EMPLOYERS REINSURANCE COMPANY et al., Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
Thorpe Insulation Company, Real Party in Interest.
Court of Appeal of California, Second District, Division Three.https://leagle.com/images/logo.png
April 3, 2008.
As Modified April 22, 2008.
Attorney(s) appearing for the Case
Simpson Thacher & Bartlett, Barry R. Ostrager, Deborah Lynn Stein, Robert Pfister, Los Angeles; Craig & Winkelman and Bruce H. Winkelman, Berkeley, for Petitioner Employers Reinsurance Company.
Grippo & Elden, Todd C. Jacobs and John E. Bucheit, for Petitioner Transcontinental Insurance Company.
Carroll Burdick & McDonough, Sarah M. Shields and Robert A. Binion, San Francisco, for Petitioner Transcontinental Insurance Company.
Kaufman & Logan, Peter J. Logan, Emme Thompson, San Francisco, Randall P. Berdan; Lind, Jensen, Sullivan & Peterson, Ted E. Sullivan, Thomas D. Jensen, Laurie Meyer; Crowell & Moring and Steven P. Rice, Irvine, for Petitioner Chicago Insurance Company.
Nixon Peabody, John H. Riddle, Robert P. Kavanaugh, San Francisco, and Alan S. Feiler, for Petitioner Maine Bonding and Casualty Company.
Selman Breitman, Holly Burgess and Jeffrey C. Segal, Los Angeles, for Petitioner Middlesex Insurance Company.
Harrington, Foxx, Dubrow & Canter, Kevin P. McNamara, Los Angeles; Traub, Eglin, Lieberman Strauss and Meryl R. Lieberman, for Petitioner Associated International Insurance Company.
O'Melveny & Myers, Richard B. Goetz, Steven H. Bergman, Los Angeles; Berman & Aiwasian and Alan S. Berman, Los Angeles, for Petitioners Motor Vehicle Casualty Company and Central National Insurance Company of Omaha.
Litchfield Cavo, Glendale, Edward D. Vaisbort and G. David Rubin, for Petitioner Argonaut Insurance Company.
Tressler, Soderstrom, Maloney & Priess, Katherine K. Liner and Adam C. Hackett, Costa Mesa, for Petitioner Allstate Insurance Company.
Gordon & Rees, Matthew S. Foy and Arthur Schwartz for Petitioners Granite State Insurance Company and National Union Fire Insurance Company of Pittsburgh, PA.
Frederick Bennett, Los Angeles, for Respondent.
Morgan, Lewis & Bockius, Michel Y. Horton, Charles J. Malaret, Martina Bernstein and Thomas M. Peterson for Real Party in Interest Thorpe Insulation Company.
Court of Appeal of California, Second District, Division Three.
CROSKEY, J.
In this case, we consider the use of "course of performance" evidence in the interpretation of contracts of insurance and conclude that such evidence is relevant and may be used for such purpose. However, such evidence is only admissible when the performance was pursuant to the contract to be interpreted, not a subsequent settlement agreement such as the one we have in this case.
Thorpe Insulation Company ("Thorpe"), a distributer and installer...
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