Judge: Mark H. Epstein, Case: 23SMCV03731, Date: 2023-11-06 Tentative Ruling

Case Number: 23SMCV03731    Hearing Date: November 6, 2023    Dept: I

Defendant demurred on the theory that plaintiff was not insured under the policy in question.  Specifically, defendant contended that plaintiff alleged that it was a named insured but that plaintiff was in fact nowhere named in the policy.  Defendant argues that plaintiff was relying only on a certificate of insurance, which is not enough.  Of course, an insurer is under no duty to insure someone who is not insured under the policy, so the demurrer appeared to have some merit.

But a funny thing happened on the way to the forum.  One of the riders to the policy states that the policy covers any subcontractor where the subcontract requires that it do so.  Here, according to plaintiff, it falls within that provision.  That seems to answer the question.

Rather than file an “oops” reply, defendant doubled down and said that the demurrer should be sustained because the complaint alleges that the policy names plaintiff expressly, when it only does so impliedly.

The demurrer is OVERRULED.  The theory is now clear and no purpose other than needless busy-work would be served by requiring plaintiff to amend the complaint.  Defendant should have withdrawn the demurrer.

A quick word, though.  The court understands why the demurrer was brought.  Defense counsel read the policy too quickly and did not consider the rider, which did not expressly name plaintiff.  Defense counsel wrote to plaintiff’s counsel and set forth the theory of the demurrer.  In response, plaintiff provided a detailed legal analysis as to why the complaint was proper, but, oddly, it did not mention the rider.  While defense counsel suggested a call, plaintiff’s counsel responded in writing instead.  This was an adequate meet and confer, but unfortunately, it was really two ships passing in the night.

In any event, the demurrer is OVERRULED.  Defendant has 20 days to answer.