The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County
Honorable Stephen A. Schiller, Judge Presiding.
This declaratory judgment action reaches us for the second time. In our previous decision, we held that, under California law, defendant Hartford Accident and Indemnity Company, the insurer, had a duty to defend plaintiff W.C. Richards Company, Inc., the insured, in a matter initiated by a state environmental regulatory agency, i.e., the California Regional Water Quality Control Board (the Board). W.C. Richards Co. v. Hartford Accident & Indemnity Co., 289 Ill. App 3d 207 (1997) (W.C. Richards I). Accordingly, we reversed the trial court's order granting summary judgment to defendant and remanded the matter to the circuit court.
Subsequent to our decision in W.C. Richards I, the California Supreme Court, in a case of first impression, held that an order issued by a state environmental agency does not trigger an insurer's duty to defend, reasoning that, prior to the filing of a complaint, such administrative action is not a "suit" subject to the duty to defend. Foster-Gardner, Inc. v. National Union Fire Insurance Co., 18 Cal. 4th 857, 959 P.2d 265, 77 Cal. Rptr. 2d 107 (1998). Based on the holding in Foster-Gardner, defendant filed another motion for summary judgment and the trial court granted its motion.
The issue on appeal is whether defendant's duty to defend is governed by this court's previous decision in W.C. Richards I or by the subsequent decision of the California Supreme Court in Foster-Gardner. For all of the reasons that follow, we find that the California Supreme Court's decision controls and, thus, affirm the trial court's order granting summary judgment in favor of defendant.
We apply a de novo standard of review to a trial court's ruling on a summary judgment motion. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment is properly granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Outboard Marine Corp., 154 Ill. 2d at 102.
In the present appeal, there is no dispute as to the underlying facts, which are detailed in W.C. Richards I (289 Ill. App. 3d at 208- 10) and are not necessary for the legal question raised in the instant appeal. Moreover, the parties do not dispute that California law governs the disposition of this declaratory judgment action and do not dispute the substance of the contrary holdings by this court in W.C. Richards I and the California Supreme Court in Foster-Gardner. Instead, the fundamental dispute is which decision governs defendant's duty to defend in this case.
Plaintiff primarily asserts that the ruling in Foster-Gardner does not extinguish defendant's duty to defend because, at the time the duty arose, a contrary rule was in effect.
A basic tenet in our legal tradition provides that judicial decisions are generally given retroactive effect. Waller v. Truck Insurance Exchange, Inc., 11 Cal. 4th 1, 24, 900 P.2d 619, 631, 44 Cal. Rptr. 2d 370, 382 (1995); Gentis v. Safeguard Business Systems, Inc., 60 Cal. App. 4th 1294, 1305-06, 71 Cal. Rptr. 2d 122, 128 (1998) (and numerous cases cited therein); Sutherland v. Barclays American/Mortgage Corp., 53 Cal. App. 4th 299, 315, 61 Cal. Rptr. 2d 614, 624 (1997) (a California Supreme Court decision that overruled a prior state supreme court decision was applied retroactively to disallow the party's cause of action).
To the extent that the appeal before us may be considered procedural rather than substantive, we observe that Illinois law accords with California law on the issue of retroactivity. E.g., Miller v. Gupta, 174 Ill. 2d 120, 128 (1996) (judicial decisions apply retroactively to causes pending at the time they are announced); Lannom v. Kosco, 158 Ill. 2d 535, 538-39 (1994) (same); Forest Preserve District v. Pacific Indemnity Co., 279 Ill. App. 3d 728, 734 (1996) (retroactively applied a recent supreme court case).
Retroactivity applies where the judicial decision clarifies existing law and where the court "resolve[s] a conflict between lower court decisions, or address[es] an issue not previously presented to the courts. In all such cases, the ordinary assumption of retrospective operation takes full effect." Donaldson v. Superior Court, 35 Cal.3d 24, 36-37, 672 P.2d 110, 117, 196 Cal. Rptr. 704, 711 (1983).
"A decision resolving a conflict between lower courts does not represent a new standard or rule of law. Moreover, a conflict among the courts bars a claim of justifiable reliance because '[t]here was no clear rule on which anyone could have justifiably relied.'" Burckhard v. Del Monte Corp., 48 Cal. App. 4th 1912, 1917, 56 Cal. Rptr. 2d 569, 572 (1996), quoting People v. Guerra, 37 Cal.3d 385, 400, 690 P.2d 635, 644, 208 Cal. Rptr. 162, 171 (1984); Johnson v. Department of Corrections, 38 Cal. App. 4th 1700, 1710, 45 Cal. Rptr. 2d 740, 746 (1995); see Newman v. Emerson Radio Corp., 48 Cal.3d 973, 988-91, 772 P.2d 1059, 1068-71, 258 Cal. Rptr. 592, 601-04 (1989) (the strongest ground for creating an exception to the rule of retroactivity is the reliance of parties on the pre-existing state of the law).
Furthermore, where no established body of authority addressed the issue prior to the judicial decision enunciating a rule of law, retroactivity applies. Gentis, 60 Cal. App. 4th at 1306, 71 Cal. Rptr. 2d at 129.
In particular, a California court of appeal held that there was no duty to defend a complaint tendered by the insurer in 1990, relying on a California Supreme Court decision issued in 1992. Ticor Title Insurance Co. v. Employers Insurance of Wausau, 40 Cal. App. 4th 1699, 1713, 48 Cal. Rptr. 2d 368, 377 (1995). The court of appeal found it irrelevant that the supreme court had not rendered its decision until after the insurer ...