1

Filed 2/9/21 Carson v. Truck Insurance Exchange CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

MIKE CARSON et al.,

Plaintiffs, Cross

- defendants and Appellants,

v. TRUCK INSURANCE EXCHANGE,

Defendant, Cross

- complainant and Respondent. C081767 (Super. Ct. No. 34

- 2013

- 00138428)

Plaintiffs Jack Sweigart , Mike Carson, and Bob Payne ( collectively the S C P parties ) appeal the judgment entered following the tr ial court ’s grant of defendant Truck Insurance Exchange’s (Truck) motion for summary judgment. In the underlying litigation, the SCP parties were named in a suit brought by the Ranch at Clay Station Homeowner’s Association ( the HOA) and individual hom e owners

. Truck insured the
HOA. The SCP parties sought coverage under the policy, which Truck denied. Litigation followed and the parties filed cross

- motions for summary judgment. The trial2

court granted Truck’s motion, finding the SCP pa rties excluded from coverage by the policy’s terms

. The SCP parties challenge the trial court’s reasoning. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND The Underlying Litigation Developer JTS Communities , Inc. (JTS) built a condominium development, the Ranch at Clay Station. The Ranch at Clay Station consisted of 1,200 acres with 222 homes and 400 acres designated as a “common area.” The homeowners believed the common area would be conveyed to the HOA for com munal use, including horseback riding, hiking , and biking. After the completion of construction, JTS declared it retained
title to the 400

- acre common area and intended to sell it to a third party for $2 million

. In response, the HOA and individual homeo wners brought suit against JTS over the common area, in Montgomery v. JTS Communities, Inc. ( Montgomery ). 1 In the second amended complaint, filed in July 2011, the plaintiffs added claims against Sweigart, Payne , and Carson. Sweigart served as presiden t of the HOA in 2004. He has been president of JTS from 1999 to the present. Payne was on the HOA’s b oard of directors from 2005 through August 2007 and was also an officer. From December 2003 through September 2008, Payne worked for JTS in the warranty department. Carson served on the initial HOA
b oard of d irectors and also served as its p resident. Carson served on the board between 2005 and 2009. He was initially appointed by JTS and later elected by the homeowners. Carson also performed land development work for JTS from 1999 to the present.

1 Montgomery v. JTS Communities, Inc. , Sacramento County Superior Court, case No. 34

- 2010

- 00073633.3

The second amended complaint identifies the parties and sets forth their
involvement

. With respect to Sweigart , it alleges: “Jack T. Sweigart

. . . was and is an individual doing business in the County

. . . Sweigart and Does 76 through 100 were and are the owners of JTS and owned, planned, subdivided, developed, constructed, marketed, maintained, and sold the residences, the homes at The Ranch [ at Clay Station ]

. Further, Plaintiffs believe and contend that Sweigart directed his agents, employees, and representatives to mislead the

. . . HOA and the Homeowners regarding the use and ownership of the Common Area, among other things.” As to Carson and Payne, the second amended complaint states : “Defendant s Mike Carson and Bob Payne (hereinafter ‘Board Members’ and collectively included in

‘ Defendants ’ ) were and are individuals doing business in the County

. . . Plaintiffs
believe and contend , and based thereon allege, Board Members and Does 126

- 150 were

an d are representatives of JTS who served on the

. . . HOA b oard of directors under the control and direction of JTS.” The second amended complaint alleges a single cause of action against Sweigart, Carson, Payne , and JTS for breach of fiduciary duty: “48. Payne, Carson, Sweigart, and JTS and its agents and representatives (hereinafter ‘JTS Defendants’) as directors of
the

. . . HOA , owed a fiduciary duty to Plaintiff s not to exercise their powers to gain pecuniary benefit for themselves by causing Plainti ffs harm in violation of California Corporations Code §§ 7210 , 7231 and related statutes.

“ 49. As stated above, JTS Defendants were in control of the

. . . HOA from approximately 2003 through 2008. Attached hereto as Exhibit F is a matrix detailing the

c hronology of the JTS c ontrol led b oard of the

. . . HOA.

“ 50. Plaintiffs believe and understand, and base d thereon allege , that JTS Defendants, and each of them as directors of the

. . . HOA, breached that duty by: “( A) Failing to properly investigate the annexation of the Common Area;4

“ (B) Refusing to accept the annexation of the Common Area when offered by JTS;

“ (C) Inappropriately contracting for maintenance service with entities which directly and indirec tly benefited JTS; “( D) Improperly withholding financial information and documents from

. . . HOA;

“ (E) Allowing property taxes to accrue on the Common Area in excess of $150,000; and

“ (F) Other breaches of fiduciary duty which will be discovered as investigation
continues.

“ Plaintiffs are informed and believe and on that basis allege that JTS, and its agents and representatives , and each of them, took the action described in this paragraph for their own pecuniary benefit. Defendants , and each of them , suffered no harm as a
result of the action but knew it would cause harm to Plaintiffs.

“ 51. Plaintiffs believe and allege that as a direct and proximate result of the breach of fiduciary duty above, Plaintiffs have been harmed as more fully set forth in
prayer and of this complaint in an amount to be proven at trial.” In February 2012 the SCP parties filed a first amended cross

- complaint for indemnity and declaratory relief against the Montgomery plaintiffs. The SCP parties alleged the HOA owed a duty to defend and indemnify them in Montgomery based on
their service as directors of the HOA.
While Montgomery was pending, the SCP parties tendered their defense to Truck. They argued the underlying action triggered Truck’s duty to defend them as directors and officers under the HOA’s primary policy and umbrella policy. Truck denied coverage.
In August 2014 the parties to Montgomery entered into a settlement agreement. As part of the settlement, the HOA received a nonrevocable exclusive easement to all but five of the 400 acres in dispute. The agreement also contained a provision requiring the5

HOA ’ s b oard of d irectors to pass a resolution indemnifying the SCP parties for all attorney fees and cost incurred in the underlying action. Subsequently , the HOA adopted
the resolution

. As part of the agreement, the Montgomery plaintiffs agreed to dismiss the action. The SCP parties reserved the right to pursue their cross

- complaint for indemnity against
the HOA

. Subsequently, the Montgomery action was dismissed with prejudice.
Truck was unaware of the settlement or the board resolution until after the settlement was adopted by the HOA. The Truck Policy The HOA had purchased a c ondominium o wner’s p olicy from Truck. The p olicy contained commercial general liability coverage and a d irectors and o fficers

e ndorsement.
The d irectors and o fficers liability coverage states, in part: “We will pay those
sums which you become legally obligated to pay as damages because of a ‘Clai m’ for
any ‘wrongful acts’ committed by an y insured, or any other person for whose acts you are legally liable. The ‘wrongful acts’ of an insured natural person must be committed in their conduct of management responsibilities for the organization. We wi ll have the right and duty to defend you against any ‘suit’ seeking those damages. However, we will have no duty to defend you against any ‘suit’ seeking damages for ‘wrongful acts’ to which this insurance does not apply.”
The p olicy was effective Novemb er 5, 2010 , and included a retroactive date of November 5, 2007 , which applied to the d irectors and o fficers e ndorsement

. 2

2 The dissent points out that Sweigart and Payne were no longer members of the board on November 5, 2007, the retroactive date, and thus were not covered by the policy. Perhaps so, although plaintiffs disagree and the trial court chose to base its holding on the policy exclusion exclusively, as do we.6

The “Ranch at Clay Station HOA” is the named insured. The i nsured also includes “ Any person who has been, now is, or shall become: [¶] a

. A duly elected director or trustee of an insured organization; [¶] b

. Duly elected or appointed officer of an insured organization .

. . .”
The p olicy defines a claim as “a demand or ‘suit’ agai nst any insured for a ‘wrongful act

. ’ ” A wrongful act “means any negligent acts, errors, omissions or breach of duty committed by an insured in their capacity as such.”
Exclusions The policy also sets forth exclusions. The exclusion at issue here state s:

“ EXCLUSIONS : “This insurance does not apply to ‘Claims’: [¶] .

. . [¶]

“ 12. Relating to or arising from the insured serving in any capacity in any organization, which at the time of such services is not an insured under this policy;

“ 13. Broug ht or maintained by or on behalf of an insured organization unless the ‘Claim’ is brought and maintained totally independent of, and totally without solicitation, assistance, participation or intervention of any officer, director or trustee of an insured

o rganization;

“ 14. For liability under or breach of any oral, written or implied contract or agreement, or for liability of others assumed by the insured under any such contract or agreement, but this exclusion will not apply to the extent the insured wou ld have been liable in the absence of such contract or agreement

. . . . ” The Indemnity Cross

- c omplaint In November 2014 the trial court heard argument on the SCP parties ’ indemnity

cross

- complaint. The HOA argued the focus of the Montgomery action was not the SCP parties ’ breach of duty as HOA board members, but on claims and misrepresentations
unrelated to board member activities. The trial court disagreed. The court entered7

judgment in favor of the SCP parties on their claim for defense a nd indemnity. The court
found: “Carson, Sweigart and Payne were sued as board members and it was alleged that as board members, they had engaged in certain misconduct as board members that included, inter alia, a breach of fiduciary duty. The board reso lved unanimously to indemnify them. By alleging each individual was a board member and that as board members, they breached their fiduciary duty to the HOA, the HOA is estopped to deny they were at relevant times directors.” Dueling Complaints In January 2013 Truck filed an action for declaratory relief against the SCP parties
and the HOA , seeking a declaration that it had no duty to defend the SCP parties in the Montgomery action. Truck referenced Exclusion No. 12 and Exclusion No. 13 of the
p olicy.
A couple of days later, the SCP parties filed a complaint for breach of contract and breach of the covenant of good faith and fair dealing against Truck. The SCP parties alleged Truck breached its duty to defend them in the Montgomery action. The two
actio ns were consolidated. Dueling Summary Judgment/Adjudication Motions In April 2015 both the SCP parties and Truck filed motions for summary judgment/adjudication over insurance coverage . In its motion, Truck argued the acts of the SCP parties fell outside the policy because their acts were not committed in “ their

‘ conduct of management responsibilities for the [HOA]

. ’ ” Nor were their acts within their capacity as the managers of the HOA b oard of d irectors. Exclusion No. 12 and
Exclusion No. 13 of the policy applied and barred coverage for claims asserted by the SCP parties . In their opposition, the SCP parties argued t hey were sued for breach of fiduciary duty as HOA board members, not JTS employees, and the “insured capacity” exclusion did not apply.8

Following oral argument, the trial court denied the SCP parties’ motion for summary adjudication. The court denied Tru ck’s motion for summary judgment, but granted its motion for summary adjudication. The trial court found Truck had no duty to defend or indemnify the SCP parties under the Exclusion No. 13, the “insured

- vs.

- insured” exclusion. The court’s order stated: “Because the court grants summary adjudication of Truck’s declaratory relief complaint based on the insured

- vs.

- insured exclusion, it does not address the parties’ other arguments in support of or in opposition to this part of the motion.” The SCP partie s filed a motion for reconsideration. After additional briefing, the trial court issued a minute order vacating its prior order granting summary adjudication. The court found Truck did not meet its burden of demonstrating the nonexistence of any triable issue regarding the applicability of
Exclusion No. 13. The court granted Truck’s motion for summary judgment on the basis
of Exclusion No. 12. Following more supplemental briefing, the trial court affirmed its prior minute order granting summary judgment in favor of Truck on the basis of Exclusion No. 12. Following entry of judgment, the SCP parties filed a timely notice of appeal.

DISCUSSION
Standard o f Review A motion for summary judgment must be granted if the submitted papers show
there is no triabl e issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party initially bears the burden of making a “prima facie showing of the nonexistence of any genuine issue of material fact.” ( Aguilar v. Atl antic Richfield Co. (2001) 25 Cal.4th 826, 845.) “A prima facie showing is one that is sufficient to support the position of the party in question.” ( Id. at p. 851.) Once the moving party has met its burden, the burden shifts to the opposing party to9

sh ow the existence of a triable issue of material fact. (Code Civ. Proc., § 436c,
subds. (c), (p)(2).)
We review de novo the record and the determination of the trial court. First , we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond. Second, we determine whether the moving party’s showing has established facts negating the opponent’s claims and justifying a judgment in the moving party’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material issue of fact. ( Barclay v. Jesse M. Lange Distributor, Inc. (20 05)
129 Cal.App.4th 281, 290.) The parties agree the interpretation of an insurance policy presents a question of law. ( Waller v. Truck Insurance Exchange , Inc. (199 5 ) 11 Cal.4th 1, 18.) In interpreting the policy, we determine the mutual intent of the parties at the time the contract was formed. If possible, we consider only the written provisions of the policy. We interpret policy terms using their “ ‘ ordinary and popular sense ’ ” unless they are used in a technical sense or with a special meaning. ( AIU Ins. Co. v. Superior Court (1990)
51 Cal.3d 807, 821

- 822.) Although policy exclusions are construed strictly, courts are not free to ignore an exclusion if it clearly applies. ( Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th 315, 322; California Traditions, Inc. v. Claremont Liability Ins. Co. (2011)
197 Cal.App.4th 410, 418

- 419.) The burden rests with the insurer to prove a claim falls within an exclusion. ( Brodkin v. State Farm Fire & Casualty Co. (1989) 217 Cal.App.3d 210, 216.) An exclusionary clause must be conspicuous, plain , and clear to be enforceable. ( State Farm Mut. Auto

. Ins. Co. v. Jacober (1973) 10 Cal.3d 193, 201

- 202.)10

Duty t o Defend The SCP parties arg ue the Montgomery action triggered Truck’s duty to defend because there was a “potential” that the SCP parties could be liable for damages as HOA
b oard m embers. According to the SCP parties , “ if there is even the mere potential that they were sued in thei r capacity as HOA officers or directors, there is a duty to defend.” The trial court correctly rejected this argument.
The trial court noted in the Montgomery action, the plaintiffs alleged the SCP parties acted as JTS’s agents when they engaged in the misconduct at the center of the
action. The court summarized the connections between the SCP parties and JTS and the SCP parties’ actions on behalf of JTS. The second amended complaint alleged Sweig a rt owned JTS and directed his employees and agents to mislead the HOA and other plaintiffs. The SCP parties breached their duties as HOA directors by “ [ i ] nappropriately contracting for maintenance services with entities which directly and indirectly benefited
JTS .” Sweig a rt also misrepresented JTS’s intent to dedicate a common area to the HOA.
The court concluded: “Given these allegations that the SCP Parties’ misconduct was related to and motivated by their allegiance with JTS, any reasonable construction of

t he exclusion in § B(12) and the Montgomery Action [second amended complaint] yields
a conclusion that the Montgomery Action was a claim related to or arising from the SCP Parties’ service in an organization which at the time of such service was not an insu red. (See Davis v. Farmers Ins. Gr ou p (2005) 134 Cal.App.4th 100, 106

- 107 [even in a policy exclusion, the phrase ‘arising from’ has a broader meaning than the phrase ‘caused by’] [citation] .) ” The SCP parties also contend the duties they allegedly breac hed were owed by the
HOA to its members and therefore the SCP parties could only be acting in their capacity as HOA board members. According to the SCP parties , the complaint do e s not focus on any alleged benefit to JTS, but on the potential harm to homeo wners.11

The court also found this contention wanting: “The suggestion appears to be that the allegations must be construed either to establish that the SCP Parties acted in their capacities as officers and directors of the HOA or as agents of JTS. Becaus e there is no apparent basis in either the policies or the law for such a mutual exclusion, the court rejects the suggestion. The fact that the Montgomery Plaintiffs alleged the SCP Parties to have engaged in misconduct as HOA officers and directors trigg ered the coverage provisions in the D&O Endorsements. That the Montgomery Plaintiffs also alleged that the SCP Parties acted as agents of JTS triggered the exclusion in § B(12).” We agree with the trial court’s analysis of both the facts and the law. Un der
Exclusion No. 12, the Truck policy does not apply to claims: “Relating to or arising from the insured serving in any capacity in any organization which at the time of such service
is not an insured under this policy.” ( Italics added.) In this regard the exclusion is not restricted to claims premised on specific actions taken by an insured on behalf of an organization that is not insured under the policy. Rather, the exclusion applies broadly to claims “relating to” the insured’s servic e “in any capacity in any organization which at
the tim e of such service is not insured under this policy.” Here, while the claimed breach of fiduciary duty may not be based on actions by the three affected directors on behalf of JTS, it is clearly “relat ed to” their service at JTS, an organization that is not insured under the policy. The exclusion anticipates and takes into account complications and conflicts that can arise when individuals serve organizations whose interests might diverge, as
occurred in the present case. It is a broad exclusion that encompasses claims relating to the insured’s service in any capacity to an organization that is not a named insured. 

### The dissent insists the allegations of the complaint “establish only that Carson

was an employee of JTS and acted in a representative capacity for JTS when he served as a director on the board.” (Conc. & dis. opn. post , at p. 5.) The alleged breach of fiduciary duty was for his own pecuniary benefit in his capacity as an HOA director,

not because he served JTS in a manner separate from his position on the board. If12

Truck intended to exclude developer

- directors from coverage during a period where several, if not a majority, of the board’s directors were developer

- directors, it had an obliga tion to do so in a plain, conspicuous, and clear manner. The allegations cannot be read as the dissent reads them. The complaint does not seek recovery from Carson because he worked for JTS but because he violated his duty of undivided loyalty to the HO A, permitting his service to JTS to take priority. 

### The gravamen of the breach of fiduciary duty claim is that Sweigart, Payne, and Carson acted to benefit JTS to the detriment of the HOA. Perhaps Carson could have defeated this claim but Truck could choo se not to cover claims related to his service to JTS, an uninsured. That is what the exclusion provides and that is what this case is about. Words can sometimes be obfuscated to create ambiguity. But the language of the exclusion, while quite broad, is also quite clear, plain, and conspicuous and covers the circumstances of the present dispute.
Trial Court’s Determination i n t he Montgomery Action The SCP parties contend the trial court’s findings in the Montgomery action bar the trial court in the pres ent case from concluding that Exclusion No. 12 applies. The
court in the Montgomery action found the SCP parties “were sued as board members and it was alleged that, as board members, they had engaged in certain misconduct as board members that included, inter alia, a breach of fiduciary duty.” The Montgomery court’s rejection of the HOA’s argument that the SCP parties were not sued as board members is binding on Truck and the court. The trial court considered and rejected this argument: “Assuming arguendo the Montgomery court’s determination s binds this court, the court never addressed the question whether the exclusion in § B(12) applies.” In addition, the court noted “a
determination that the Montgomery Plaintiffs’ allegations fell within the co verage13

provisions in the D&O Endorsements does not preclude a determination that an exclusion to coverage applies as well.” We agree with the trial court. The court in Montgomery considered JTS and the SCP parties’ cross

- complaint for indemnity against t he HOA stemming from the 2014 settlement agreement. Under the settlement agreement, the HOA passed a board resolution agreeing to indemnify the SCP parties for attorney fees incurred in the Montgomery action. The court determined JTS should recover nothi ng, but awarded the SCP parties $60 5 ,860 in attorney fees based on the settlement agreement. The court
determined: “Based on all the evidence presented SCP has established a right to indemnity under the terms of the contract.” The Montgomery court never considered
whether or not the SCP parties w ere an insured under the Truck policy. The court simply enforced a contractual obligation.

DISPOSITION The judgment is affirmed. Truck shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/ RAYE, P. J.

I concur:

/s/ MURRAY, J.1

ROBIE, J., Concurring and Dissenting. I concur in the majority’s conclusion that defendant Truck Insurance Exchange (Truck) had no duty to defend plaintiffs Jack Sweigart and Bob Payne in the underlying litigation, but for a different reason. I further dissent to the majority’s conclusion that Truck had no duty to defend plaintiff Mike Carson. I believe the policy, with respect t o Carson, must be read in favor of coverage and against Truck because exclusion No. 12 is ambiguous and it does not appear that the allegations at issue in this case are of the nature intended to trigger application of this type of exclusion.
I
Truck Had N

o Duty To Defend Sweigart And Payne The directors and officers liability coverage form endorsement (the endorsement) to the condominium owners policy issued by Truck (the policy) to named insured The Ranch at Clay Station Homeowners Association (the associ ation) provides: “We will pay those sums which you become legally obligated to pay as damages because of a ‘Claim’ for any ‘wrongful acts’ committed by any insured, or any other person for whose acts you are legally liable. The ‘wrongful acts’ of an insu red natural person must be committed in their conduct of management responsibilities for the organization. We will have the right and duty to defend you against any ‘suit’ seeking those damages. However, we will have no duty to defend you against any ‘su it’ seeking damages for ‘wrongful acts’ to which this insurance does not apply.” “Wrongful act” is defined as “any negligent acts, errors, omissions or breach of duty committed by an insured in their capacity as such.” The amendatory coverage endorsement to the policy defines a claim as either “a civil or administrative adjudicatory proceeding” or “a written demand for monetary damage against the insured for a wrongful act.” It is undisputed Sweigart and Payne met the definition of “insured” under the

e ndorsement as directors on the association’s board of directors (the board). It is further2

undisputed that the policy at issue “does not apply to ‘loss’ from ‘wrongful acts’ which took place before the Retroactive Date” of November 5, 2007. The undisput ed facts establish that the wrongful acts complained of as to Sweigart and Payne

-- i.e., acts taken while they were on the board

-- occurred prior to
November 5, 2007, because Sweigart served on the board only in 2004 and Payne served
on the board from Au gust 2005 to August 2007. (See Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 298

- 299 [undisputed extrinsic evidence can establish the absence of a potential for coverage].) Truck, accordingly, had no duty to defend Sweigart and Payne in the underlying litigation relating to their actions while serving on the board.
II Truck Had A Duty To Defend Carson It is undisputed Carson met the definition of “insured” under the endorsement when he served on the board. The question is whether exclus ion No. 12 negates that coverage given the allegations in the second amended complaint. In my view, it does not. I believe it is necessary to again review the allegations (somewhat expanded from the majority’s recitation) before applying the law.
A
The A llegations And Undisputed Facts As to Carson, 3 Truck relies on paragraph 9 and the fifth cause of action in the second amended complaint filed in the Montgomery 4 action as the basis for applying

3 The endorsement contains a “Separation of Insureds” provision, which provides: “Except with respect to the Limits Of Insurance, and any rights or duties specifically assigned in this Coverage Form to the N amed Insured, this insurance applies as if each insured were the only insured.”

4 Montgomery v. JTS Communities, Inc. , Sacramento County Superior Court, case No. 34

- 2010

- 00073633.3

exclusion No. 12. In paragraph 9, the Montgomery plaintiffs alleged that Carson was believed to be a representative of JTS Communities, Inc. (JTS) “who served on the [board] under the control and direction of JTS.” In the breach of fiduciary duty cause of action, the Montgomery plaintiffs alleged that, “from approximately 2003 through 2008,” JTS was in control of the association, attaching exhibit F, “detailing the chronology of the JTS controlled board of the [association ].” In that chronology, for the period August 2007 to August 2008, the Montgomery plaintiffs designated two of the directors with a “JTS” behind their names (Carson being one of them) and another with “H.O./JTS”
behind her name. The Montgomery plaintiffs further asserted, in pertinent part, that Carson owed the association a fiduciary duty and breached that duty by: “(A) Failing to properly investigate the annexation of the COMMON AREA ; “(B) Refusing to accept the annexation of the COMMON AREA when offered by JTS; “(C) Inappropriately contracting for maintenance service with entities which directly or indirectly benefited JTS; “(D) Improperly withholding financial information and documents fro m [the association]; “(E) Allowing property taxes to accrue on COMMON AREA in excess of $150,000; and “(F) Other breaches of fiduciary duty which will be discovered as investigation continues.”
The Montgomery plaintiffs further alleged that Carson took t he foregoing actions for his “own pecuniary benefit.” It is undisputed that Carson served on the board from August 2005 until approximately August 2009 and worked for JTS during that time. As noted previously, it is further undisputed that the policy ex pressly applies retroactively to November 5, 2007.4 B The Exclusion Must Be Read In Favor Of Coverage “Interpretation of an insurance policy is a question of law and follows the general rules of contract interpretation. [Citation.] ‘The fundamental rule s 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 statutory rules of contract interpretation, the mutual intention of the parties at the time the c ontract is formed governs interpretation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and p opular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’ [citation], controls judicial interpretation. [Citation]” [Citations.] A policy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. [Citation.] But language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract.’ ” ( MacKinnon v. Truck Ins. Exchan ge (2003) 31 Cal.4th 635, 647

- 648.) “The proper question is whether the [language] is ambiguous in the context of this policy and the
circumstances of this case.” ( Bay Cities Paving & Grading v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 868.) “[A]n y ambiguities in an insurance policy must be read against the insurer.” ( Silberg v. Cal. Life Ins. Co. (1974) 11 Cal.3d 452, 464.) Insurance coverage is “ ‘ “ ‘interpreted broadly so as to afford the greatest possible protection to the insured, [whereas] . . . exclusionary clauses are interpreted narrowly against the insurer.’ ” ’ [Citation.] ‘[A]n insurer cannot escape its basic duty to insure by means of an exclusionary clause that is unclear. As we have declared time and again “any exception to the p erformance of the basic underlying obligation must be so stated as clearly to apprise the insured of its effect.” [Citation.] Thus, “the burden rests upon the insurer to phrase exceptions and exclusions in clear and unmistakable language.”5

[Citation.] The exclusionary clause “must be conspicuous, plain and clear .” ’ [Citation.] This rule applies with particular force when the coverage portion of the insurance policy would lead an insured to reasonably expect coverage for the claim purportedly excluded

. [Citation.] The burden is on the insured to establish that the claim is within the basic scope of coverage and on the insurer to establish that the claim is specifically excluded.” ( MacKinnon v. Truck Ins. Exchange , supra , 31 Cal.4th at p. 648.)
Exclu sion No. 12 provides the insurance does not apply to claims “[r]elating to or arising from the insured serving in any capacity in any organization which at the time of such service is not an insured under this policy.” Truck asserts the allegations were t hat Carson breached his fiduciary duties to the association “because [he] engaged in conduct in service of JTS Communities, for JTS Communities’ pecuniary benefit, and adverse to the Homeowners’ Association.” It
further asserts the Montgomery plaintiffs a rgued Carson was “acting in the best interests of the developer, JTS Communities, an organization that was not insured under the policy rather than in the best interest of the Homeowners’ Association” and it was undisputed Carson was employed by JTS at all times relevant to the underlying litigation. The majority concludes the allegations clearly establish the breach of fiduciary duty related to Carson’s “service at JTS.” (Maj. opn. at p. 11.) While Truck’s and the majority’s interpretation of the exclus ion is certainly plausible, I believe the exclusion is ambiguous
when considered within the context of this policy and the circumstances of this case. In my view, the allegations establish only that Carson was an employee of JTS and acted in a representati ve capacity for JTS when he served as a director on the board. The Montgomery plaintiffs expressly alleged that Carson breached his fiduciary duty for his

own pecuniary benefit and only in his capacity as an association director , not because he
served for and provided services to JTS in a manner separate from his position on the board. If the exclusion is read to negate coverage for decisions made and actions taken by a director serving on the board in a representative capacity on behalf of a developer,6

w ould coverage for a developer

- director not always be denied and thus be illusory? In my view, the interpretation advanced by Truck does not appear to be contemplated in the
context of this policy and the circumstances of this case. Truck agreed to the retroactive application of the endorsement to November 5,
2007

-- a time when allegedly at least two and perhaps three developer

- directors served on the board. As Carson appropriately points out, a developer’s role in the management
of a homeowners associ ation is anticipated, known, and regulated. If Truck intended to exclude developer

- directors from coverage during a period where several, if not a majority, of the board’s directors were developer

- directors, it had an obligation to do so in a plain, consp icuous, and clear manner. ( MacKinnon v. Truck Ins. Exchange , supra , 31 Cal.4th at p. 648.) Exclusion No. 12 is not plain or clear as to such an intent, rendering it ambiguous under the facts of this case. (See Zahler v. Twin City Fire Ins.
Co. (S.D.N.Y. , Sept. 17, 2007, No. 04 Civ. 10299 (LAP)) 2007 U.S. Dist. Lexis 74720, at
*16

- 17 [finding the phrase “serving as” in an analogous outside services exclusion 5 ambiguous given extrinsic evidence that could support the insured’s view of the parties’
intent that the exclusion “ ‘turn[ed] on which “hat” the defendant [wa]s sued in, not whether a “hat” is merely mentioned’ ”].) I think Carson’s interpretation that the exclusion applies to claims relating to or arising from an action taken by Carson in his
role as an employee for JTS (independent of merely serving on the board) is a reasonable interpretation in the context and under the facts of this case. The ambiguity must be construed against Truck. ( Silberg v. Cal. Life Ins. Co. , supra , 11 Cal.3d at p. 464 .)

5 The exclusion provided: “ The Insurer shall not be liable to make any p ayment for Loss in connection with any Claim made against the Directors and Officers . . . for, based upon, arising from, or in any way related to such Directors or Officers serving as a director, officer, trustee, regent, governor or employee of any entit y other than the Company even if such service is at the direction or request of the Company . . . .” ( Zahler v. Twin City Fire Ins. Co. , supra , 2007 U.S. Dist. Lexis 74720, at *2

- 3.)7

I further note that the allegations in this case do not appear to be of the nature intended to trigger this type of exclusion. (See, e.g., Law Offices of Zachary R. Greenhill P.C. v. Liberty Ins. Underwriters, Inc. (2015) 9 N.Y.S.3d 264, 267 [128 A.D.3 d 556, 559] [capacity exclusion 6 applied to malpractice counterclaim arising in the context of the attorney suing to enforce the payment of consulting fees for his and his wife’s nonlegal services

-- in other words, the allegations were that the attorney was wearing two hats simultaneously and thus he was not insured for misconduct occurring while wearing a nonlegal and uninsured hat]; Cont’l Cas. Co. v. Adams (M.D.Pa., Sept. 12, 2003, No. 3: CV

- 02

- 1122) 2003 U.S. Dist. Lexis 16434, at *15

- 33 & fn. 10 [out side
service exclusion 7 applied where underlying litigation alleged misconduct by the individual defendants in their capacities as officers and directors of both the insured entity and an uninsured entity]; Offutt v. Twin City Fire Ins. Co. (N.D., Sept. 2 6, 2014,
No. 3:13

- cv

- 54) 2014 U.S. Dist. Lexis 188406, at *20 [dual service exclusion 8 applied

6 The capacity exclusion provided the policy “ ‘does not apply to any c laim arising out of your services and/or capacity as [¶] . . . an officer, director, partner, trustee, manager operator, or employee of an organization other than that of the name insured

. . . .’ ” ( Law Offices of Zachary R. Greenhill P.C. v. Liberty Ins . Underwriters, Inc. , supra , 128 A.D.3d at p. 558.)

7 The exclusion provided the insurer “ ‘shall not be liable to pay any loss in connection with any claim based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged conduct by the individual insureds in the discharge of their duties as directors, officers, trustees, employees or volunteers of any entity other than the entity or charitable organization, even if directed or requested by the entity to serve as directors, officers, employees or volunteers of such entities.’ ” ( Cont’l Cas. Co. v. Adams , supra , 2003 U.S. Dist. Lexis 16434, at *22, underlining omitted.)

8 The dual service exclusion provided: “ The Insurer shall not pay Loss

. . . of an Insured Person based upon, arising from, or in any way related to such Insured Person ’ s service, at any time, as a director, officer, trustee, regent, governor or equivalent executive or as an employee of any entity other than an Insured Entit y .” ( Offutt v. Twin City Fire Ins. Co. , supra , 2014 U.S. Dist. Lexis 188406, at *20.)8

where allegations against the insured related to his position as chairman of an uninsured entity]; Palmer v. Twin City Fire Ins. Co. (E.D.Pa., Nov. 20, 2017, No . 17

- 826) 2017 U.S. Dist. Lexis 190993, at *14

- 15 [dual service exclusion 9 applied where claim was based on insured’s filing of a petition in his capacity as president and owner of an uninsured entity]; Coregis Ins. Co. v. Larocca (E.D.Pa. 1999) 80 F.Supp .2d 452, 456

- 457 [exclusion 10 barred coverage because the allegations involved the attorney acting simultaneously as an attorney and a partner in a real estate business]; Coregis Ins. Co. v. Bartos, Broughal & DeVito, LLP (E.D.Pa. 1999) 37 F.Supp.2d 391, 3 92

- 395 [outside
business exclusion 11 barred coverage in a legal malpractice suit where allegations were that the attorney simultaneously acted as an attorney and an officer of an investment partnership]; Westport Ins. Corp. v. Hippo Fleming & Pertile Law O ffices (W.D.Pa. 2018) 349 F.Supp.3d 468, 481

- 483 [exclusion 12 barred coverage where complaint alleged

9 The exclusion provided the insurer “ ‘shall not pay Loss . . . (I) of an Insured Person based upon, arising from, or in any way related to such Insured Person ’ s servic e, at any time, as a director, officer, trustee, regent, governor, or equivalent executive or as an employee of any entity other than an Insured Entity. . . . ’ ” ( Palmer v. Twin City Fire Ins. Co. , supra , 2017 U.S. Dist. Lexis 190993, at *5.)

10 The exclus ion barred coverage for “any CLAIM arising out of an INSURED’S activities as an officer, director, partner, manager or employee of any company, corporation, operation, organization or association other than the NAMED INSURED.” ( Coregis Ins. Co. v. Larocca , supra , 80 F.Supp.2d at p. 454.)

11 Applying the same exclusion as in Coregis, Ins. Co. v. Larocca , supra , 80 F.Supp.2d at page 454 and others. ( Coregis Ins. Co. v. Bartos, Broughal & Devito, LLP , supra , 37 F.Supp.2d at p. 393.)

12 The exclusion provided “ [the Policy] shall not apply to any CLAIM based upon, attributable to, or directly or indirectly resulting from . . . any INSURED ’ S activities as an officer, director, partner, manager, or employee of any company, corporation, operation, organization, part nership, or association other than the NAMED INSURED or PRIOR FIRM, except as a member, director, or officer of any Bar Association, its governing board or any of its committees, or as a member of a formal accreditation,9

the insured committed legal malpractice and breach of contract by simultaneously acting as an attorney and a real estate developer].)
A law review article describes this type of capacity or outside services exclusion as follows: “Outside capacity exclusions apply where insured directors and officers commit otherwise covered wrongful acts, but do so in a capacity other than as a director
or officer of the i nsured corporation, so it has been held that a claim made against a director of the insured corporation, alleging that he committed wrongful acts while acting in his capacity as director of a subsidiary of the insured company, was enough to trigger
the exc lusion . . . .” (Annotation, Construction and Application of Exclusion Provisions of Directors and Officers Insurance Policy, Exclusive of Regulatory and Insured vs. Insured Exclusions (2008) 34 A.L.R.6th 345, italics added; see also Ragsdale v. Twin City Fire Ins. Co. (N.D.Ga., Feb. 2, 2007, No. 1:05

- cv

- 1118

- TCB) 2007 U.S. Dist. Lexis 111207, at *12 [“After careful review, it is apparent to the Court that outside capacity exclusions are designed to bar coverage in situations where a lawsuit alleges that
i ndividual insureds engaged in conduct as agents of an uninsured entity, rather than the entity to which the [directors’ and officers’] policy was issued”]; Niagara Fire Ins. Co. v. Pepicelli, Pepicelli, Watts & Youngs (3d Cir. 1987) 821 F.2d 216, 220

- 221 [ holding that an outside business exclusion bars coverage whenever a lawsuit arises from an attorney acting simultaneously as both an attorney and officer or director of an uninsured business, but concluding that the exclusion did not apply to the malpracti ce claim against the attorney because that claim did not result from the attorney acting in favor of outside business interests].)

ethics, peer review, licensing boar d, standards review, or similar professional board or committee related to the practice of law. ” ( Westport Ins. Corp. v. Hippo Fleming & Pertile Law Offices , supra , 349 F.Supp.3d at p. 476.)10

Because I find no merit in the remainder of Truck’s arguments and conclude exclusion No. 12 does not bar coverage, I would reverse the judgment in favor of Truck as to its duty to defend Carson.

/s/ Robie , J.