Komorsky v. Farmers Ins. Exchange ( 2019 )

Filed 3/1/19; Modified and certified for publication 3/29/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MELISSA KOMORSKY, B286443
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC608113)
v.
FARMERS INSURANCE
EXCHANGE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gail Ruderman Feuer, Judge. Affirmed.
David Hoffman; Law Offices of Laurence Posner and
Laurence Posner for Plaintiff and Appellant.
Haight Brown & Bonesteel, Denis J. Moriarty and
Christopher Kendrick for Defendants and Respondents.
Melissa Komorsky appeals from a judgment in favor of
Farmers Insurance Exchange (Farmers) and Truck Insurance
Exchange (Truck). Komorsky’s mother, Linda Liker, was insured
under an automobile liability policy issued by Farmers and an
umbrella policy issued by Truck. Both policies included
uninsured motorist coverage. After an uninsured motorist struck
and killed Ms. Liker, Komorsky filed claims for benefits under
both policies for her mother’s wrongful death. The trial court
determined Komorsky was entitled to coverage under the
Farmers policy as an heir of an insured pursuant to Insurance
Code section 11580.2, subdivision (a)(1)1, but was not entitled to
coverage under the Truck umbrella policy. The court later
granted the defendants’ motion for judgment on the pleadings
based on its coverage determination.
On appeal, Komorsky contends (1) she is entitled to
uninsured motorist coverage under the Truck umbrella policy as
1 Insurance Code section 11580.2, subdivision (a)(1) states,
in relevant part: “No policy of bodily injury liability insurance
covering liability arising out of the ownership, maintenance, or
use of any motor vehicle . . . shall be issued or delivered in this
state to the owner or operator of a motor vehicle . . . unless the
policy contains, or has added to it by endorsement, a
provision . . . insuring the insured, the insured’s heirs or legal
representative for all sums within the limits that he, she, or they,
as the case may be, shall be legally entitled to recover as
damages for bodily injury or wrongful death from the owner or
operator of an uninsured motor vehicle. . . . A policy shall be
excluded from the application of this section if the automobile
liability coverage is provided only on an excess or umbrella
basis.”
All further statutory references are to the Insurance Code
unless otherwise indicated.
2
an heir of an insured pursuant to section 11580.2, subdivision
(a)(1); (2) the trial court erred in denying her motion for leave to
file a second amended complaint alleging causes of action for
estoppel and reformation; and (3) Farmers Group, Inc. is a proper
defendant based on its control of Farmers and Truck.
We conclude the trial court ruled properly on each of these
issues and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Insurance Policies and Claims
Alan and Linda Liker, husband and wife, were named
insureds under an automobile liability insurance policy issued by
Farmers. The Farmers policy provided uninsured or
underinsured motorist coverage of up $250,000 per person. Alan
Liker was also the named insured under an umbrella insurance
policy issued by Truck that provided up to $1 million in coverage.
The uninsured motorist coverage provision in the Farmers
policy stated that Farmers would “pay all sums which an
insured person or such other person as permitted under the law
is legally entitled to recover as damages from the owner or
operator of an uninsured motor vehicle because of bodily
injury . . . including the wrongful death of an insured person.”
(Emphasis in original.)2 As relevant here, the Farmers policy
defined “insured person” as including “You or a family member”
and “Any person for damages that person is entitled to recover
because of bodily injury to you, a family member, or another
occupant of your insured car.” (Emphasis in original.) The
policy defined “you” as the named insured shown in the
2 Boldfaced words or phrases in both policies were defined in
the policies.
3
declarations (Alan Liker and Linda Liker) and any spouse living
in the same household. It defined “family member” as “a person
related to you by blood, marriage or adoption who is a resident of
your household.” It also contained a provision requiring
arbitration in the event of a dispute concerning uninsured
motorist coverage.
The Truck umbrella policy included an endorsement adding
uninsured and underinsured motorist coverage. The
endorsement stated the coverage was “payable to you and any
other insured under this policy, to the extent that either or both
coverages are a part of the underlying insurance.” (Emphasis
in original.) The schedule of underlying insurance included the
Farmers policy. The Truck policy defined “you” as the named
insured shown in the declarations (Alan Liker) and his or her
spouse living in the same household (Linda Liker), and as
relevant here defined “insured” as “you” and any relatives (as
defined) living in “your” household.
Linda Liker was killed by an uninsured motorist in October
2014. Alan Liker made a claim for uninsured motorist benefits
under both the Farmers and Truck policies and demanded
arbitration against the insurers. Komorsky, Linda Liker’s
daughter from a prior marriage, also made a claim for uninsured
motorist benefits under both policies. Komorsky did not reside in
the Likers’ household.
2. The Complaint
On January 25, 2016, Komorsky filed a complaint against
Farmers Group, Inc., Farmers, Truck and Alan Liker. Komorsky
alleged causes of action for (1) declaratory relief regarding the
parties’ rights to uninsured motorist benefits under the two
policies, against all defendants; (2) negligent interference with
4
prospective economic advantage, against all defendants; (3)
intentional interference with prospective economic advantage,
against Alan Liker; and (4) a permanent injunction, against Alan
Liker.
On January 29, 2016, Alan Liker filed a petition to compel
arbitration based on the arbitration provision in the Farmers
policy and section 11580.2, subdivision (f). Alan Liker died on
February 5, 2016. The trial court ordered the substitution of his
personal representative, Harley Liker, for Alan Liker.
On February 10, 2016, Komorsky filed a first amended
complaint alleging the same four causes of action and adding a
fifth cause of action for breach of contract against Farmers and
Truck, and a sixth cause of action for breach of the implied
covenant of good faith and fair dealing against the same
defendants.
3. The Trial Court’s Ruling on the Coverage Issue
The trial court determined that an arbitration should
proceed only after the court determined whether Komorsky was
covered under the policies. On March 18, 2016, the court filed an
order setting a briefing schedule and a hearing on the coverage
issue to take place on June 10, 2016. The court permitted
Komorsky’s sister, Sherri Fogelman, to intervene in the action.3
The court granted the petition to compel arbitration, with the
arbitration to proceed after the coverage determination.
On May 18, 2016, Farmers filed a complaint in interpleader
against Komorsky, Fogelman, and Harley Liker. Farmers
alleged the defendants had competing claims to uninsured
motorist benefits under the Farmers policy and sought to
3 Fogelman is not a party to this appeal.
5
interplead the $250,000 policy limits and allow the court to
resolve the competing claims.
Farmers acknowledged that Alan Liker and Komorsky
were entitled to uninsured motorist coverage under the Farmers
policy based on section 11580.2, subdivision (a)(1). Truck also
asserted that Alan Liker and Komorsky were entitled to
uninsured motorist coverage under the Truck umbrella policy. In
support of that position, Farmers and Truck cited a Texas opinion
interpreting what they characterized as the same uninsured
motorist endorsement language employed in this case.4 Because
the Texas court used language indicating the umbrella’s
uninsured motorist endorsement “followed form” to the
underlying policy, Truck concluded the endorsement in this case
also followed form. Truck took the position that its endorsement
therefore provided the same scope of uninsured motorist coverage
as the Farmers policy. Conflating scope of coverage with the
identity of the persons insured by the respective policies, Truck
conceded its policy therefore would provide uninsured motorist
coverage for Komorsky. Alan Liker disputed Komorsky’s right to
coverage under the Truck endorsement, however.
The trial court filed a tentative ruling on the coverage issue
prior to the June 10, 2016 hearing. The court tentatively found
Komorsky and Fogelman were entitled to uninsured motorist
coverage under both the Farmers and Truck policies. The
tentative ruling stated the Farmers policy provided uninsured
motorist coverage to Komorsky and Fogelman as a matter of law
pursuant to section 11580.2, subdivision (a)(1). The court
tentatively concluded the statute did not apply to the Truck
4 Laine v. Farmers Ins. Exchange (Tex.App. 2010) 325
S.W.3d 661, 665. The language is similar, but not identical.
6
policy because it was an umbrella policy. However, examining
the language of Truck’s uninsured motorist endorsement, the
court tentatively concluded the endorsement incorporated the
terms of the Farmers policy, or “followed form,” and therefore
provided uninsured motorist coverage to Komorsky and
Fogelman just as the Farmers policy did.
On June 28, 2016, the trial court filed a final order finding
Komorsky and Fogelman were entitled to uninsured motorist
coverage under the Farmers policy, but not under the Truck
umbrella policy. The court found section 11580.2, subdivision
(a)(1) did not apply to the Truck policy because it was an
umbrella policy. Having reexamined the policy language, the
court concluded Truck’s uninsured motorist endorsement did not
provide coverage to Komorsky and Fogelman because they were
not insureds under the umbrella policy. As noted above, the
Truck policy defined “insured” as the named insured (Alan
Liker), his spouse living in the same household (Linda Liker),
and relatives (as defined) living in the same household. Niether
Komorsky nor Fogelman lived with the Likers.
Komorsky challenged the trial court’s ruling by filing a
petition for writ of mandate in this court (B276326). We
summarily denied the petition. Komorsky also filed a notice of
appeal from the June 28, 2016 order (B277191). We granted
Harley Liker’s motion to dismiss the appeal.
4. The Motion for Leave to File a Seconded Amended
Complaint
On January 23, 2017, Komorsky filed a motion for leave to
file a second amended complaint. She sought to add causes of
action for estoppel and reformation against Truck and Farmers
Group, Inc. Komorsky sought to estop the insurance carriers
7
from denying her (and Fogelman) uninsured motorist coverage
under the Truck policy and to reform the policy to expressly
provide that Komorsky and Fogelman were insureds. The trial
court concluded as a matter of law Komorsky was not entitled to
relief on the proposed new causes of action, and denied the
motion on March 21, 2017.
5. The Motion for Judgment on the Pleadings
Despite having earlier taken the position that Komorsky
and her sister were both covered by the uninsured motorist
provisions in both policies, on July 13, 2017, Farmers and Truck
filed a motion for judgment on the pleadings.5 They argued there
was no breach of contract because Farmers had interpleaded the
uninsured motorist policy limits under the Farmers policy and
because the trial court had determined Komorsky was not
entitled to uninsured motorist coverage under the Truck
umbrella policy. They also argued as a matter of law there was
no breach of the implied covenant of good faith and fair dealing,
they were not liable for negligent interference with prospective
economic advantage, and Komorsky was not entitled to
declaratory relief. In addition, Farmers and Truck argued the
court should dismiss the complaint against Farmers Insurance
Group because there was no such legal entity. They also argued
to the extent the complaint identified Farmers Group, Inc., which
was a legal entity, as a defendant, that entity could not be liable
because the parties had stipulated the insuring entities were
Farmers and Truck, and not Farmers Group, Inc.
Komorsky opposed the motion, arguing the trial court’s
prior ruling that she was not entitled to coverage under the
5 Komorsky dismissed Harley Liker as a defendant on July
20, 2017, pursuant to a settlement.
8
Truck policy was incorrect. Komorsky urged the trial court to
construe section 11580.2 to provide that Komorsky and
Fogelman, as heirs of an insured, Linda Liker, were entitled to
uninsured motorist coverage under both policies. Komorsky also
argued Farmers Group, Inc. was a proper defendant because it
controlled Farmers and Truck.
On August 25, 2017, the trial court concluded its prior
ruling that Komorosky was not entitled to coverage under the
Truck umbrella policy was correct and granted the motion for
judgment on the pleadings.6 Having previously denied
Komorsky’s motion for leave to file a second amended complaint
adding causes of action for estoppel and reformation, the court
denied leave to amend to add the same causes of action.
Accordingly, the court entered judgment in favor of Farmers and
Truck on September 19, 2017.7
6 We judicially notice the trial court’s tentative ruling on the
motion for judgment on the pleadings, filed on August 25, 2017,
which the court adopted as its final ruling. (Evid. Code, § 452,
subd. (d).)
7 We grant Komorsky’s request for judicial notice of the
complaint filed on July 17, 2017, in Liker v. Truck Insurance
Exchange (Super. Ct. L.A. County, No. BC668770) and the
register of actions in that case. (Evid. Code, § 452, subd. (d).) We
deny the request to judicially notice a letter dated May 29, 2015,
because it was not presented to the trial court. A reviewing court
generally will not judicially notice evidence not presented to the
trial court, and Komorsky has shown no exceptional
circumstances to justify deviating from this rule. (Haworth v.
Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) Moreover,
Komorsky cites no statutory basis to judicially notice the letter.
(See Evid. Code, § 452.)
9
DISCUSSION
1. Komorsky Is Not Entitled to Uninsured Motorist Coverage
Under the Truck Umbrella Policy
Section 11580.2, subdivision (a)(1) requires primary
automobile liability insurance policies to include uninsured
motorist coverage, unless the insurer and insured agree in
writing to not include or to limit such coverage. Uninsured
motorist coverage must provide benefits to the insured, or the
insured’s heirs or legal representative, in the amount of damages
an uninsured driver is liable to pay the insured, or the insured’s
heirs or legal representative, for bodily injury or wrongful death,
not exceeding the coverage limit.8 (Ins. Code, §11580.2,
subd.(a)(1); Haering v. Topa Ins. Co. (2016) 244 Cal.App.4th 725,
733-734 (Haering).) Subdivision (a)(1) expressly excludes
insurance policies providing only excess or umbrella coverage
from this requirement.9
The parties agree that pursuant to section 11580.2,
subdivision (a)(1), Komorsky, as an heir of an insured, Linda
Liker, is entitled to coverage under the Farmers policy in the
amount of damages the uninsured motorist is liable to Komorsky
for the wrongful death of Linda Liker, not exceeding the policy
limit. The dispute concerns whether the statute requires the
same result under the Truck umbrella policy.10
8 See footnote 1, ante, page 2.
9 See footnote 1, ante, page 2.
10 Komorsky does not argue she was an “insured” as defined
in the Truck policy.
10
Komorsky acknowledges section 11580.2, subdivision (a)(1)
expressly does not apply to an excess or umbrella policy. She
argues, however, it should apply to an umbrella policy if the
ubrella includes an endorsement adding uninsured motorist
coverage.
Whether section 11580.2 applies to the uninsured motorist
coverage in the Truck umbrella policy is a question of statutory
construction. “We review questions of statutory construction de
novo. [Citation.] ‘Our primary task in interpreting a statute is to
determine the Legislature’s intent, giving effect to the law’s
purpose. [Citation.] We consider first the words of a statute, as
the most reliable indicator of legislative intent. [Citation.]’
[Citation.] We construe the statute’s words in context, and
harmonize statutory provisions to avoid absurd results.
[Citation.] If we find the statutory language ambiguous or
subject to more than one interpretation, we may look to extrinsic
aids, including legislative history or purpose to inform our views.
[Citation.]” (John v. Superior Court (2016) 63 Cal.4th 91, 95-96.)
Section 11580.2, subdivision (a)(1) includes the language,
“A policy shall be excluded from the application of this section if
the automobile liability coverage is provided only on an excess or
umbrella basis.” This language plainly and unambiguously
provides section 11580.2’s requirements for uninsured motorist
coverage do not apply to policies providing only umbrella or
excess coverage, as courts have held without noting any
ambiguity. (Haering, supra, 244 Cal.App.4th at p. 734; Furlough
v. Transamerica Ins. Co. (1988) 203 Cal.App.3d 40, 47; Wiemann
v. Indus. Underwriters Ins. Co. (1986) 177 Cal.App.3d 38, 44.)
Komorsky does not argue the Truck umbrella policy provides any
coverage other than excess or umbrella coverage.
11
Komorsky does not identify any purported ambiguity in the
statutory language. Instead, she argues public policy compels the
conclusion that any uninsured motorist coverage in an excess or
umbrella policy that “follows form” to the underlying primary
coverage must satisfy the requirements of section 11580.2 “to
avoid fracturing families in wrongful death claims.” We disagree.
We may not interpret the statute in a manner contrary to its
plain language to conform to an intention the Legislature never
expressed. “In construing this, or any, statute, our office is
simply to ascertain and declare what the statute contains, not to
change its scope by reading into it language it does not contain or
by reading out of it language it does. We may not rewrite the
statute to conform to an assumed intention that does not appear
in its language. [Citation.]” (Vasquez v. State of California (2008)
45 Cal.4th 243, 253.)
Komorsky also argues Schwartz v. State Farm Fire &
Casualty Co. (2001) 88 Cal.App.4th 1329 supports the proposition
that section 11580.2 applies to all policies containing uninsured
motorist coverage, including excess policies. In Schwartz, a
primary policy and an excess policy both provided uninsured
motorist coverage for the policyholders and their passengers. (Id.
at pp. 1333.) A policyholder and a passenger suffered injuries in
a collision. (Id. at pp. 1332-1333.) Schwartz held an excess
insurer with knowledge of potentially competing claims exceeding
policy limits has a duty to refrain from favoring one insured over
another by paying policy limits to one insured and impairing the
other’s right to receive policy benefits. (Id. at pp. 1332-1333,
1338.) Contrary to Komorsky’s argument, Schwartz did not
suggest section 11580.2 applies to all excess policies providing
uninsured motorist coverage.
12
Having concluded section 11580.2, subdivision (a)(1) does
not modify the language of the Truck uninsured motorist
endorsement, we next turn to the meaning of this endorsement.
It provides, as noted above, “[f]or the additional premium paid, it
is agreed that this policy will provide uninsured and/or
underinsured motorist coverage(s) payable to you and any other
insured under this policy, to the extent that either or both
coverages are part of the underlying insurance.” (Emphasis
added.) Thus it provides the scope of uninsured motorist
coverage will be the same as in the underlying Farmers policy.
But as the italicized language makes clear, the identity of the
insureds — i.e., those to whom uninsured motorist benefits are
payable — is limited to “you” (defined in the policy only as Alan
Liker and his spouse, Linda Liker) “and any other insured under
this policy.” As also noted above, as relevant here “insured” is
defined as “you” and any relatives (as defined) living in “your”
household. Because Komorsky was not living in the Liker’s
household, she was not an “insured” under the Truck
endorsement. Therefore, by the endorsement’s plain language,
uninsured motorist benefits were not “payable to” her. (Foster-
Gardner, Inc. v. National Union Fire Ins. Co. (1988) 18 Cal.4th
857, 868 [plain language of insurance contract governs policy
interpretation].)
That the Truck umbrella policy may have been a “following
form” policy does not lead to a contrary result. “A following form
excess policy incorporates by reference the terms and conditions
of the underlying primary policy. [Citation.] A following form
excess policy generally will contain the same basic provisions as
the underlying policy, with the exception of those provisions that
are inconsistent with the excess policy. [Citation.] Any
13
inconsistency or conflict between the provisions of a following
form excess policy and the provisions of an underlying primary
policy is resolved by applying the provisions of the excess policy.”
(Haering, supra, 244 Cal.App.4th at p. 734.) Thus, the language
in Truck’s endorsement — not in the underlying Farmers policy—
governs who will be paid by Truck.
We therefore conclude the trial court properly determined
the uninsured motorist coverage in the Truck umbrella policy
does not apply to Komorsky.
2. The Trial Court Properly Denied Leave to File a Second
Amended Complaint
Komorsky contends the trial court erred in denying her
leave to file a second amended complaint alleging causes of action
for estoppel and reformation.
A. Applicable Law
A trial court may allow the amendment of a pleading in
the furtherance of justice. (Code Civ. Proc., §§ 576, 473, subd.
(a)(1).) Ordinarily, leave to amend a complaint should be
liberally granted unless the opposing party would be prejudiced
by the amendment. (Trafton v. Youngblood (1968) 69 Cal.2d 17,
31; P&D Consultants, Inc. v. City of Carlsbad (2010) 190
Cal.App.4th 1332, 1345.) Leave to amend a complaint is properly
denied, however, if the facts are undisputed and the proposed
amendment would not establish a basis for liability as a matter of
law. (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 653.) We
review the denial of a motion for leave to amend a complaint for
abuse of discretion. (Ibid.)
B. Estoppel
In her proposed second amended complaint, Komorsky
seeks to allege Truck intended the heirs of an insured would be
14
insureds for purposes of uninsured motorist wrongful death
claims. By investigating her claim, agreeing to arbitrate the
amount of damages, and representing Truck did not deny
coverage, she argues, Truck caused her to believe its uninsured
motorist endorsement provided her coverage, inducing her
detrimental reliance.
“There are four basic elements of equitable estoppel: (1)
The party to be estopped must have known the facts; (2) the
party to be estopped must have intended that its conduct would
be acted upon, or it must have acted so as to have given the party
asserting estoppel the right to believe that it was so intended; (3)
the party asserting estoppel must have been ignorant of the true
state of facts; and (4) the party asserting estoppel must have
relied on the conduct to its injury.” (Saint Francis Memorial
Hospital v. State Depart. of Public Health (2018) 24 Cal.App.5th
617, 624.)
As a general rule, where coverage does not exist under an
insurance policy it cannot be created by estoppel. “ ‘ “ ‘[I]t is the
general and quite well settled rule of law that the principles of
estoppel and implied waiver do not operate to extend the
coverage of an insurance policy after the liability has been
incurred or the loss sustained.’ ” [Citations.]’ [Citations.]”
(Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199
Cal.App.4th 1132, 1154 (Dollinger); accord, Advanced Network,
Inc. v. Peerless Ins. Co. (2010) 190 Cal.App.4th 1054, 1066
(Advanced Network); see also Manneck v. Lawyers Title Ins. Corp.
(1994) 28 Cal.App.4th 1294, 1303 [“coverage under an insurance
policy cannot be established by estoppel or waiver”].)
“ ‘ “ ‘The rule is well established that the doctrines of
implied waiver and of estoppel, based upon the conduct or action
15
of the insurer, are not available to bring within the coverage of a
policy risks not covered by its terms, or risks expressly excluded
therefrom, and the application of the doctrines in this respect is
therefore to be distinguished from the waiver of, or estoppel to
assert, grounds of forfeiture . . . .’ ” ’ [Citation.]” (Advanced
Network, supra, 190 Cal.App.4th at p. 1066; accord, R & B Auto
Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327,
352.) While an insurer may be estopped to assert grounds for
forfeiture of policy benefits, the estoppel doctrine may not be used
to create coverage not provided by the policy. (Advanced
Network, supra, 190 Cal.App.4th at p. 1066; Supervalu, Inc. v.
Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64,
77.)
An exception to the rule against coverage by estoppel
applies where a liability insurer defends an action against its
insured without reserving the right to deny coverage. (Dollinger,
supra, 199 Cal.App.4th at p. 1154; Miller v. Elite Ins. Co. (1980)
100 Cal.App.3d 739, 755.) The exception is inapplicable here,
however, because Komorosky is not an insured under Truck’s
uninsured motorist endorsement and Truck did not defend any
action against her.
Komorsky attempts to distinguish the line of cases denying
coverage by estoppel, arguing the rule applies only if the policy
does not provide the type of coverage the insured seeks to
establish. Cases applying the rule against coverage by estoppel
typically involve an insured seeking coverage for a type of claim
not covered by the policy. (E.g., Dollinger, supra, 199
Cal.App.4th at p. 1152-1153 [title policy did not provide coverage
for insured’s claim]; Advanced Network, supra, 190 Cal.App.4th
at p. 1058 [liability policy did not provide coverage for third party
16
claim against the insured].) Here, in contrast, the reason for the
lack of coverage is not the type of claim (i.e. uninsured motorist)
but the fact that Komorsky is neither an insured under the Truck
policy nor entitled to coverage by operation of law under section
11580.2, subdivision (a)(1). Komorsky does not explain why the
rule against coverage by estoppel should apply only if the party
claiming estoppel is an insured, and provides no persuasive
reason to limit the rule in such a manner.
Komorsky cites Monarco v. Lo Greco (1950) 35 Cal.2d 621and Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012)
212 Cal.App.4th 172 in support of her argument for estoppel.
Monarco and Barnes did not involve insurance coverage,
however, and provide no support for coverage by estoppel.
Komorsky also cites Travelers Ins. Co. v. Lesher (1986) 187
Cal.App.3d 169 (Travelers), disapproved on other grounds in Buss
v. Superior Court (1997) 16 Cal.4th 35, 50, footnote 12, for the
proposition that an insurer can be estopped from denying
coverage. In that case, an insurer defended its insured under a
reservation of rights. (Travelers, supra, 187 Cal.App.3d at p.
182.) The trial court later determined the insurer had no duty to
indemnify or defend its insured. (Id. at p. 184.) Meanwhile, a
jury found the insurer failed to conduct the defense in good faith
and with due care, and awarded the insured compensatory and
punitive damages. (Id. at p. 181.) The court entered a judgment
declaring the absence of a duty to indemnify or defend and
awarding the insured damages on the jury verdicts. (Id. at p.
184.) On appeal, the insurer did not contend there was no basis
for liability (id. at p. 187), and the opinion did not discuss
estoppel. “ ‘An opinion is not authority for propositions not
17
considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659,
680.)
We conclude Komorsky is not entitled to coverage by
estoppel. The trial court therefore properly denied leave to
amend.
C. Reformation
Komorsky seeks to allege in her proposed second amended
complaint, “Based on TRUCK’s representations, omissions and
conduct, TRUCK intended that the heirs of Linda LIKER,
including plaintiff and FOGELMAN, would be insured for
purposes of any uninsured motorist wrongful death claim under
its UM/UIM endorsement which was in full force and effect, and
TRUCK and FARMERS GROUP, INC. knew or reasonably
suspected the written insurance contract it authored and
produced did not truly and accurately express the intentions of
the parties, so that it should be revised to express that
KOMORSKY and FOGELMAN are insureds as heirs of LINDA
LIKER . . . .”
Civil Code section 3399 provides, “When, through fraud or
a mutual mistake of the parties, or a mistake of one party, which
the other at the time knew or suspected, a written contract does
not truly express the intention of the parties, it may be revised on
the application of a party aggrieved, so as to express that
intention, so far as it can be done without prejudice to rights
acquired by third persons, in good faith and for value.”
Reformation is an equitable remedy the essential purpose
of which is to ensure the contract, as reformed, reflects the
parties’ mutual intention. (Jolley v. Chase Home Finance, LLC
(2013) 213 Cal.App.4th 872, 908; Jones v. First American Title
Ins. Co. (2003) 107 Cal.App.4th 381, 389.) “In reforming the
18
written agreement, a court may ‘transpose[ ], reject[ ], or suppl[y]’
words [citation], but has ‘ “no power to make new contracts for
the parties ” ’ [citation]. Rather, the court may only reform the
writing to conform with the mutual understanding of the parties
at the time they entered into it, if such an understanding exists.
[Citation.]” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524.)
“Reformation may be had for a mutual mistake or for the mistake
of one party which the other knew or suspected, but in either
situation the purpose of the remedy is to make the written
contract truly express the intention of the parties.” (Lemoge
Electric v. County of San Mateo (1956) 46 Cal.2d 659, 663.)
A complaint for reformation based on mutual mistake must
allege “facts showing how the mistake was made, whose mistake
it was, and what brought it about, so that the mutuality may
appear. [Citations.]” (Auerbach v. Healy (1916) 174 Cal. 60, 63
(Auerbach); accord, Lane v. Davis (1959) 172 Cal.App.2d 302,
309.) If the mistake was unilateral, “which the other at the time
knew or suspected” (Civ. Code, § 3399), the complaint must allege
supporting facts, and the plaintiff may not rely on conclusory
allegations. (Auerbach, supra, 174 Cal. 60 at p. 63; George v.
Automobile Club of Southern California (2011) 201 Cal.App.4th
1112, 1132-1133.)
The proposed second amended complaint alleges Truck’s
conduct in connection with Komorsky’s claim for benefits shows
Truck’s prior intention to include Komorsky as an insured under
the policy. But it alleges no facts regarding the intention of Alan
and Linda Liker (assuming arguendo that Linda Liker was a
contracting party) in this regard. It does not allege the Likers
intended the uninsured motorist coverage under the Truck
umbrella policy to apply to Komorsky as the heir of an insured,
19
alleges no facts showing why the endorsement does not reflect
such a mutual intention, and alleges no facts showing the Likers
knew of or suspected any unilateral mistake. Komorsky does not
claim she could truthfully allege such facts. We conclude the
complaint fails to allege facts sufficient to justify reformation.
The trial court therefore properly denied leave to amend.
In light of our conclusions, the contention that Farmers
Group, Inc. is a proper defendant is moot.
DISPOSITION
The judgment is affirmed. Farmers and Truck are entitled
to costs on appeal.
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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Filed 3/29/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MELISSA KOMORSKY, B286443
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC608113)
v.
ORDER MODIFYING OPINION,
FARMERS INSURANCE CERTIFYING OPINION FOR
EXCHANGE et al., PUBLICATION AND
DENYING REHEARING
Defendants and Respondents.
THE COURT:
The opinion filed on March 1, 2019, is hereby modified as follows:
1. On page 7, line 18, the word “Niether” is deleted and replaced by
“Neither”;
2. On page 11, line 4, the word “ubrella” is deleted and replaced by
“umbrella”;
3. On page 12, lines 21-22, the language “(Id. at pp. 1333.)” is deleted
and replaced by “(Schwartz, at p. 1333.)”
The opinion filed on March 1, 2019, was not certified for publication in
the Official Reports. For good cause, the opinion is hereby certified for
publication in the Official Reports.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
MANELLA, P.J. COLLINS, J.
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