Case Number: BC672637 Hearing Date: February 11, 2020 Dept: 27
[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY ADJUDICATION
- INTRODUCTION
On August 18, 2017, plaintiff Raul Hernandez Medina filed this action against defendant Marcos Ramirez Contreras for negligence arising from a two-vehicle automobile collision. The collision occurred on October 13, 2016. At the time of the collision, Defendant was insured through Access General Insurance Company (“Access General”). However, a liquidation order for Access General was filed by the Texas Department of Insurance on March 13, 2018, causing California Insurance Guarantee Association (“CIGA”) to take over defense for Defendant in this action.
Defendant moved for summary adjudication, arguing that Plaintiff was insured at the time of the accident and his insurance policy through Farmers Specialty Insurance Company (“Farmers”) provides uninsured motorist coverage which must be exhausted before CIGA is responsible for paying claims. Defendant seeks a ruling that this action is not a covered claim and that Farmers breached its duty to Plaintiff.
- DISCUSSION
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)
Defendant cites no law holding that the Court can decide on summary adjudication the issue whether Plaintiff’s claim is considered a covered claim under the Insurance Code. Defendant tries to frame it as a question of whether CIGA has a duty to cover Plaintiff’s claim, but CIGA is not a defendant here. Code of Civil Procedure section 437c, subdivision (f)(1) allows summary adjudication if the moving party contends “that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” Defendant’s motion does not seek a determination that he did not owe a duty to Plaintiff. Therefore, this motion is improper under section 437c, subdivision (f)(1).
Defendant also argues that the Court should find that Plaintiff’s insurance carrier, Farmers, should not have denied uninsured motorist coverage to Plaintiff and in fact breached its duty to Plaintiff by coverage. Farmers is not a party to this lawsuit. The Court cannot make an order finding a non-parties who has not been given notice and is not subject to the Court’s personal jurisdiction (because it was not served with a complaint and summons) liable for a breach of duty. Such a holding would violate Farmers’ fundamental due process rights. The proper remedy, if Plaintiff believes Farmers is not acting in good faith and had no basis for denying Plaintiff’s uninsured motorist claim, is for Plaintiff to pursue litigation against Farmers. (See, e.g., Romano v. Mercury Ins. Co. (2005) 128 Cal.App.4th 1333, 1336.)
Further, Defendant’s argument that the accident is covered by Plaintiff’s uninsured motorist insurance through Farmers is not supported by the evidence. Undisputed Material Fact No. 7 contends that the Farmers policy lists Plaintiff as an additional insured and refers to the personal auto declaration attached to the Declaration of Jonathan Barmasse. But the attached Farmers’ Personal Auto Declaration does not identify Plaintiff as an additional insured driver. It lists Mirna Garcia, Valentin Rosario, and Veronica Alvarez as “Named Insured,” and Felix Hernandez and Carla Garcia as “Additional Drivers on Policy.”
III. CONCLUSION
In light of the foregoing, the motion for summary adjudication is DENIED.
Moving party to give notice.