Judge: Stephen P. Pfahler, Case: 22CHCV00449, Date: 2023-10-13 Tentative Ruling

Case Number: 22CHCV00449    Hearing Date: October 13, 2023    Dept: F49

Dept. F-49

Date: 10-13-23 c/f 10-11-23

Case # 22CHCV00449

Trial Date: 11-13-23

 

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant, State Farm Mutual Automobile Insurance Company

RESPONDING PARTY: Plaintiffs, Natalie Mansour

 

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication

·         1st Cause of Action: Breach of Contract

·         2nd Cause of Action: Bad Faith

 

SUMMARY OF ACTION

On April 6, 2021, plaintiff Natalie Mansour obtained automobile insurance coverage for a 2020 Bentley Continental vehicle with defendant State Farm Mutual Automobile Insurance Company. On the same date, the vehicle was involved in an accident, thereby leading to a declaration of the vehicle as a “total loss.” Plaintiff alleges defendant failed to adequately adjust the claim, thereby leading to an underpayment of benefits due under the policy.

 

On June 17, 2022, and October 14, 2022, Plaintiff filed a complaint and first amended complaint for Breach of Contract, Insurance Bad Faith, and Professional Negligence. Defendant answered the first amended complaint on December 5, 2022.

 

RULING: Granted.

Defendant State Farm Mutual Automobile Insurance Company (State Farm) moves for summary judgment/Summary adjudication on the first amended complaint of Natalie Mansour as to the Breach of Contract and Bad Faith causes action. State Farm moves for summary judgment/summary adjudication on grounds of no breach or bad faith arising insufficient payment of policy benefits. Plaintiff in opposition maintain State Farm underpayment under the terms of the policy. State Farm in reply reiterates compliance with the policy terms, and maintains the opposition lacks any admissible evidence in opposition. State Farm also challenges the relied upon authority in opposition. Finally, State Farm notes the lack of any separate statement.

 

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)”  (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD., v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) Fire only remains named in the first cause of action for negligence in the second amended complaint based on the alleged failure of insurance agent Vivian Garcia to obtain sufficient coverage with Farmers Group, Inc. (Fire).

 

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.) 

 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).)  “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.”  (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).) 

 

State Farm maintains all payments follow policy guidelines, and in fact exceeded limits in certain part. The payment amounts are undisputed: $237,102.59 to the lien holder based on a $266,697 cash value for the vehicle, plus taxes and transfer fees for total valuation of $292,910.22 less prior payments of $54,807.63 and a $1,000 deductible; $267.89 for costs to the original body shop chosen by Plaintiff, but not approved by State Farm for work on Bentley vehicles; $1,450 in rental car expenses, which exceeded the $1,200 policy limit; and, $7,340 to Premier Collision Center, an authorized facility, where State Farm conducted its inspection of the vehicle before declaring it a total loss. Plaintiff presents no dispute to the payments, but contends the “delays” in the adjustment process caused by “needless” disassembly of the vehicle, while still requiring Plaintiff to make lease payments constitutes a basis of recoverable damages. The opposition lacks a responsive separate statement disputing any factual assertions, or any actual evidence articulating an amount of additional damages as a result of the delays in the adjustment process. The opposition solely relies on legal argument and citation to the unverified “complaint” (no identification of the first amended complaint).

 

1st Cause of Action: Breach of Contract

“‘While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply.’ (Citation.) ‘The principles governing the interpretation of insurance policies in California are well settled. “Our goal in construing insurance contracts, as with contracts generally, is to give effect to the parties' mutual intentions.”’ (Citation.) “‘Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Citation.) The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’ (Citation), controls judicial interpretation. (Citation.)’” (Citation) “‘If contractual language is clear and explicit, it governs.’”

 

“‘If the terms are ambiguous [i.e., susceptible of more than one reasonable interpretation], we interpret them to protect “‘the objectively reasonable expectations of the insured.’” (Citation.) This rule stems from the principle that “‘[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.’” (Citation.) “‘Only if these rules do not resolve a claimed ambiguity do we resort to the rule that ambiguities are to be resolved against the insurer....’ The ‘tie-breaker’ rule of construction against the insurer stems from the recognition that the insurer generally drafted the policy and received premiums to provide the agreed protection.” (Citation.) “[L]anguage in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract.... Courts will not strain to create an ambiguity where none exists. [¶] ‘The insured has the burden of establishing that a claim, unless specifically excluded, is within basic coverage, while the insurer has the burden of establishing that a specific exclusion applies.’ (Citation.) The principles of contractual interpretation, as applied to insurance policies ‘do not include using public policy to redefine the scope of coverage.’” (Inns-by-the-Sea v. California Mutual Ins. Co. (2021) 71 Cal.App.5th 688, 697–698.)

 

The court quotes the undisputed, relevant section of the policy:

 

“Supplementary Payments – Comprehensive Coverage and Collision Coverage

If the covered vehicle sustains loss for which we make a payment under Comprehensive Coverage or Collision Coverage, then we will pay reasonable expenses incurred to:

1. tow the covered vehicle immediately after the loss: a. for a reasonable distance from the location of the loss to any one repair facility chosen by an insured or the owner of the covered vehicle, if the covered vehicle is not drivable; or b. to any one repair facility or commercial storage facility, neither of which was chosen by an insured or the owner of the covered vehicle. We will also pay reasonable expenses incurred to tow the covered vehicle for a reasonable distance from this facility to any one repair facility chosen by an insured or the owner of the covered vehicle, if the covered vehicle is not drivable;

2. store the covered vehicle, if it is not drivable immediately after the loss, at: a. any one repair facility or commercial storage facility, neither of which was chosen by an insured or the owner of the covered vehicle; and b. any one repair facility chosen by the owner of the covered vehicle, and we determine such vehicle is a total loss. If the owner of the covered vehicle consents, then we may move the covered vehicle at our expense to reduce storage costs. If the owner of the covered vehicle does not consent, then we will pay only the storage costs that would have resulted if we had moved the damaged covered vehicle; and

3. clean up debris from the covered vehicle at the location of the loss. The most we will pay to clean up the debris is $250 for any one loss.

 

Limits and Loss Settlement – Comprehensive Coverage and Collision Coverage

1. We have the right to choose to settle with you or the owner of the covered vehicle in one of the following ways: (a) Pay the cost to repair the covered vehicle minus any applicable deductible. (1) We have the right to choose one of the following to determine the cost to repair the covered vehicle: (a) The cost agreed to by both the owner of the covered vehicle and us; (b) A bid or repair estimate approved by us; or (c) A repair estimate that is written based upon or adjusted to: (i) the prevailing competitive price; (ii) the lower of paintless dent repair pricing established by an agreement we have with a third party or the paintless dent repair price that is competitive in the market; or (iii) a combination of (i) and (ii) above. The prevailing competitive price means prices charged by a majority of the repair market in the area where the covered vehicle is to be repaired as determined by a survey made by us. If asked, we will identify some facilities that will perform the repairs at the prevailing competitive price. The estimate will include parts sufficient to restore the covered vehicle to its pre-loss condition. You agree with us that the repair estimate may include new, used, recycled, and reconditioned parts. Any of these parts may be either original equipment manufacturer parts or non-original equipment manufacturer parts. You also agree that replacement glass need not have any insignia, logo, trademark, etching, or other marking that was on the replaced glass. (2) The cost to repair the covered vehicle does not include any reduction in the value of the covered vehicle after it has been repaired, as compared to its value before it was damaged. (3) If the repair or replacement of a part results in betterment of that part, then you or the owner of the covered vehicle must pay for the amount of the betterment. (4) If you and we agree, then windshield glass will be repaired instead of replaced; b. Pay the actual cash value of the covered vehicle minus any applicable deductible. (1) The owner of the covered vehicle and we must agree upon the actual cash value of the covered vehicle. If there is disagreement as to the actual cash value of the covered vehicle, then the disagreement will be resolved by appraisal upon written request of the owner or us, using the following procedures: (a) The owner and we will each select a competent appraiser. (b) The two appraisers will select a third competent appraiser. If they are unable to agree on a third appraiser within 30 days, then either the owner or we may petition a court that has jurisdiction to select the third appraiser. (c) Each party will pay the cost of its own appraiser, attorneys, and expert witnesses, as well as any other expenses incurred by that party. Both parties will share equally the cost of the third appraiser. (d) The appraisers shall only determine the actual cash value of the covered vehicle. Appraisers shall have no authority to decide any other questions of fact, decide any questions of law, or conduct appraisal on a class-wide or class representative basis. (e) A written appraisal that is both agreed upon by and signed by any two appraisers, and that also contains an explanation of how they arrived at their appraisal, will be binding on the owner of the covered vehicle and us. (f) We do not waive any of our rights by submitting to an appraisal. (2) The damaged covered vehicle must be given to us in exchange for our payment, unless the owner chooses to keep it. If the owner keeps the covered vehicle, then our payment will be reduced by the value of the covered vehicle after the loss; or c. Return the stolen covered vehicle to its owner and pay, as described in 1.a. above, for any direct, sudden, and accidental damage that resulted from the theft.

2. The most we will pay for transportation expenses under Comprehensive Coverage is $25 per day subject to an aggregate limit of $750 per loss.

3. The most we will pay for loss to a non-owned trailer or a non-owned camper is $2,500.

 

Limits – Car Rental and Travel Expenses Coverage

1. Car Rental Expense

The limit for Car Rental Expense is shown on the Declarations Page under “Limit – Car Rental Expense – Each Day, Each Loss”. a. The limit shown under “Each Day” is the most we will pay for the daily rental charge. If: (1) a dollar amount is shown, then we will pay the daily rental charge up to that dollar amount; or (2) a percentage amount is shown, then we will pay that percentage of the daily rental charge. b. Subject to the “Each Day” limit, the limit shown under “Each Loss” is the most we will pay for Car Rental Expense incurred as a result of any one loss.

2. Travel Expenses

The most we will pay for Travel Expenses incurred by all insureds as a result of any one loss is $500.

3. Rental Car – Repayment of Deductible Expense

The most we will pay for Rental Car – Repayment of Deductible Expense incurred as a result of any one loss is $500. Nonduplication We will not pay for any loss or expense under the Physical Damage Coverages for which the insured or owner of the covered vehicle has already received payment from, or on behalf of, a party who is legally liable for the loss or expense.” [Colucci Decl., Ex. A: Comprehensive and Collision Coverage, pp. 20-22.]

 

The policy terms remain undisputed. [Declaration of David Colucci, Ex. A.] Plaintiff presents no argument of any ambiguity of any terms. The payment amounts also remain undisputed. [Declaration of Devin Burrow.] The vehicle was declared a loss and not repairable. State Farm determined the actual cash value of the vehicle at $266,697, plus $25,336.22 in taxes and $877 in transfer fees for total valuation of $292,910.22. State Farm deduced prior payments of $54,807.63, and a $1,000 deductible. Payment in the amount of $237,102.59 was made to the lien holder. [Burrow Decl., ¶¶ 10-12, Ex. H, J, K.] The $292,910.22 valuation exceeds the $264,720 identified vehicle valuation in the attached lease agreement by $28,640. [Burrow Decl., Ex. K.]

 

It’s not clear from the motion or opposition whether the payment satisfied the entire outstanding lease agreement obligation, which from the opposition appears as part of the core basis for the “valuation” dispute over the vehicle. Regardless, as provided in the terms of the contract, Plaintiff accepted the cash valuation based on the execution of the title transfer, even with a retrospective conditional, qualified acceptance by Jesse Cohen who otherwise lacked any prior recollection of the e-mail exchanges, and recall of any details over the valuation dispute by Plaintiff. [Declaration of Marlene Flores, Ex. A: Deposition of Jesse Cohen, 50:24-51:21; Ex. B: Deposition of Natalie Mansour, 21:10-19, 24:16-22.] As also established, State Farm complied with the rental car costs, and storage fee terms. Again, other than citation to three paragraphs in the “complaint,” the opposition lacks any factually supported dispute. The court therefore finds State Farm complied with all terms of the contract for valuation and payment of the vehicle, rental car, and storage fees with both vehicle repair facilities.

 

Plaintiff may not rely on allegations in the operative, unverified “complaint” in order to establish triable issues of material fact. (Committee to Save Beverly Highlands Homes Ass'n v. Beverly Highlands Homes Ass'n (2001) 92 Cal.App.4th 1247, 1260 [“Notwithstanding the strict construction given the moving party's evidence and the liberal construction given to that of the opposing party, the opponent has the burden of showing triable issues of material fact do exist; he or she may not rely on the pleadings”].) The court otherwise finds no legal support for any breach of the contract under any of the theories generally cited cases without pinpoint citation for the majority of the cases, or specific argument addressing the cases. (State Farm Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123; Pennsylvania General Ins. Co. v. American Safety Indemnity Co. (2010) 185 Cal.App.4th 1515; Truck Ins. Exchange v. County of Los Angeles (2002) 95 Cal.App.4th 13, 17; Campbell v. Cal-Gard Sur. Services, Inc. (1998) 62 Cal.App.4th 563; Thompson v. Cannon (1990) 224 Cal.App.3d 1413; Delos v. Farmers Group, Inc. (1979) 93 Cal.App.3d 642, 649.)

 

The court therefore finds Plaintiff fails to establish a viable basis for breach of contract, as alleged.

 

2nd Cause of Action: Breach of Covenant of Good Faith and Fair Dealing

Given the lack of a valid contract claim, the court also finds an invalid cause of action for bad faith. (McMillin Scripps North Partnership v. Royal Ins. Co. (1993) 19 Cal.App.4th 1215, 1222;  Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395; Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.)

 

The motion for summary judgment is GRANTED.

 

State Farm may submit a judgment to the court. The November 13, 2023, trial date is vacated.

 

Moving Defendant Fire to give notice.