Judge: Craig Griffin, Case: Abdullah v. First American Home Warranty et al, Date: 2022-09-19 Tentative Ruling

The unopposed Demurrer filed by moving party Defendant Kinsale Ins. Co. (here “MP”) is SUSTAINED as to the entire Complaint. 

The Complaint lacks any charging allegations specific to any wrongdoing by MP: it appears that the entire basis for including MP in this suit is that it was the liability insurer for defendants Abe’s Plumbing Heating and Air, LLC and Abel Martinez when the “faulty work” at issue occurred. (See Complaint at ¶¶ 10, 18, and 19.)

The Complaint then asserts three causes of action, each of which asserts a type of negligence claim (negligence, gross negligence, and negligent hiring).  But a negligence claim may not be brought against a third party’s insurer. “[N]egligence is not among the theories of recovery generally available against insurers…” (Sanchez v. Lindsey Morden Claims Services, Inc. (1999) 72 Cal.App.4th 249, 254.)  Nor could an alternate theory of recovery be asserted against MP at present. An injured claimant has no right of recovery without proof that the insured was actually liable to the third party claimant. (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 304-308; Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 409 [insurer does not owe duty of good faith and fair dealing to third party claimant].)  Any claim by Plaintiff against MP is thus at best premature here.

Nor could an alternate theory of recovery be asserted against MP in this action. (See Ev. Code § 1155; Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 891 [a plaintiff may not sue both the insurer and the insured in the same suit: as purpose of Ev. Code § 1155 is to prevent prejudicial use of evidence of liability insurance in an action against an insured, a joint trial against the insured for negligence and against the insurer would violate both the letter and spirit thereof] overruled on other grounds by Moradi-Shalal, supra 46 Cal.3d 287; and Moradi-Shalal, supra, 46 Cal.3d at  313 [no private action may be brought under Ins. Code § 790.03(h) unless a final judicial determination of the insured's liability has been first obtained].)

The Demurrer is therefore SUSTAINED without  leave to amend, but without prejudice to any separate action which Plaintiff be able to properly commence against MP if this action proceeds to judgment in Plaintiff’s favor. 

Counsel for MPs to give notice.