|
View Case
|
|
Cited Cases
|
|
Citing Cases
|
|
Comment (0)
|
 |
|
|
|
|
|
|
|
TRANSPORT INS. CO. v. TIG INS. CO.
202 Cal.App.4th 984 (2012)
Court of Appeals of California, First District, Division Two.
January 13, 2012.
Transport's LawsuitsOn January 26, 2006, Transport filed a complaint against TIG, followed four days later by a complaint against Seaton. Both complaints alleged two causes of action, for declaratory relief and breach of contract, based on the respective reinsurer's failure to pay its proportionate share of the Aerojet settlement. TIG filed its answer on March 7, 2006, Seaton on April 10. Both asserted the affirmative defense that Transport's claims were barred by the four-year statute of limitations applicable to breach of contract claims. (Code Civ. Proc., § 337, subd. 1.) The actions were later consolidated. The Motions for Summary Adjudication and Summary JudgmentOn April 27, 2007, Transport filed motions for summary adjudication, the first against TIG, the second against Seaton. The motions were addressed to the affirmative defenses, and argued that as a matter of law Transport's claims were not barred by the four-year statute of limitations for contract claims. Transport's brief describes its motions this way: "As authority, Transport cited (and quoted extensively from) Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 693 [274 Cal.Rptr. 387, 798 P.2d 1230] and Forman v. Chicago Title Ins. Co. (1995) 32 Cal.App.4th 998, 1003-1004 [38 Cal.Rptr.2d 790], which hold that the statute of limitations is tolled during the time an insurer is investigating a first party insurance claim." Significantly, in its motions below Transport also cited Stronghold, a citation not mentioned in its brief to us. And as to Stronghold, Transport said that the court there observed "that, as a general matter, New York law requires both (a) a demand for payment and (b) either a `rejection' of that demand or lapse of a reasonable time for payment."
TIG and Seaton filed opposition to Transport's motions, and also their own motions, each seeking summary judgment based on the statute of limitations defense. These motions also cited Stronghold. So, too, did Transport's opposition to the reinsurers' motions and its reply on its own motion. For example, its opposition to Seaton's motion said "that Stronghold, the only reinsurance case dealing with the issue—is fully consonant with California law, and fully supports Transport's position." "Seaton [argues] there were two possible dates for accrual under New York law, the first being when the reinsurer denied coverage, and the second being after a reasonable period of time after a claim is submitted. [¶] Seaton's position is squarely contradicted by controlling California law. Stronghold is fully consonant with Prudential-LMI[, supra, 51 Cal.3d 674] to the extent each case teaches that the limitations period does not run during the claims process, and only commences or reactivates [when] the insurer has formally and unequivocally denied the claim."
1. Ario v. Underwriting Members of Lloyd's of London (Pa.Commw.Ct. 2010) 996 A.2d 588, 597, the case cited to us by Transport after the briefing was closed, describes Stronghold similarly: "In Continental Casualty, where the policy established that loss covered under the policy must be reported to the reinsurer `as soon as practicable,' the court concluded that the insurer's cause of action for payment did not arise until notice of loss was provided to the reinsurer and the reinsurer was afforded a reasonable time in which to decide whether and how much it would pay."
2. In fact, the claimed reasons for Transport's overlength reply brief are that the reinsurers' respondent's briefs do not accurately recite the evidence and cite "irrelevances," and that because the primary issue is "whether the trial court committed instructional error, Transport is entitled to view and present the trial evidence in the light most favorable to the claim of instructional error."
3. At trial, Nalepa testified as follows: "I, quite frankly, to this day don't know what Transport was doing with [its collection efforts] and who had the responsibility at their end."
4. Seaton requests judicial notice of material it asserts might be germane, and TIG's brief also mentions this. We deny the request for judicial notice.
5. According to Transport, this and the earlier draft complaint are of no significance because they were for declaratory relief only and did not contain a cause of action for breach of contract.
6. Focusing on Judge Woolard's comments in her tentative ruling, and that her subsequent order did not contain what she said, Transport's brief says things such as this: "[T]he trial court did not expressly address the equitable tolling issue in its written rulings, but clearly ruled against Transport on this issue because it did not include equitable tolling in the rule it ultimately adopted, despite Transport's detailed argument on this point in its moving papers. [Citations.] ... Given that, in its tentative ruling, the trial court indicated it would apply equitable tolling [citation] but, after hearing TIG's arguments on this issue [citations], it excluded equitable tolling from its written ruling, we would ... argue that the trial court unquestionably `determined that equitable tolling should not apply.'" As will be shown, this is an overstatement.
7. TIG's proposed instruction would have told the jury: "TIG contends that Transport filed this lawsuit too late. To establish this defense, TIG must prove that this action was not commenced within four years of the date on which the claim sued on arose. You must decide when the claim arose, that is when TIG failed to pay the amounts allegedly due under the terms and conditions of [policies] FR 297 and FR 298. If TIG's failure to pay the alleged amounts due took place before January 26, 2002, Transport's lawsuit was filed too late and is barred by the statute of limitations."
8. As indicated, Transport's opening brief referred to its reply in support of its new trial motion, which contained an argument that Judge Woolard's ruling was "law of the case." TIG took issue with this, and Transport's reply brief concedes that law of the case could not pertain, as the doctrine "has no application in trial court proceedings without an appellate decision. (People v. Barragan (2004) 32 Cal.4th 236, 246 [9 Cal.Rptr.3d 76, 83 P.3d 480].)"
9. The treatise goes on to note that "review on appeal from the final judgment has been allowed in exceptional cases," citing Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1269 [38 Cal.Rptr.3d 333]. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 10:385, pp. 10-149 to 10-150 (rev. # 1, 2011).) Gackstetter is one of the cases Transport relies on here.
10. This may be problematic, in light of the lengthy statute of limitations involved. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 380 [2 Cal.Rptr.3d 655, 73 P.3d 517] ["Because plaintiffs had three or four years after discovery, and up to ten years after the project's completion, to bring their suits for latent construction defects, many of the concerns that might warrant equitable tolling are ameliorated."]. Cf. Flintkote v. General Accident Assurance Co. of Canada (N.D.Cal. 2007) 480 F.Supp.2d 1167, 1179-1180 [holding equitable tolling could apply to four-year statute of limitations in asbestos case].)
|
|
|
|
|