim for first party UM/UIM benefits does not come within the sc ope of th at agreement. ( Waller, supra
, 11 Cal .4 th at p. 16 [insured bears the burden of brining a claim within the scope of the policy’s insuring agreement].)
Plaintiff contends the Topa policy is a “following form” excess policy that provides coverage on the identical terms as the underlying State National policy, including the UM/UIM coverage provided under the endorsement to the State National policy. He cites t he following language in the Topa policy’s insuring agreement:

“ The provisions of the Immediate underlying policy are incorporated as a p art of this policy except for:

“ (a) any obligation to investigate, defend, or pay for costs incident to the same;

“ (b) the amount of the limits of liability;

“ (c) any ‘other insurance’ provision; and

“ (d) any other provision s therein which are inconsistent with the provisions of this policy. ”

Th e foregoing policy language, plaintiff argues, does not exclude the UM/UIM coverage provided under the State National policy, and under applicable principles of insurance policy interpretation, matters that are not specifically excluded are deemed covered.
The absence of an express exclusion in the Topa policy has no significance unless
the insuring agreement can be read to include “all sums the ‘ i nsured’ is legally entitled to recover as compensatory damages from t he owner or driver of an ‘uninsured motor
vehicle ’” [the insuring clause in the UM/UIM endorsement to the State National policy]
in the absence of such an exclusion. “[B]efore even considering exclusions, a court must

4 As discussed, the Topa policy provides coverage for “loss,” which is defined as sums paid in settlement of losses for which “the insured is liable.”10

examine the coverage provisions to de termine whether a claim falls within [the policy terms]. [Citations.] ” ( Hallmark Ins. Co. v. Superior Court (1988) 201 Cal.App.3d 1014, 1017.) “[W]hen an occurrence is clearly not included within the coverage afforded by
the insuring clause , it need not also be specifically excluded.” ( Glavinich v.
Commonwealth Land Title Ins. Co. (1984) 163 Cal. App.3d 263, 270 ( Glavinich ) .) The insuring agreement of the T opa policy plainly covers third party liability claims only.
The absence of an exclusion for firs t party UM/UIM claims does not bring such claims within the policy ’s insuring agreement. ( Ibid. )
The language of the T opa policy that incorporates the provisions of the State National policy also expressly excepts from incorporation those provisions “ whi ch are
inconsistent with ” the T opa policy. T he T opa policy’s insuring agreement expressly limits coverage to third party liability claims
, and first party UM/UIM coverage would be
inconsistent with th at limitation. There is no “broad as primary” endorsem ent. Given these circumstances, the provisions of the T opa policy govern the scope of coverage. (Ostrager & Newman, Handbook on Insurance coverage Disputes
, supra , § 13.01, and cases cited.)
The “following from” provision in the T opa policy is significa ntly narrower than
the one at issue in Coca Cola , a case plaintiff cites for the principl e that a “following form” excess policy provides coverage on the identical terms as the underlying primary policy. Coca Cola concerned an excess insurer’s obligation to provide “drop down” coverage upon the insolvency of the underlying primary insurer. The excess insurer’s policy contained a “following form” endorsement that stated in relevant part: “‘“ It is understood and agreed that

. . . the terms and conditions o f this policy, including all prior endorsements, except with regard to amount of insurance (limits) and premium, are
deleted and replaced in their entirety by the terms and conditions of the underlying Mission National Insurance Policy No MN 037126

. . . . ”’” ( Coca Cola, supra , 11 Cal.App.4th at p. 1182, fn. 1, italics added.) The T opa policy’s following form provision
is no where near as broad

. Coca Cola is accordingly distinguishable.11

Although a following form provision was not at issue in Furlough , su pra, 203 Cal.App.3d 40, the court in that case considered whether UM coverage was afforded by a commercial umbrella policy that supplemented an underlying business auto policy that included UM coverage as required by Insurance Code section 11580.2. The co urt in Furlough held that no UM coverage was provided under the umbrella policy, reasoning as follows: “The commercial umbrella policy did not expressly provide uninsured motorist coverage and may not be read to include such coverage. While every bodily injury motor vehicle liability policy issued or delivered in this state must provide uninsured motorist coverage [citations], neither statutory nor decisional law requires that
insurance furnished on an umbrella or excess basis include uninsured motorist c overage. [Citations.] ” ( Id. at p. 47.)
IV. Courts in other jurisdictions are in accord Although no California court has considered the precise coverage issue presented here, c ourts in other jurisdiction s have done so in similar or analogous circumstan ces and
have concluded that UM/UIM coverage is not provided under an excess liability policy that incorporates by reference an underlying primary polic y that includes such coverage.
In Matarasso v. Continental Cas. Co. (198 1 ) 82 A.D.2d 861 ( Matarasso ) , th e A ppellate D i vision of the New York Supreme Court considered whether uninsured motorist coverage was available under a commercial umbrella liability policy that incorporated by reference an underlying automobile policy that included an uninsured
motorist en dorsement. ( Id. at p. 862. ) The court held that it did not, basing its decision on the language of the umbrella policy : “ T he umbrella policy clearly provides excess protection for [the insured ] against liabi lity from third

- party claims. It incorporat es the underlying policies insofar as they provide for protection against liability for damages to third parties. The uninsured motorist coverage provided by the underlying automobile liability policy does not involve claims of liability against the insur ed from third parties and is not incorporated by the umbrella policy. Any other interpretation would distort the actual purpose of the umbrella policy.” ( Ibid. )12

In Har t barger v. Country Mut. Ins. Co. (1982) 437 N.E.2d 691 ( Hartbarger ) , the Illinois Appe llate Court similarly addressed the issue of whether UM coverage was provided under an umbrella policy that was specifically excess to an underlying automobile policy that included UM coverage . The court concluded it did not, following the reasoning of th e court in Matarasso that the plain la nguage of the umbrella policy did
not include first party UM coverage. ( Hartbarger
, at pp. 692

- 693 .) The court in
Har t barger also rejected the insured’s argument that the umbrella policy was ambiguous
because UM cove rage was no t specifically excluded: “[T]he failure of the insurer to list uninsured motorist coverage in the exclusions to the umbrella policy does not create any ambiguity in view of the numerous terms limiting the umbrella policy to excess liability

cov erage. As the defendant correctly argues, exclusions are relevant in construing an insurance policy only when the policy provides coverage in the first place. [Citation.] The umbrella policy did not provide uninsured motorist protection, and thus there was no need to exclude it.” ( Id. at p. 693 .)
In Mazzaferro v. RLI Ins. Co. (2 d Cir. 1995) 50 F.3d 137, the Second Circuit also considered a UM/UIM claim under an umbrella liability policy that provided excess coverage over an underlying automobile liabil ity policy that included such coverage. Although t he umbrella policy’s insuring agreement limited the insurer’s indemnity obligation to third party liability claims, the trial court held the excess insurer responsible
for a first party UIM claim, basing i ts decision on an endorsement to the umbrella policy which stated: “This policy does not apply to Personal Injury or Property Damage arising out of the ownership, maintenance, operation, use, loading or unloading of any
automobile unless insurance therefo re is provided by a policy listed in the Underlying Insurance Schedule and then only for such coverage as is afforded by such policy.” ( Id

. at p. 140. ) The Second Circuit reversed, concluding that the trial court’s interpretation of the endorsement “squa rely contradicts the policy’s terms of coverage, which cover liability to third parties only.” ( Ibid. ) In so doing, the Second Circuit cited with approval the New York Supreme Court’s decision in Matarasso and the following language from
the Illinois app ellate court’s decision in Hartbarger : “‘ It is obvious that the present13

[excess] policy was intended by both parties to protect the insured against excess judgments, and the risks and premiums were calculated accordingly. To require that policy to furnis h uninsured motorist coverage would work a substantial revision of that policy. ’ [Citation.]” ( Mazzaferro, supra , 50 F.3d at p. 141, quoting Hartbarger, supra
, 437 N.E.2d at p. 694 .)
We find t he reasoning of the courts in these other jurisdictions to be persuasive and apply it here. That reasoning is also consistent with California law

. (See, e.g.,
Foster

- Gardner, supra , 18 Cal.4 th at p. 868 [policy language that is clear and explicit governs]; Glavinich , supra , 163 Cal. App.3d at p. 270 [ occurrence no t clearly included within policy’s insuring clause need not be specifically excluded]; Waller, supra
, 11
Cal.4 th at p. 16 [court will not indulge a forced interpretation of the insuring agreement to bring a claim within the scope of its coverage] ; Fur lough , supra , 203 Cal.App.3d at p. 47 [“neither statutory nor decisional law requires that insurance furnished on an umbrella or excess basis include uninsured motorist coverage”].) V. The policy language is not ambiguous
Plaintiff contends the language of th e T opa policy is ambiguous because the limitation to third party liability in paragraph 1 of the insuring agreement must be read together with paragraph s 3 (a) and 3(c) , which re affirm the “following form” nature of the policy

. Plaintiff cites the followin g sentence from paragraph 3(a), which states: “When the immediate Underlying Insurance policy applies to injury or destruction taking place during this policy period, this policy likewise applies to injury or destruction taking place during this policy pe riod.” He also cites part of the following sentence from paragraph 3(c): “This policy will follow the form of the immediate underlying policy pursuant to the provisions of subparagraphs 3(a) and 3(b) above” but omits the balance of that sentence, which s tates: “ and subject to the terms, conditions and limitations of all other provisions of this policy .” (Italics added.) Plaintiff’s omission of the relevant limiting language underscores the weakness in his coverage position, which ignores the plain lang uage of the policy limiting coverage to third party liability claims. That limitation14

applies to paragraphs 3(a) and 3(c) of the insuring agreement. There is no ambiguity in the policy language. The plain language of the T opa insuring agreement unambigu ously provides coverage for third party liability claims only. 5
DISPOSITION The judgment is affirmed. T opa is awarded its costs on appeal.
CERTIFIED FOR PUBLICATION

____________________________, J. CHAVEZ

We concur:

_________________ _________, P. J. BOREN

__________________________, J. HOFFSTADT

5 In view of our holding, we need not address T opa ’s alternative argument that the policy excludes coverage for “any liability or obligation imposed on the Insured under any . . . uninsured motorists, underinsured motorists or automobile no

- fault or first party personal injury law.”