Gonzalez v. Nations Ins. Co. CA2/2 ( 2024 )

Filed 10/16/24 Gonzalez v. Nations Ins. Co. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ARTURO MENDEZ B333832
GONZALEZ,
(Los Angeles County
Plaintiff and Appellant, Super. Ct.
No. 21STCV22757)
v.
NATIONS INSURANCE
COMPANY,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Colin P. Leis, Judge. Affirmed.
Law Offices of Gabor Szabo and Gabor Szabo for Plaintiff
and Appellant.
Weinreb Law Group and Marnin Weinreb for Defendant
and Respondent.
Arturo Mendez Gonzalez (appellant) appeals from a
judgment entered after the trial court granted summary
judgment in favor of Nations Insurance Company (Nations) on
appellant’s claims against Nations for breach of insurance
contract and breach of the covenant of good faith and fair dealing.
We affirm.
FACTUAL BACKGROUND
The policy
Nations issued a personal automobile insurance policy to
Daniel Elizondo effective February 16, 2017, through
February 16, 2018 (the policy). The policy provided coverage of
$15,000 per person, $30,000 per accident.
The accident
On May 28, 2017, appellant was involved in a traffic
collision with Elizondo, in which appellant claimed to have
sustained personal injuries. At the time of the incident,
appellant had a passenger in his vehicle, Guillerma Lopez
Barrera. A third vehicle, a tractor-trailer driven by Emerik
Urban, was also involved. The traffic collision report identified
the three vehicles involved in the incident as those driven by
Elizondo, appellant, and Urban.
Policy limit demands and investigation
Five weeks after the collision, on or about July 3, 2017,
Nations’ third party claims adjuster, AFA Claims Services (AFA),
received demand letters dated June 26, 2017, from appellant’s
counsel for the injuries sustained by appellant and Barrera. The
letters demanded the $15,000 per person policy limit for
appellant and Barrera be paid within 20 days. If paid, the
2
$30,000 aggregate policy limits would be paid to settle their
claims.
AFA responded to the demand letters on July 3, 2017, by
advising appellant’s counsel that Nations was unable to accept or
reject the demands because it had determined there was a
potential policy limit issue and was awaiting further information
to identify all injured parties and claims. The response letter
emphasized that until the extent of exposure for all liability was
known, Nations was unable to tender any settlement offers to
appellant and Barrera.
On the same day, AFA received a new letter of
representation on behalf of Barrera, dated June 28, 2017, from
the law offices of Brent Romney.
AFA received a second demand letter on behalf of both
appellant and Barrera from appellant’s attorney on July 20,
2017. In the second demand letter, appellant’s counsel asserted
the request for additional time was unreasonable on the grounds
that the police report identified all parties involved and indicated
appellant and Barrera were the injured parties. The second
demand letter required the policy limits to be offered to appellant
and Barrera within 10 days.
On July 26, 2017, AFA contacted Urban to inquire whether
he had been injured in the accident. Urban responded that he
was represented by an attorney, and he would call the following
day with his attorney’s information. On July 27, 2017, AFA
received a call from a paralegal named Diana, at the Law Offices
of Robert Bollar, who confirmed the office’s representation of
Urban, but she did not yet know whether Urban was injured or
whether he would present a claim for damages related to the
accident.
3
On July 28, 2017, AFA responded to appellant’s counsel’s
second demand letters that it could neither accept nor reject the
limits demands until it knew the extent of the full exposure to its
insured. AFA further communicated it had determined a
potential policy limits issue and was awaiting the third party’s
medical documentation in order to evaluate the medical claims of
all parties.
On August 23, 2017, AFA called the Law Offices of Robert
Bollar seeking information about whether Urban was making a
personal injury claim. AFA was told the attorney handling the
matter would return the call. The same day, AFA sent Urban’s
attorney a letter inquiring whether Urban had been injured in
the accident. AFA also sent that day appellant’s attorney a
status letter, advising it required further time to complete the
investigation due to pending information from the third party
involved.
In October 2017, appellant filed a lawsuit against Elizondo
for injuries he claimed to have sustained in the accident.
On November 2, 2017, AFA again called the Law Offices of
Robert Bollar to inquire whether Urban had been injured in the
accident and would be making a claim against Elizondo. AFA
was unable to speak to Urban’s attorney, so sent a letter the
same day inquiring whether Urban had been injured and
whether he would be making a claim. On the same day, AFA
sent a letter to appellant’s attorney advising that additional time
for investigation was required.
On November 28, 2017, AFA again spoke with Diana from
the Law Offices of Robert Bollar. For the first time, AFA was
advised that Urban had not sustained personal injuries in the
accident and his damages would likely be limited to the damage
4
to his truck. Diana said she would forward the invoice for
damages to Urban’s truck.
On December 6, 2017, AFA sent status letters to the
attorneys for appellant, Barrera, and Urban, advising it could
neither accept nor reject any demands due to a potential limits
issue. 3/6 aug. p. 14)~ Also on December 6, 2017, AFA spoke to
Barrera’s new attorney and inquired whether there would be a
new demand for Barrera, as prior demands had been sent by
appellant’s counsel. Counsel for Barrera advised they would be
submitting their own demand on behalf of Barrera.
On December 14, 2017, Diana from Robert Bollar’s office
definitively confirmed to AFA that Urban had not been injured
and would not be making a claim against Elizondo for personal
injuries.
Settlement
On the same day AFA learned Urban would not make a
personal injury claim against its insured, Nations offered the per-
person policy limit of $15,000 to appellant. Appellant’s attorney
stated he would discuss the offer with his client but he believed
the limits were open. AFA reminded appellant’s attorney that
AFA had acknowledged his demand, however due to multiple
parties had to wait to receive all demands from all parties
involved. Appellant’s attorney repeated, “not my problem.”
AFA also offered the per-person bodily injury limit of
$15,000 to Barrera. Barrera, through counsel, accepted the offer.
Appellant’s attorney continued to refuse to accept Nations’
tender of the policy limit. In May 2021, Nations and appellant
settled the October 2017 personal injury action brought by
appellant against Elizondo through a settlement agreement. The
parties agreed to settle the matter for: (1) payment of the policy’s
5
per person bodily injury limits of $15,000; (2) an assignment of
Elizondo’s rights against Nations to appellant “as set forth in
Paragraph B”; and (3) agreeing to a value of $140,000 of
appellant’s personal injury action for the purposes of subsequent
litigation of the claims assigned to appellant “pursuant to
Paragraph B.”
Paragraph B specified the assignment was for “all claims
and causes of action which [Elizondo] may now have or hereafter
acquire against Nations based on the Open Policy Claim (the
‘Assigned Claim’).” The “Open Policy Claim” was defined as
“Nations[’] fail[ure] to timely accept the Policy Limits Demands,
which gave rise to a breach of Nations’ obligations to its insured
to settle; and that such failure opened up the limits of the
Nations Policy, subjecting Nations to liability in excess of the
policy limits of the Nations Policy.” The agreement specified that
Nations denied appellant’s contentions.
The “Open Policy Claim” was to be resolved in a “Bad Faith
Action.” The settlement agreement specified “[t]he only issue to
be determined in the subsequent Bad Faith Action, pursuant to
Paragraph G, is whether or not Nations’ failures to accept
Plaintiff’s policy limit demands constituted bad faith, i.e. a
breach of the covenant of good faith and fair dealing implied in
all insurance contracts.”
Paragraph G provided: “Following the execution of this
Agreement and the payment by Nations of the Policy Limits
Payment, [appellant] shall file the Bad Faith Action against
Nations in which the sole issue to be adjudicated is [appellant’s]
entitlement to recovery of damages on the Assigned Claim (i.e.,
the Open Policy Claim). The Bad Faith Action shall be filed and
tried in the Superior Court for Los Angeles County.”
6
The settlement agreement was signed by appellant,
Nations, and Elizondo.
PROCEDURAL HISTORY
Appellant filed this action for breach of contract and breach
of the covenant of good faith and fair dealing in June 2021. The
complaint alleged Nations “failed and refused to settle with
[appellant] within the limits of Elizondo’s policy, despite that [sic]
two demands served on Nations by [appellant] to settle for
$15,000.00.” Appellant alleged the refusals “were unreasonable
and unjustified and constituted material breaches of the Policy.”
Appellant further alleged “Nations fraudulently made up lies to
save money for Nations by falsely claiming that there were other
Claimants against the policy” and that Nations conducted an
“[u]nreasonable and improper investigation.”
In his responses to interrogatories, appellant asserted the
same theory, responding: “Had Nations and its agents done even
a minimal cursory investigation, such as one or two phone calls,
they would have learned that Mr. Urban was not injured and
never claimed to have been injured in the subject accident.
Therefore, the refusal of the policy limit payment was
unreasonable and unjustified as it had no factual basis and no
evidence that Mr. Urban was injured. Exposing Mr. Elizondo,
Nations’s insured, to an excess judgment was a breach of the
implied covenant of good faith and fair dealing in Mr. Elizondo’s
insurance policy. [Appellant] wrote two separate policy limit
demands to settle [appellant’s] claim. None of which were timely
accepted. There were never ever other claimants against
Nations’ policy other than [appellant] and his passenger.”
7
Nations filed its motion for summary judgment in July
2022, explaining appellant settled his claims against Elizondo in
the underlying action by having Elizondo assign to appellant “all
claims and causes of action which he has against Nations based
on [appellant’s] ‘Open Policy Claim’ (i.e., [appellant’s] claim that
Nations failed to timely accept his Policy Limits Demands).”
Nations argued appellant’s lawsuit was based on the faulty
premise that an insurer commits bad faith when requesting more
time to respond to a limits demand when there are potentially
additional claimants. Nations pointed out appellant’s position
was contrary to clear California law stating that when a loss
involves multiple claimants, an insurer must protect its insured
from multiple claims so the insured is not subject to personal
liability on any of the claims. (Citing Heredia v. Farmers Ins.
Exchange (1991) 228 Cal.App.3d 1345; Kinder v. Western Pioneer
Ins. Co. (1965) 231 Cal.App.2d 894.) Nations argued a bad faith
claim requires a finding that the insurer acted unreasonably in
some respect, and that its conduct of declining to accept or deny
appellant’s policy limits request was not unreasonable as a
matter of law under the circumstances. In fact, insurers may be
held liable for bad faith for the over-eager settlement of some
claims to the detriment of others. Nations argued appellant’s
policy limit demands were unreasonable because they imposed a
short deadline, ignored the existence of a potential additional
claimant, Urban, and demanded that Nations act contrary to
California law by paying its policy limits and not protecting its
insured from additional claims. Nations argued only one
inference could be drawn from the undisputed facts—that
Nations acted reasonably in response to the policy limit demands
and there was no breach of contract or bad faith as a matter of
8
law. Nations pointed out when an insurer acts reasonably and
offers the limits in settlement, there is no bad faith as a matter of
law. (Quoting Graciano v. Mercury General Corp. (2014) 231
Cal.App.4th 414, 426, 434.)
Appellant opposed the motion, pointing out the
reasonableness of an insurer’s claims-handling conduct is
ordinarily a question of fact, but becomes a question of law when
the evidence is undisputed and only one reasonable inference can
be drawn from the evidence. (Quoting Pinto v. Farmers Ins.
Exchange (2021) 61 Cal.App.5th 676, 689.) Appellant asserted he
disputed the credibility of Nations’ evidence and the truthfulness
of the adjusters’ testimony. Appellant took the position Nations
made misrepresentations regarding the potential third party
claim. Appellant accused Nations of creating fake file notes.
Appellant asserted it was undisputed Urban never made a bodily
injury claim.
Nations filed supplemental evidence including the
settlement agreement. On the same date, Nations filed a reply
brief, arguing appellant had no evidence to suggest Nations
acted unreasonably in responding to appellant’s policy limit
demand. Nations argued appellant’s new claims of improper
claims handling were outside the permissible scope of the action
pursuant to the settlement agreement.
On August 10, 2023, the trial court posted its tentative
decision to deny the summary judgment motion, citing Nations’
noncompliance with California Rules of Court, rule 3.1350 and a
two-month delay between the date Nations learned of Urban’s
denial of injury and the date of Nations’ acceptance of appellant’s
policy-limits demand.
9
On August 11, 2023, the parties argued the motion. The
court took the matter under submission and issued a final
written ruling on September 20, 2023. The court noted it
considered the moving papers, opposition, and reply, but did not
consider the surresponse and surreply filed by the parties. The
court further noted the settlement agreement between the
parties limited the issues to be decided in this litigation.
Specifically, Paragraph D specified, “[t]he only issue to be
determined . . . is whether or not Nations’ failures to accept
[appellant’s] policy limit demands constitute bad faith, i.e. a
breach of the covenant of good faith and fair dealing implied in
all insurance contracts.” Because of the settlement agreement,
the court’s analysis focused on Nations’ failure to pay appellant’s
June and July 2017 policy-limit demand letters within the time
limits of those letters. Because the settlement agreement limited
appellant’s claims, appellant’s other allegations of breach or bad
faith were not properly before the court. Accordingly, Nations’
failure to address those other issues were not fatal to Nations’
motion for summary judgment.
The court explained third party Urban’s involvement in the
collision imposed on Nations a duty to its insured to investigate
the possibility that Urban might make a claim against the policy.
Hence, Nations’ refusal to accept or deny the June and July
demand letters were reasonable as a matter of law.
The court noted the dispute between the parties as to the
events of December 14, 2017, when, Nations asserts, it first
learned that Urban would not be making a claim, and
February 16, 2018, when appellant asserts Nations finally
10
tendered the policy limits to appellant was a “red herring.”1
Under the terms of the settlement agreement, the only
potentially actionable breach happened in June and July 2017
when Nations refused to offer the policy limits.
On October 17, 2023, appellant filed a notice of intent to file
a motion for new trial. Appellant argued the court’s ruling was
not based on the pleadings but was based on an improper
interpretation of the settlement agreement between the parties.
After full briefing and a hearing, appellant’s motion for new trial
was denied.
Appellant filed his notice of appeal from the judgment on
November 27, 2023.
DISCUSSION
I. Applicable law and standard of review
In reviewing summary judgment motions, we apply “the
same three-step analysis required of the trial court.” (Hamburg
v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503
(Hamburg).) First, we identify the issues framed by the
pleadings. Second, we determine whether the moving party has
“‘“‘established facts which negate the opponent’s claim and justify
a judgment in movant’s favor.’”’” (Ibid.) The “‘“‘third and final
step is to determine whether the opposition demonstrates the
existence of a triable, material factual issue.’”’” (Ibid.)
We review the trial court’s decision de novo, “‘applying the
rule that “[a] defendant is entitled to summary judgment if the
1 Nations’ business records show that Nations made an offer
to appellant of the $15,000 policy limit on December 14, 2017, the
same day it definitively learned Urban would not be making a
claim against the policy.
11
record establishes as a matter of law that none of the plaintiff’s
asserted causes of action can prevail.”’” (MacKinnon v. Truck Ins.
Exchange (2003) 31 Cal.4th 635, 641.) “On review of a summary
judgment [motion], the appellant has the burden of showing
error, even if he did not bear the burden in the trial court.”
(Claudio v. Regents of the University of California (2005) 134
Cal.App.4th 224, 230.) However, in reviewing the court’s decision
to grant summary judgment, “we liberally construe the evidence
in support of the party opposing summary judgment and resolve
all doubts about the evidence in that party’s favor.” (Caliber
Paving Co., Inc. v. Rexford Industrial Realty & Management, Inc.
(2020) 54 Cal.App.5th 175, 190.) “[W]e must draw from the
evidence all reasonable inferences in the light most favorable to
the party opposing summary judgment.” (Ibid.) “We may affirm
on any ground supported by the record, and we are not bound by
the trial court’s reasoning.” (Ryder v. Lightstorm Entertainment,
Inc. (2016) 246 Cal.App.4th 1064, 1072.)
II. Issues framed by the pleadings
The first step in our analysis is to identify the issues
framed by the pleadings. (Hamburg, supra, 116 Cal.App.4th at
p. 503.) Here, appellant’s pleadings were restricted by the
settlement agreement between the parties in the underlying
matter. The sole basis for appellant’s right to bring this action
against Nations was the settlement agreement. Appellant
acknowledged this fact, alleging: “Elizondo assigned his rights
under Nations[’] . . . policy, including but not limited to
Nations[’] . . . failure to settle [appellant’s] claim for injuries
against Elizondo . . . within policy limit.” Thus, appellant’s
complaint must be read in conjunction with the settlement
agreement in order to appreciate the scope of the pleadings.
12
Pursuant to the settlement agreement, the sole issue in
this action was whether Nations’ alleged failure to accept
appellant’s policy limit demands constituted bad faith. As set
forth in the settlement agreement, “[t]he only issue to be
determined in the subsequent Bad Faith Action, pursuant to
Paragraph G, is whether or not Nations’ failures to accept
[appellant’s] policy limit demands constituted bad faith, i.e. a
breach of the covenant of good faith and fair dealing implied in
all insurance contracts.” Paragraph G reiterates: “[f]ollowing the
execution of this Agreement and the payment by Nations of the
Policy Limits Payment, [appellant] shall file the Bad Faith Action
against Nations in which the sole issue to be adjudicated is
[appellant’s] entitlement to recovery of damage on the Assigned
Claim (i.e., the Open Policy Claim).” The “Open Policy Claim” is
defined as appellant’s claim “Nations failed to timely accept the
Policy Limits Demands.”
Appellant’s complaint reflects the limited nature of the
action. In his first cause of action for breach of contract,
appellant alleged: “Nations has failed and refused to settle with
[appellant] despite that [sic] two demands served on Nations by
[appellant] to settle for $15,000.00. [¶] . . . The refusals were
unreasonable and unjustified and constituted material breaches
of the Policy.” In his second cause of action for breach of the
covenant of good faith and fair dealing, appellant alleged: “In the
absence of reasonable basis for doing so, and with full and
conscious disregard of the consequences of which Nations was
appraised of, Nations have [sic] failed and repeatedly failed to
accept the timely and within policy limit settlement demands of
[appellant] and settle [appellant’s] claim for the applicable
$15,000, as required by the terms of Elizondo’s policy.” Appellant
13
alleged “it was unreasonable and unjust to refuse to settle under
the liability coverage of Elizondo’s policy.” Appellant’s
allegations of a delayed and fraudulent investigation are
similarly tied to Nations’ refusal to settle in response to
appellant’s demands.
Appellant argues that the trial court “abused its discretion
by ignoring the allegations of the pleadings” during the summary
judgment proceedings.2 (Boldface & underscoring omitted.)
Appellant asserts it was not the complaint in the subject
litigation, but the settlement agreement from a prior litigation,
which framed the issues in this summary judgment proceeding.
Instead of considering the issues raised by appellant, appellant
argues, the court based its decision on its interpretation of the
settlement agreement.
The trial court did not err by limiting the issues to be
decided in this litigation to those expressly permitted by the
settlement agreement. Appellant had no right to bring this
action without the settlement agreement and was confined to the
claims described therein. Further, although appellant asserts
Nations did not dispute all issues raised in the complaint,
appellant fails to identify any specific unresolved issues.
Appellant has failed to show error in the trial court’s decision to
limit the issues to those specifically permitted by the settlement
agreement.
2 As set forth above, the proper standard of review is de novo.
(MacKinnon v. Truck Ins. Exchange, supra, 31 Cal.4th at p. 641.)
We do not review the trial court’s reasoning, and may affirm on
any ground. (Ryder v. Lightstorm Entertainment, Inc., supra, 246
Cal.App.4th at p. 1072.) We therefore decline to address
appellant’s arguments directed at the trial court’s reasoning.
14
Based on our review of the complaint and the settlement
agreement, we identify the sole issues in this matter to be
whether Nations’ failure to pay appellant’s June or July 2017
policy-limit demand letters within the time limits of those letters
constituted bad faith.
III. No breach or bad faith as a matter of law
Whether an insurer acted reasonably in connection with a
settlement offer “‘becomes a question of law where the evidence is
undisputed and only one reasonable inference can be drawn from
the evidence.’” (Pinto v. Farmers Ins. Exchange, supra, 61
Cal.App.5th at p. 689.) A cause of action for bad faith requires a
finding that the insurer acted unreasonably. (Id. at p. 692.)
Specifically, to be liable for bad faith, “an insurer must not only
cause the insured’s damages, it must act or fail to act without
proper cause, for example by placing its own interests above
those of its insured.” (Ibid.) Failure to accept a reasonable
settlement is not per se unreasonable. (Ibid.)
California law establishes that an insurer, when faced with
multiple claims, “must, with due regard for the interests of its
insured, attend to his best protection against all of these.”
(Kinder v. Western Pioneer Ins. Co., supra, 231 Cal.App.2d at
p. 902.) In other words, an insurance company “may be held in
bad faith for the over-eager settlement of some claims, to the
detriment of others.” (Id. at p. 901.)
The undisputed facts establish that the underlying accident
was a multivehicle accident with multiple potential claimants:
appellant, Barrera, and Urban. When Nations began
investigating the potential claim, it was informed Urban was
represented by counsel. Nations reached out to inquire whether
15
Urban would be making a claim against Nations’ insured,
Elizondo.
Appellant’s first policy-limits demand letter was dated
June 26, 2017, and demanded Nations pay the $15,000 per-
person policy limit to appellant and Barrera within 20 days, such
that the $30,000 aggregate policy limits would be paid to settle
their claims. Nations timely responded on July 3, 2017, advising
appellant’s counsel it could neither accept nor reject appellant’s
demand because it had determined there was a potential limits
issue and Nations was pending receipt of the police report and
medical documentation to evaluate the injury claims of all
claimants.
Appellant’s second policy-limits demand letter was dated
July 20, 2017. The second demand letter required the policy
limits to be offered to both appellant and Barrera within 10 days.
On July 27, 2017, AFA spoke with Urban’s attorney’s office, and
was informed it was as yet unknown whether Urban would be
filing a claim for damages. One day later, on July 28, 2017, AFA
responded to the second demand letter by informing appellant it
could neither accept nor decline appellant’s demand until it knew
the full extent of exposure of its insured.
Considering that Urban was represented by counsel and
might file a claim concerning the underlying accident, Nations
acted reasonably in declining to accept or reject appellant’s
policy-limits demands in June and July 2017. Nations’ insured,
Elizondo, remained exposed to potential liability in the event
Urban made a claim. Nations acted reasonably as a matter of
law in protecting its insured from this potential third party
claim.
16
IV. No triable, material factual issue
The “‘“‘third and final step is to determine whether the
opposition demonstrates the existence of a triable, material
factual issue.’”’” (Hamburg, supra, 116 Cal.App.4th at p. 503.)
As set forth below, we reject appellant’s arguments as to the
existence of a triable issue of material fact concerning Nations’
responses to appellant’s policy-limits demands.
Appellant first argues that the trial court “abused its
discretion” when it accepted Nation’s business records as
undisputed evidence just because of their admissibility.
(Boldface & underscoring omitted.) Appellant argues he disputed
the authenticity and credibility of Nations’s claim file concerning
this case. Appellant argues issues of credibility and motivation
are fact questions that cannot be determined on summary
judgment. (Citing McCabe v. American Honda Motor Co. (2002)
100 Cal.App.4th 1111, 1119.)
Code of Civil Procedure section 437c, subdivision (e),
provides, with certain exceptions not relevant here, “summary
judgment shall not be denied on grounds of credibility.” We
therefore reject appellant’s claim that the credibility disputes he
raises create a triable issue of material fact. Instead, we find the
trial court correctly focused on admissibility. Nations’ claim file
and its contents were admissible business records pursuant to
Evidence Code section 1271. (Klem v. Access Ins. Co. (2017) 17
Cal.App.5th 595, 606.) Both the litigation adjuster and
supervisor testified to the reliability and accuracy of the claim
notes and testified it is impossible to alter claim notes after they
have been entered. The records were properly admitted, and
appellant’s credibility challenges do not create a triable issue of
fact.
17
Appellant next claims the trial court abused its discretion
when it “disregarded” all evidence offered by appellant to show
Nations’ bad faith investigation and intentional
misrepresentations. In support of this argument, appellant lists
eight facts appellant insists create a dispute regarding the good
faith of Nations’ investigation. Appellant points out: (1) Nations’
own insured reported Urban was not injured; (2) the police who
arrived at the scene did not report Urban was injured; (3) Urban
testified he never claimed he was injured and no one from
Nations ever took his recorded statement; (4) the vehicle operated
by Urban had only $183 worth of damage; (5) the two injured
parties making claims told Nations Urban was not injured; (6)
Robert Bollar testified he never represented Urban; (7) Nations
did not accept the representations of its own insured, the injured
claimants, or the police investigator, but accepted the
representation of a paralegal at the office of Robert Bollar that
Urban was not injured as true; and (8) Nations has never spoken
directly to Urban to inquire about his injuries.
The facts listed by appellant do not create a triable issue of
material fact as to the reasonableness of Nations’ response to
appellant’s June and July 2017 policy-limit demands. Elizondo,
appellant and Barrera could not competently testify as to
whether Urban intended to make a claim against the policy.
Elizondo testified he had no actual knowledge as to whether
Urban would be making such a claim. Further, the declaration of
Bollar does not undermine Nations’ evidence that Nations’
adjuster spoke to Bollar’s office several times and sent them
letters inquiring whether Urban had been injured in the accident
and would be making a claim. While appellant acknowledges the
evidence does not show Nations knew Urban was not going to
18
make a claim on July 30, 2017, he argues his evidence shows
Nations should have known Urban was not going to make a
claim. Preliminarily, we disagree with appellant’s
characterization of the evidence. Absent confirmation from
Urban’s attorney, Nations could not have ruled out a claim from
Urban. Further, the question is not whether Nations should
have known, but whether Nations acted reasonably in responding
to the policy limit demands. It did so, as a matter of law,
considering its obligation to protect its insured from the
possibility of multiple claims. (Kinder v. Western Pioneer Ins. Co.,
supra, 231 Cal.App.2d at pp. 901–902.)
Appellant insists the trial court’s finding that Nations’
investigation of Urban’s potential claim was still underway on
July 30, 2017, was a fact finding for the jury to decide. However,
appellant has failed to point to any evidence contradicting the
evidence in Nations’ claim file. It was undisputed that
November 28, 2017, was the first time Bollar’s office informed
Nations Urban had not sustained injuries in the accident, and
that Bollar’s office did not confirm this information until
December 14, 2017. At the time of appellant’s two demand
letters, the undisputed evidence showed Nations had not received
confirmation that Urban did not intend to file a claim against
Elizondo’s policy. As such, Nations’ response to appellant’s
policy-limit demands was reasonable as a matter of law. Further,
appellant points to no evidence that in declining to accept or deny
appellant’s June and July 2017 policy-limits demands, Nations
caused appellant any damages, acted or failed to act without
proper cause, or placed its own interests above those of the
insured. (Pinto v. Farmers Ins. Exchange, supra, 61 Cal.App.5th
at p. 692.)
19
Appellant has failed to demonstrate a triable issue of
material fact concerning the limited questions at issue in this
lawsuit.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
of appeal.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
20