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This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 03:13:19 (UTC).

NAVIGATORS SPECIALTY INSURANCE COMPANY VS. HANS KOSTRZEWSKI

Case Summary

On 04/19/2016 NAVIGATORS SPECIALTY INSURANCE COMPANY filed a Contract - Insurance lawsuit against HANS KOSTRZEWSKI. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is SHIRLEY K. WATKINS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4079

  • Filing Date:

    04/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SHIRLEY K. WATKINS

 

Party Details

Plaintiffs

NAVIGATORS SPECIALTY INSURANCE COMPANY

NAVIGATORS SPECIALTY INSURANCE COMPANY A CORPORATION

Defendants

DOES 1-10

HANS KOSTRZEWSKI GENERAL CONTRACTORS

KOSTRZEWSKI HANS

HANS KOSTRZEWSKI GENERAL CONTRACTORS INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

SALLANDER ROBERT LEE JR

 

Court Documents

Civil Case Cover Sheet

4/19/2016: Civil Case Cover Sheet

Summons

4/19/2016: Summons

Notice of Rejection

10/4/2016: Notice of Rejection

Proof of Service of Summons and Complaint

10/13/2016: Proof of Service of Summons and Complaint

Unknown

10/17/2016: Unknown

Notice of Rejection

11/7/2016: Notice of Rejection

Notice of Rejection

11/23/2016: Notice of Rejection

Request for Entry of Default / Judgment

11/23/2016: Request for Entry of Default / Judgment

Unknown

12/30/2016: Unknown

Unknown

12/30/2016: Unknown

Unknown

4/19/2017: Unknown

Unknown

4/19/2017: Unknown

Minute Order

10/11/2017: Minute Order

Case Management Statement

9/10/2018: Case Management Statement

Minute Order

9/13/2018: Minute Order

Unknown

11/5/2018: Unknown

Case Management Statement

1/4/2019: Case Management Statement

Minute Order

1/7/2019: Minute Order

53 More Documents Available

 

Docket Entries

  • 05/17/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion for Leave (to serve California Secretary of State)

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  • 05/17/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Status Conference (rePersonal Representative Substitution from Probate) - Held - Continued

    Read MoreRead Less
  • 05/17/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 05/17/2019
  • Minute Order ( (Status Conference re: Personal Representative Substitution ; ...)); Filed by Clerk

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  • 05/16/2019
  • Case Management Statement; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

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  • 04/10/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 04/10/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Status Conference (rePersonal Representative) - Held - Continued

    Read MoreRead Less
  • 04/10/2019
  • Minute Order ( (Case Management Conference; Status Conference re: Personal Re...)); Filed by Clerk

    Read MoreRead Less
  • 04/08/2019
  • Case Management Statement; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

    Read MoreRead Less
  • 01/07/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
76 More Docket Entries
  • 10/04/2016
  • Request for Entry of Default / Judgment; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

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  • 09/13/2016
  • Proof of Service; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

    Read MoreRead Less
  • 09/06/2016
  • at 08:30 AM in Department T; Case Management Conference (Conference-Case Management; OSC-Set) -

    Read MoreRead Less
  • 09/06/2016
  • Minute order entered: 2016-09-06 00:00:00; Filed by Clerk

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  • 05/18/2016
  • Proof of Service of Summons and Complaint; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

    Read MoreRead Less
  • 05/18/2016
  • Proof of Service of Summons and Complaint; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

    Read MoreRead Less
  • 04/19/2016
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 04/19/2016
  • Summons; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

    Read MoreRead Less
  • 04/19/2016
  • Complaint; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

    Read MoreRead Less
  • 04/19/2016
  • Civil Case Cover Sheet; Filed by Navigators Specialty Insurance Company, a Corporation (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: LC104079    Hearing Date: January 29, 2021    Dept: T

NAVIGATORS SPECIALTY INSURANCE COMPANY,

Plaintiff,

vs.

HANS KOSTRZEWSKI; et. al.

Defendants.

CASE NO: LC104079

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY JUDGMENT

And MOTION FOR SUMMARY ADJUDICATION OF ISSUES

Dept. T

8:30 a.m.

January 29, 2021

[TENTATIVE] ORDER:

1. The Motion for Summary Judgment and the alternative Motion for Summary Adjudication are DENIED.

2. Evidentiary objections are ruled on by separate order. Plaintiff Navigators Specialty Insurance Company’s “Reply to Defendants Objections to Evidence” filed on January 22, 2021 was reviewed and it does not change the Court’s January 21, 2021 ruling on Defendants’ evidentiary objections to Plaintiff’s evidence.

INTRODUCTION

Plaintiff Navigators Specialty Insurance Company (“Plaintiff”) moves for summary judgment or, alternatively, summary adjudication on their Second Amended Complaint (“SAC”) filed on 2/26/2020 against Defendants Hans Kostrzewski General Contractors, Inc. (“Corporation”) and Carol Kostrzewski as the personal representative of the Estate of Hans Kostrzewski (“Estate”) (collectively referred to as “Defendants.”) The motion for summary adjudication seeks adjudication as to each of the five Causes of Action (“COA”) alleged in the SAC. The first two COAs in the SAC seek declaratory relief against the Estate. The last three COAs in the SAC seek declaratory relief against the Corporation.

EVIDENTIARY OBJECTIONS

Concerning the “Reply to Defendants’ Objections to Evidence”; the issue of what Ms. Vaquerano relied on is not an issue in this motion. This is not a bad faith case. There is no issue in this motion about whether the Plaintiff’s determination to reserve rights, pay or not pay were reasonable. The issue is what evidence there is to support: what were the claims made, what claims were paid, were the paid claims covered or not, and how much was paid on the non-covered claims. Ms. Vaquerano’s decision making does not affect the issues for the court to decide in this case. Similarly, what the underlying defense or coverage attorneys reported do not prove anything other than what they told the insurance company. Again, the issue is what claims were made, what claims were paid, were the claims paid covered or not and how much was paid on the non-covered claims. Therefore, whether or not Ms. Vaquerano relied on the reports of the defense counsel does not prove the facts needed to obtain summary judgment in this case. The reports by defense counsel to Plaintiff do not prove their contentions, opinions and assertions as a matter of law. They only prove what was told to Plaintiff, not that what they told Plaintiff was true. Otherwise, a defense counsel would merely need to send a letter to an insurance company stating the underlying plaintiff claims have no merit and then, after settlement, the insurance company could used that letter to prove as a matter of law that the claims had no merit. That is a bootstrap argument; it is not the law.

DISCUSSION

The court starts its analysis with the essence of this case. There are five causes of action in the SAC. In order to prevail on the summary judgment motion, Plaintiff must establish by admissible evidence that each and every element of the five causes of action plus damages is undisputed in order for summary judgment to be granted. As indicated below, because there are triable issues of material fact, the summary judgment motion must fail.

The law is well-established as to the plaintiff’s burden in moving for summary judgment. “In moving for summary judgment, a plaintiff . . . has met his burden of showing that there is no defense to a cause of action if he has proved each element of the cause of action entitling him to judgment on that cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto’... All that the plaintiff need do is to ‘prove each element of the cause of action.’ (Code Civ. Proc., § 437c, subd. (o)(1).)” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 835, 843, 849. (Emphasis added.) Once a single triable issue of material fact occurs, the entire MSJ is denied.

Similarly, in each summary adjudication request, Plaintiff must establish every element of each cause of action plus damages by admissible evidence as a predicate to the shifting of the burden of proof. Plaintiff having failed to meet this burden, the request to summarily adjudicate each cause of action similarly fails and the burden does not shift to the Defendants. If there is one triable issue of material fact in each cause of action, the motion as to that cause of action must fail.

Finally, the court reviews the case in light of the often stated policy of the State of California that the law favors resolution of a case on the merits after presentation to the trier of fact rather than by summary determination.

The court’s analysis, therefore, necessarily starts with the SAC and its allegations, as those are the factors which determine what Plaintiff is required to prove in this motion.

The general allegations of the unverified SAC discuss the events leading up to the settlement of Opperman v. Kostrzewski, LASC Case. No. SC118864 (the “Underlying Action.) It is notable that the plaintiff did not request the court to take judicial notice of any part of the Underlying Action. As a result, the Underlying Action is “unknown” to this court for the purpose of analyzing this motion, including the date of filing, the date of resolution, the complaint or the allegations of that complaint. The court will not now allow here a late request for judicial notice. Accordingly, as the SAC is unverified, in the absence of admissible evidence of the “facts” set forth in paragraphs 1-72 of the SAC, those facts (in paragraphs 1-72) are not proven to be true.

A. First COA Against the Estate and Third COA against the Corporation:

In the First and Third COAs, Plaintiff seeks a declaration of its rights and duties under the Navigators Policy (“Policy”) and an order that Plaintiff is entitled to reimbursement from Estate and the Corporation for the sums paid under the Policy to settle the Opperman’s claims that are not covered under the Policy. “In an action for declaratory relief...a motion for summary judgment is an appropriate proceeding to declare the rights of the parties if they can be determined as a matter of law.” Arroyo v. Regents of University of California (1975) 48 Cal.App.3d 793, 796. (Emphasis added.)

Accordingly, Plaintiff asks that the court make a determination that the settlement sums paid under the Policy were for claims which are not covered under the Policy. In determining whether the sums were for claims which were not covered under the Policy, the court, therefore, must determine:

- what were the claims made in the Opperman case

- what claims were settled in the Opperman case

- whether the settled claims were covered under the Policy

- how much was paid for non-covered claims and how much Defendants must pay to reimburse Plaintiff

A determination about what claims were made and what claims were settled is a factual determination. The court reviews the facts presented by Plaintiff to assess whether those facts have been proven by admissible evidence as a matter of law. Every fact supporting the MSJ must be stated in the separate statement with supporting evidence. CRC 3.1350(d) states, in pertinent part:

(d)(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

(2) The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.

The prayer for relief asks the court to determine that some or all of the claims are not covered and for reimbursement of money paid for those claims which are not covered. The specific amount of the settlement and how much of the money was paid for non-covered claims is not proven by the motion. This, alone, is grounds for denial of the MSJ (i.e., failure to prove every element of Plaintiff’s case, here, the exact amount of the damages.)

The court finds that the separate statement does not set forth facts supported by evidence as to what claims were made in the Underlying Action. First, Plaintiff did not seek judicial notice of the Complaint in the Underlying Action. The only mention of what was alleged in the Underlying Action is in the Declaration of Lourdes Vaquerano at paragraph 2 in which she states “..the Opperman’s alleged that the work done on their home by Defendants damaged their home and caused the Oppermans to suffer economic damage...” and in the Declaration of Lourdes Vaquerano at paragraph 6 in which she states, without any supporting evidence, that “[b]y August of 2014, the Oppermans had specified that their alleged damages were approximately “$1.6 million...comprised of...” and then follows what she claims the Oppermans claimed. Ms. Vaquerano’s declaration also attaches the Complaint in the underlying action. Ms. Vaquerano cannot authenticate a pleading by a different party in a different lawsuit. The Complaint contains hearsay and there is no foundation for attaching the document as the Complaint. Additionally, the personal analysis of the Complaint in the Underlying Action by Ms. Vaquerano is irrelevant to this court. Moreover, she does not allege personal knowledge that there were no other allegations made by the Oppermans, either in declaration, pleadings, depositions or discovery responses. Finally, the Complaint in the Underlying Action is not stated to be verified. There is no evidence of what “the work done on their home” (Decl. of Ms. Vaquerano at paragraph 2) means. Because there is a triable issue of fact as to what the claims were in the Underlying Action, the MSJ and MSAI must be denied in their entirety.

Plaintiff further asserts that the submitted evidence supports the contention that the claims against Defendants do not fall within the definition of “occurrence.” In support of this contention, Plaintiff again cites to Ms. Vaquerano’s Declaration, specifically ¿¿7-16 & 18-22, as well as the declaration of Craig Knickerbocker ¿¿4-5. Preliminarily, it is noted that Mr. Knickerbocker’s declaration only attests to the fact that the original contractor installed the precast stone in a workmanlike manner and Defendants’ drilling of screws caused holes in the waterproofing membrane. (Mr. Knickerbocker Decl. ¿¿4-5.) Mr. Knickerbocker’s declaration makes no reference to any alleged misrepresentations made by Defendants or recommendations by Defendants to sue the builder for negligently installing the precast stone. Because Mr. Knickerbocker’s declaration does not attest to the alleged representations made by Defendants, this testimony does not support the motion.

As to reliance upon Ms. Vaquerano’s declaration, again, the Court sustained the evidentiary objections levied against her declaration ¿¿7-16, 18-22. Without admissible evidence, Plaintiff’s contention that the claims against Defendants do not fall within the definition of “occurrence” is unpersuasive. The court finds that the inherent nature of this case requires factual determinations by the trier of fact.

The court, however, continues its analysis. Plaintiff must establish by admissible evidence “what claims were paid” in the Underlying Action. This is in order for the determination to be made that the “claims paid” were “not covered” and should be repaid. There is no evidence presented of “what claims were paid” and why those claims were “not covered.” The Settlement Agreement in the Underlying Action, attachment D to the Declaration of Ms. Vaquerano recites the intent of the parties in reaching the settlement:

“It is now the intent of the SETTLING PARTIES to resolve any and all past, present or future claims, demands, losses, damages, written contracts, costs, attorneys’ fees, actions, causes of action and liabilities of whatever kind and nature, whether known or unknown, suspected or claimed, investigated or not investigated, involving the claims and defenses as alleged in the ACTION. All terms oft his AGREEMENT are to be construed so that their meaning will effectuate this intent.”

“As more fully set forth below, all SETTLING PARTIES shall release and waive

all claims, demands, actions past, present and future, including any and all lien claims, reimbursement or rights to credits against each of the SETTLING PARTIES relating to the claims and defenses as alleged in the ACTION.”

“SETTLING PARTIES, on behalf of themselves, their assigns and successors-in-interest, do hereby fully and forever completely release, acquit and discharge all other SETTLING PARTIES, their assigns, owners, employees, agents, subcontractors, successors, predecessors, representatives, attorneys, and insurers, from any and all claims, demands, losses; damages, written contracts, casts, attorney' fees, actions, causes of action, and liabilities of whatever kind and nature, whether known or unknown, suspected or claimed, which arise from the claims and defenses as alleged in the ACTION.”

But what do these statements mean? For instance, what was being released in the settlement agreement may be broader that what was being claimed in the case. Does this mean that some of the settlement sums were paid for potential future claims or for claims not made? In order to determine what claims were being settled, the court would need to receive evidence in support of and against the positions taken by the parties, and weigh that evidence to decide the issue. The court cannot say as a matter of law that it is definitive from the evidence in support of the motion as to what claims were made, what claims were paid, what claims paid were not covered and how much should be reimbursed. The motion for summary judgment and adjudication of the First and Third COA are denied.

B. Second COA against the Estate, the Fourth COA against Corporation and the Fifth COA against Corporation:

There is no specific bases for these causes of action stated in their titles. However, the substance of these COAs is that there is no coverage of the Opperman’s claims for $140,000 in damages spent to prosecute a failed claim against the builder of their home,$400,000 spent to contract with the Defendants to attach the concrete precast faux stone, and $1 million required to replace the waterproof membranes because those “sums were not paid as damages” under the property damage clause of the Policy.

Plaintiff seeks an order that the Plaintiff is entitled to reimbursement of sums paid under the policy to settle claims that are not covered under the policy.

First, there was no admissible evidence that the payment by Plaintiff to settle the Opperman’s claims included claims for $140,000, $400,000 and $1 million. The “evidence” is a declaration by Ms. Vaquerano that she was “told” by the defense attorneys in the Underlying Action that those claims were being made. However, there is a difference between stating that the claims are being made and proving that those claims were actually made. Just because the defense counsel said it, does not make it so, especially since the underlying evidence in support of what defense counsel said and why are not part of the record here. While Ms. Vaquerano’s declaration may be admissible to prove what she was told, and perhaps to allow her to rely on what she was told to make certain decisions, her declaration is insufficient to prove that those claims were made. Using Ms. Vaquerano’s declaration as a shortcut to prove the facts of the Underlying Action is insufficient to meet Plaintiff’s burden of proof. In order to succeed on this MSAI, Plaintiff would need to prove what the claims were, what claims were paid, that the claims paid were not covered under the policy and how much is to be reimbursed. Moreover, the court notes that there is a substantial disparity between what the alleged claims total and the amount actually paid. There is no evidence as to whether the payment was intended only for covered claims or whether the payment was intended to pay non-covered claims, nor whether the amount paid has any reasonable relationship to the claims “made” or “covered.” The evidence presented by plaintiff does not resolve this issue. The motions as to the Second COA, Fourth COA and Fifth COA are denied.

CONCLUSION

In light of this ruling, the request for continuance is moot. The MSJ and MSAI are both denied.

IT IS SO ORDERED, ____________________ TO GIVE NOTICE.

______________________________________________________________________________

THIS ORDER HAS BEEN ENTERED AND SERVED ON COUNSEL ON 1/20/2021.  IT IS PUBLISHED HERE IN CASE THE ORDER IS NOT RECEIVED BY COUNSEL PRIOR TO THE HEARING.

NAVIGATORS, et al. Case No. LC104079

Plaintiff,

v. RULING ON DEFENDANTS’ OBJECTIONS TO

EVIDENCE FILED ON 1/15/2021

HAN KOSTRZEWSKI, et al.,

Defendants. Hearing on MSJ: 1/29/2021

_______________________________________________________________________

The court has reviewed the objections which are entirely as to the Declaration of Lourdes Vaquerano.

Objection to paragraph 6: Sustained. Hearsay, lacks foundation.

Objections to paragraphs 7-15, 19-22: Overruled. The declaration of Lourdes Vaquerano at paragraphs 7-15 are not being offered for the truth of the matters stated. They are offered for the purpose of explaining her testimony in paragraph 17, e.g., the basis for Navigator’s decision to pay $575,000 “to resolve the Opperman’s claims against Kostrzewski.” The court notes, however, that to the extent that there was an intention to establish that facts set forth in the defense counsel’s “reports” are true, the objections are sustained as hearsay and lack of foundation.

Objection to paragraph 16: Overruled as to Exhibit D only. Sustained as to all else. Hearsay, lacks foundation.

Objection to paragraph 18: Sustained, hearsay, lacks foundation.

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