Pending - Other Pending
Contract - Insurance
TRUCK INSURANCE EXCHANGE
RUTTENBERG KENNETH GARY
MORIARTY DENIS JAMES ESQ.
4/13/2018: OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSE TO FORM INTERROGATORY 15.1
4/17/2018: REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES
4/24/2018: MOTION TO STAY ACTION PENDING APPEAL OF RELATED CASE NO. BC608113
4/26/2018: OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS; REQUEST FOR SANCTIONS
4/26/2018: Minute Order
4/27/2018: AMENDED NOTICE OF MOTION AND MOTION TO STAY ACTION PENDING APPEAL OF RELATED CASE NO. BC608113
4/27/2018: NOTICE OF RULING ON MOTION TO COMPEL FURTHER RESPONSE TO FORM INTERROGATORY NO. 15.1
4/30/2018: REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS
4/30/2018: OPPOSITION TO MOTION TO STAY CASE; RUTTENBERG DECLARATION
5/2/2018: REPLY IN FURTHER SUPPORT OF MOTION FOR STAY
5/10/2018: Minute Order
5/10/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
5/10/2018: NOTICE OF RULINGS AND STAY OF ACTION
5/10/2018: AMENDED NOTICE OF RULINGS AND STAY OF ACTION
7/3/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
7/9/2018: NOTICE OF ENTRY OF JUDGMENT OR ORDER
10/25/2018: Case Management Statement
11/8/2018: Minute Order
DocketNotice of Ruling; Filed by Truck Insurance Exchange (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 78; Case Management Conference - Held - Continued[+] Read More [-] Read Less
DocketMinute Order ( (Case Management Conference; Status Conference Re: Appeal)); Filed by Clerk[+] Read More [-] Read Less
DocketCase Management Statement; Filed by Truck Insurance Exchange (Defendant)[+] Read More [-] Read Less
DocketNotice (of Continued Case Management Conference); Filed by Truck Insurance Exchange (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 78; Case Management Conference - Held - Continued[+] Read More [-] Read Less
DocketMinute Order ((Case Management Conference; Status Conference Regarding Appeal)); Filed by Clerk[+] Read More [-] Read Less
DocketCase Management Statement[+] Read More [-] Read Less
Docketat 09:30 AM in Department 78; Jury Trial - Not Held - Advanced and Vacated[+] Read More [-] Read Less
DocketMinute order entered: 2018-08-07 00:00:00; Filed by Clerk[+] Read More [-] Read Less
DocketAnswer; Filed by Truck Insurance Exchange (Defendant)[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketOSC-Failure to File Proof of Serv; Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE[+] Read More [-] Read Less
DocketORDER TO SHOW CAUSE HEARING[+] Read More [-] Read Less
DocketComplaint; Filed by Harley Liker (Plaintiff); Alan Liker (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT FOR: (1) BREACH OF INSURANCE CONTRACT; AND (2) INSURANCE BAD FAITH[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketProof-Service/Summons[+] Read More [-] Read Less
Case Number: ****8770 Hearing Date: October 21, 2020 Dept: 78
harley liker, as Personal Representative for ALAN LIKER, Deceased;
TRUCK INSURANCE EXCHANGE,
October 21, 2020
[TENTATIVE] RULING RE:
defendant truck INSURANCE exchange’s motion for summary judgment
Defendant Truck Insurance Exchange’s Motion for Summary Judgment is DENIED.
This is an action for breach of an insurance contract and insurance bad faith. Plaintiff Harley Liker (“Plaintiff”) brings the present action as the Personal Representative for Alan Liker, deceased. The Complaint alleges as follows. Alan Liker (“Liker”) was married to Linda Liker (“Linda”). (Complaint ¶ 7.) Linda had a daughter named Melissa Komorsky (“Komorsky”). (Complaint ¶ 8.) On October 26, 2014, Linda was killed by an uninsured motorist. (Complaint ¶ 9.) At the time, Liker had a personal umbrella policy through Defendant Truck Insurance Exchange (“Truck”) whose uninsured motorist limit was $1,000,000. (Complaint ¶ 6.) Liker and Linda also had a Farmers automobile policy with an uninsured motorist limit of $250,000. (complaint ¶ 7.) On June 10, 2016, the superior court found that Komorsky was entitled to policy benefits under the Farmers policy (of the $250,000 limit), but that only Liker was covered under the Truck policy (with the $1 million limit). (Complaint ¶ 19.) Komorsky appealed this ruling and the ruling was affirmed on appeal. (Complaint ¶ 19.) The Complaint here alleges that Truck breached the covenant of good faith and fair dealing with Liker by withholding insurance benefits due to him under a spurious interpretation of his policy that included Komorsky as a beneficiary, thereby delaying payment under the umbrella policy until after Liker’s death, at which point Plaintiff could receive only economic damages. (Complaint ¶¶ 20–21.)
Plaintiff filed the Complaint in this action on July 17, 2017, alleging two causes of action:
Breach of Insurance Contract
Insurance Bad Faith
On May 10, 2018, the case was stayed pending the appeal filed by Komorsky in the Related Case No. BC608113.
On September 4, 2019, Defendant’s counsel reported that a remittitur had been issued in the Related Case.
On June 12, 2020, Truck filed the instant Motion for Summary Judgment.
On July 13, 2020, Plaintiff dismissed the First Cause of Action.
On October 7, 2020, Plaintiff filed an Opposition.
On October 16, 2020, Truck filed a Reply.
The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code ; 452, subds. (c) and (h).)
Truck seeks judicial notice of various court opinions and filings in judicial proceedings. These requests Nos. M-V are GRANTED as to their existence but not as to their truth, except the truth as to the results reached in the opinion. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)
Plaintiff objects to the Declaration of Helen Krapiva, offered in support of the Motion for Summary Judgment.
Objections Nos. 1-2, 3 (as to the first sentence), 4, 5, 6 (as to the second sentence), 7 (as to the portion after “Decoste”), 8 (as to the first sentence), 9 (as to the second sentence), 10 (as to the first sentence), 11 (as to the portion following “mediation”), 12 (as to the first sentence), 13, 14, and 15-23 are SUSTAINED. Objections No. 24-25 is MOOT.
motion for summary judgment
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. ; 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. ; 437c, subd. (f)(2).)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. ; 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau, supra, 68 Cal.App.4th at 166.)
Truck moves for summary judgment on all causes of action.
Facts of the Case as Alleged
The Complaint alleges that there was an insurance contract between Plaintiff decedent Liker and Truck, because Truck issued a personal umbrella policy to Liker for the policy period March 10, 2014 – March 10, 2015 (the “Umbrella Policy”) with a $1,000,000 uninsured motorist limit. (Compl. ¶ 6.) When Liker’s wife, Linda, was killed by an uninsured motorist in a traffic accident on October 26, 2014, the Umbrella Policy was in effect. (Compl. ¶ 9.) There was a dispute regarding who was the beneficiary of the Umbrella Policy, along with a separate automobile insurance policy issued by non-party Farmers Insurance Exchange (“Farmers Policy”), as between Liker’s daughter Komorksy and Liker. (Compl. ¶¶ 6-11.) Liker and Komorsky arbitrated and then mediated the dispute, but the case did not settle at mediation and Liker died on February 5, 2016 before the dispute was resolved. (Compl. ¶¶ 11-18.) Liker’s son, Harvey, became the personal representative of the estate of Liker by court order on February 19, 2016. (Compl. ¶ 18.)
The superior court found on June 10, 2016 that only Liker, and not Komorsky or anyone else, was entitled to benefits under the Truck Umbrella Policy. (Compl. ¶ 19.) The Complaint alleges that Truck breached the insurance contract and acted in bad faith because Truck denied and delayed paying insurance benefits to Liker “without any genuine dispute over who was an insured under the Umbrella Policy” despite Liker’s advanced age, heart congestion, and need for home-care assistance. (Compl. ¶ 21.) The Complaint alleges that Truck “forc[ed] [Liker] to defend litigation, engage in mediation, and incur substantial attorneys’ fees and costs to obtain a court ruling that Komorsky wasn’t an insured under the Umbrella Policy; and fail[ed] to interplead the $1 million policy limits despite promising on January 14, 2016 it would do so.” (Compl. ¶ 21.)
On July 13, 2020, Plainriff dismissed the First Cause of Action. Accordingly, only the Second Cause of Action remains.
Second Cause of Action – Insurance Bad Faith
Truck argues that the real issue in this case is that when Liker died, “his noneconomic damages died with, pursuant to the survival statutes” and that Liker’s estate had to settle for only recoverable economic damages that were less that Liker would have received had he lived.” (Motion at p. 6.) They contend that “Under the Estate’s view, every plaintiff who died in litigation would be entitled to the full measure of damages recoverable during life.” (Motion at p. 6.)
The Complaint for this Second Cause of Action, alleges that Truck violated Insurance Code section 11580.2, subdivision (a)(1) and “erroneously interpret[ted] the Umbrella Policy contrary to its clear language” by delaying and denying payment of “all covered losses Plaintiff has suffered and will suffer” and failing to interplead the $1 million policy limits. (Compl. ¶¶ 28-29.)
Insurance Code section 11580.2 is the uninsured motorist statue. This statue defines the term “insured” for purposes of uninsured motorist protection as follows: “ ‘named insured’ means only the individual or organization named in the declarations of the policy of motor vehicle bodily injury liability insurance referred to in subdivision (a); as used in subdivision (a) if the named insured is an individual ‘insured’ means the named insured and the spouse of the named insured and, while residents of the same household, relatives of either while occupants of a motor vehicle or otherwise, heirs and any other person while in or upon or entering into or alighting from an insured motor vehicle and any person with respect to damages he or she is entitled to recover for care or loss of services because of bodily injury to which the policy provisions or endorsement apply[.]” (Ins. Code, ; 11580.2.)
It is undisputed between the parties that Liker and Linda took out the Umbrella Policy, that the policy included uninsured motorist coverage, and that Linda was killed by an uninsured motorist. (UMF ¶¶ 1-3.) It is also undisputed that the court in Komorsky’s lawsuit found that Komorsky was not entitled to uninsured motorist coverage under the Umbrella Policy because she was not an “insured.” (UMF ¶¶ 30, 32; RJN, Exh. M (Komorsky v. Farmers Ins. Exch. (2019) 33 Cal.App.5th 960, 966-967).) It is also undisputed that that the court also found that section 11580.2 did not apply to the Umbrella Policy because it was an umbrella policy. (UMF ¶ 31.)
Truck’s primary argument is that, at the time when Liker sought to recover from his uninsured motorist coverage with Truck, “there was a genuine dispute whether Komorsky was covered under the Truck umbrella policy [which] is patently demonstrated by the fact that the trial court initially found that Komorsky was covered, issuing a tentative ruling in her favor.” (Motion at p. 16; DUMF ¶¶ 25-26.)
“The law implies in every contract, including insurance policies, a covenant of good faith and fair dealing. ‘The implied promise requires each contracting party to refrain from doing anything to injure the right of the other to receive the agreement's benefits. To fulfill its implied obligation, an insurer must give at least as much consideration to the interests of the insured as it gives to its own interests. When the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort.’” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720, as modified (Dec. 19, 2007).)
The relevant question in first first-party bad faith cases is not whether a decision made by the insurer as to coverage was right, but whether it was reasonable based on the facts known by the insurer at the time.
The test, sometimes referred to as the “genuine dispute” test, was explained in in Zubillaga v. Allstate Indemnity Company (2017) 12 Cal. App. 5th 1017, at 1028:
“When determining if a dispute is genuine, we do “not decide which party is ‘right’ as to the disputed matter, but only that a reasonable and legitimate dispute actually existed.” (Chateau Chamberay, supra, 90 Cal.App.4th at p. 348, fn.7, 108 Cal.Rptr.2d 776.) A dispute is legitimate, if “it is founded on a basis that is reasonable under all the circumstances.” (Wilson, supra, 42 Cal.4th at p. 724, fn. 7, 68 Cal.Rptr.3d 746, 171 P.3d 1082.) “This is an objective standard.” (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1237, 96 Cal.Rptr.3d 744.) “Moreover, the reasonableness of the insurer’s decisions and actions must be evaluated as of the time that they were made; the evaluation cannot fairly be made in the light of subsequent events that may provide evidence of the insurer’s errors. [Citation.]” (Chateau Chamberay, supra, at p. 347, 108 Cal.Rptr.2d 776.)”
Here, there are two issues for the genuine dispute test: (1) was the maximum amount of the Umbrella Policy actually payable; and if so, (2) to whom?
Plaintiff presents evidence that at least as of January 14, 2016, Truck knew that it should tender the policy limit. Truck and Farmers’ counsel wrote to Liker’s counsel: “my clients [Truck and Farmers] hereby tender their combined policy limits, a total of $1,250,000, inclusive of liens, globally to your clients. Please advise if you somehow reach an agreement as to the division of the policy proceeds between you [and Komorsky]. If we do not hear from you by the end of this month, we will interplead the money with the court.” (Ruttenberg Decl., Exh. G.)
Plaintiff also presents evidence that Truck was aware that Liker was in poor health and claims that a jury could reasonably find that Truck accordingly delayed impleading the funds to wait until after Liker’s death. (Ruttenberg Decl., ¶¶ 11-12.) Despite stating on January 14, 2016 that if Truck did “not hear from [Liker’s counsel] by the end of the month, we will interplead the money with the court,” Truck did not interplead the funds at the end of January 2016 and instead waited until after Liker died on February 5, 2016. (Ruttenberg Decl., Exhs. G-H; UMF ¶ 18.) On February 16, 2016, Truck’s counsel sent another letter regarding Liker’s Umbrella Policy, reconstruing the contents of the previous letter and arguing that the previous “offer” to interplead the policy payment was “not accepted” and that the money could not longer interplead the money because “Mr. Liker is no longer a claimant[.]” (Ruttenberg Decl., Exh. H.)
Code of Civil Procedure section 386 states the rules for interpleading funds. Under section 3886, subdivision (c), a party which interpleads funds is admitting that it no longer has any right to interest on those funds: “(c) Any amount which a plaintiff or cross-complainant admits to be payable may be deposited by him with the clerk of the court at the time of the filing of the complaint or cross-complaint in interpleader without first obtaining an order of the court therefor. Any interest on amounts deposited and any right to damages for detention of property so delivered, or its value, shall cease to accrue after the date of such deposit or delivery.” (Code Civ. Proc., ; 386(c).) Accordingly, Plaintiff argues that if Truck admitted that funds to the policy limits were to be either (a) tendered to Liker, or (b) interpleaded to the court, then Truck was admitting and acknowledging that it no longer had claim to the $1,250,000. At that point, the funds were owed by Truck and Farmers to Liker and/or Komorksy.
The Court finds that the January 14, 2016 letter from Truck and Farmers’ counsel to Liker’s counsel could reasonably support a finding by a jury that Truck knew before Liker’s death that it owed the proceeds of Liker’s $1,000,000 Umbrella Policy to someone. The only remaining question at that point was to whom the Umbrella Policy was owed (either Liker or Komorsky), but not whether the full amount of the Umbrella Policy was owed. The fact that Truck did not interplead the funds at the end of January 2013 as stated it would do in the January 14, 2016 letter, coupled with Truck’s knowledge of Liker’s poor health Trucks subsequent refusal to interplead the funds 11 days after Liker’s death, could further support a jury finding that Truck was aware that Liker was in poor health and that Truck’s did not interplead the funds to avoid paying-out the policy limit on the Umbrella Policy. This finding could support a conclusion that Truck violated the Covenant of Good Faith and Fair Dealing
Accordingly, there is a material issue of disputed fact which a jury must resolve.
The Motion for Summary Judgment is DENIED.
DATED: October 21, 2020 _____________________ _
Hon. Robert S. Draper
Judge of the Superior Court
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