Healy Tibbitts Construction Co., a Corporation v. Insurance Company of North America, a Corporation

The panel unanimously agrees that this case may be submitted without oral argument.

Healy Tibbitts Construction Company appeals from the grant of summary judgment in favor of its insurer, Insurance Company of North America. Healy assigns error to the trial court’s finding that the insurance policy exclusion precluded his recovery. He argues that 1) the barge was not within the policy exclusion, 2) failure to plead the exclusion as an affirmative defense waived the provision, and 3) failure to attempt settlement and delay in acting on the claim constituted bad faith. We affirm.

The insurance policy specifically excludes “water craft in the care, custody or control of the insured.” We have carefully reviewed the record, since we review construction of an insurance policy exclusionary clause de novo. The trial court’s finding on undisputed facts that Healy had control over the barge at the time of the damage and that its access to the barge was more than just temporary is the only conclusion supported by the record. See Home Indemnity Co. v. Leo L. Davis, Inc., 79 Cal.App.3d 863 , 145 Cal.Rptr. 158 (1978); and Kershaw v. Maryland Casualty Co., 172 Cal.App.2d 248 , 342 P.2d 72…