Infinity Select Ins. Co. v. Super. Ct.

Filed 8/8/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
INFINITY SELECT INSURANCE COMPANY
et al., F085014
Petitioners, (Super. Ct. No. 19CECG01278 )
v.
OPINION
THE SUPERIOR COURT OF FRESNO
COUNTY,
Respondent;
CAL LEDUC et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. D. Tyler Tharpe, Judge.
Sheppard, Mullin, Richter & Hampton, Peter H. Klee, Thomas R. Proctor and Todd
E. Lundell for Petitioner.
No appearance for Respondent.
Cornwell & Sample, Stephen R. Cornwell; Freedman Law and Vernon J. Reynolds
for Real Parties in Interest.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I., II., VI., VII., and VIII. of the
Discussion.
INTRODUCTION
Petitioners Infinity Select Insurance Company and Infinity Property and Casualty
Corporation (collectively, Infinity) are named defendants in a pending action (Cal LeDuc et
al. v. Infinity Select Insurance Company et al. (Super. Ct. Fresno County, 2019, No.
19CECG01278) (the instant lawsuit).)
The instant lawsuit stems from an earlier 2013 case (the prior action) in which
plaintiffs, named here the real parties in interest, sued Infinity’s insured, Mario Guerra and
his employee Daniel Canchola, for negligence and wrongful death in connection with a
three-vehicle collision (the collision) involving Canchola, two of the plaintiffs, and others.1
At the time of the collision, Guerra and Canchola were insured/protected from liability
under a policy issued by Infinity with a bodily injury policy limit of $50,000 per accident.
Plaintiffs contend it was unlawful for Infinity to issue a policy with such a low limit because
Guerra, as a motor carrier of property, was required to have a minimum of $750,000 in
coverage. Plaintiffs submitted an assumed policy limits settlement demand of $750,000 to
settle the entire action, which was rejected.
The prior action eventually settled in October 2017. Under the terms of the
settlement, plaintiffs and Infinity agreed that (1) plaintiffs’ overall damages total
$3,565,995.23; (2) plaintiffs would dismiss the prior action; (3) plaintiffs would be assigned
Guerra and Canchola’s claims against Infinity for bad faith failure to settle; and (4) plaintiffs
could pursue their legal claims against Infinity to establish Infinity’s liability for damages in
excess of its stated policy limits without having to secure a judgment against Guerra and
Canchola. The instant lawsuit followed.
In the first phase of a bifurcated trial, the trial court adjudicated the first two causes
of action of plaintiffs’ eight causes of action against Infinity: (1) breach of the insurance
contract under Insurance Code section 11580, subdivision (b)(2), where plaintiffs, as
1 (Cal LeDuc et al. v. General Motors LLC, et al. (Super. Ct. Fresno County, 2013, No.
13CECG03811).)
2.
judgment creditors, were seeking judgment of $750,000 against Infinity and (2) declaratory
relief that the policy limits are $750,000. In August 2022, the court issued its ruling. The
primary effect of the ruling was to reform the Infinity policy to provide greater bodily injury
policy limits of $750,000. Per its terms, the ruling “establishes the policy limits for the
jury’s consideration in the upcoming jury trial on the remaining causes of action” including
plaintiffs’ cause of action against Infinity for bad faith breach of the implied covenant of
good faith and fair dealing due to Infinity’s rejection of plaintiffs’ Code of Civil Procedure
section 998 demand of $750,000.
Infinity filed a petition for a writ of mandate challenging the subject ruling. We
granted an alternative writ and stayed the proceedings below.
We conclude the trial court erred in reforming the Infinity policy and will issue a
peremptory writ.
FACTUAL AND PROCEDURAL BACKGROUND
The Infinity Policy
Infinity Select issued the Infinity policy to Guerra for the policy period June 3, 2013,
to June 3, 2014.2 The declarations page of the policy identified the following vehicles as
insured: a 2000 Ford Econoline E250; a 2005 Ford F150; and a 2001 Dodge RAM 3500 (the
RAM truck). It identified the limits of liability for bodily injury at $25,000 for each person
and $50,000 for each accident and for property damage at $15,000 for each accident
(together, “minimum auto liability coverage”).
The Collision and Prior Action
On June 12, 2013, Guerra’s employee, Canchola, while driving the RAM truck with
Guerra’s permission collided with two other vehicles. A passenger in one of the vehicles,
Marsha LeDuc (decedent), was fatally injured. Her daughter and granddaughter were also
2 Although not relevant to the issues before us, it appears from stipulations by the
parties that the Infinity policy may have been in effect only through January 21, 2014.
3.
in the vehicle and suffered injuries. The third vehicle was driven by Guadalupe Medina.
Ms. Medina is not a party to the instant lawsuit.
Plaintiffs include decedent’s daughter, granddaughter, and other heirs. They filed the
prior action against Guerra, Canchola, and others in December 2013. While the action was
pending, plaintiffs served a Code of Civil Procedure section 998 policy limits demand to
settle all outstanding claims against Guerra and Canchola for $750,000—the amount
plaintiffs contend was the minimum required policy limit. The offer was not accepted.
Plaintiffs contend (and Infinity disputes) (1) California law required Guerra to have
insurance with minimum limits of liability of $750,000 by virtue of the fact his RAM truck
was a commercial vehicle; (2) all applicable state law requirements for commercial auto
liability coverage, including state law requirements for the amounts of liability coverage, are
read into the Infinity Policy; and (3) the Infinity Policy provisions provide the policy will
conform to the state law requirements for the amounts of liability coverage and, as a result,
the actual limits of liability are or should be a total of $750,000 for all injuries and deaths.
Plaintiffs rely on provisions of the Motor Carriers of Property Permit Act (MCPPA) (Veh.
Code, § 34600 et seq.)3 to support their claim Infinity was required to issue an insurance
policy with minimum liability coverage of $750,000.
Shortly after trial in the prior action began, the case settled. Plaintiffs and Infinity
stipulated that Guerra and Canchola were negligent; that Canchola was acting in the course
and scope of his employment for Guerra while driving the RAM truck; and that Guerra and
Canchola’s negligence was the cause of decedent’s death and the injuries to her daughter
and granddaughter.
Covenants in the Prior Action Settlement Agreement
Under the terms of the prior action settlement agreement, plaintiffs agreed to dismiss
the prior action with prejudice “after the court in the [prior action] has ruled on the amount
3 All statutory references are to the Vehicle Code unless otherwise noted.
4.
of costs to which the Plaintiffs are entitled which amount … shall be added to the agreed-to
damages set forth below.” As to “agreed-to damages,” the settlement agreement provided,
in relevant part:
“3. Plaintiffs contend that the Infinity Policy has or should have operative
$750,000 limits of liability imposed by law and/or the provisions of the policy
and that Infinity would be, at minimum, liable up to those $750,000 limits of
liability in connection with an entry of judgment in Plaintiffs’ favor in the
[prior action]. Infinity agrees that if Plaintiffs prevail on this contention, then
Plaintiffs will be entitled to recover the sum of $750,000 from Infinity as
damages in the [instant lawsuit]. This provision shall not otherwise limit the
damages to which the plaintiff may otherwise be entitled.
“4. Additionally, Plaintiffs contend that they made a reasonable offer to
settle the [prior action] for an amount within the Infinity Policy’s claimed
$750,000 limits of liability imposed by law and/or the provisions of the policy,
and that Infinity unreasonably rejected that offer. Infinity agrees that if
Plaintiffs can prove this ‘bad faith failure to settle’ claim in the [instant
lawsuit], Plaintiffs may recover from Infinity the full amount of the agreed
upon damages and costs set forth in affirmative covenant number 5 below.
“5. The Parties agree and stipulate that, for purposes of determining the
potentially recoverable damages in the [instant lawsuit], the amount of
damages which the jury would have found and which would have been
reduced to judgment in the [prior action] are:
“(i) damages for the wrongful death claim arising out of the death of
[decedent], which the parties agree has a value of $2,562,941.28;
“(ii) damages for [decedent’s daughter’s] injury claim, which the
parties agree has a value of $79,677.52;
“(iii) damages for [decedent’s granddaughter’s] injury claim, which
the parties agree has a value of $136,079.64; and
5.
“(iv) Plaintiffs’ recoverable costs of suit in the [prior action] ….”4
Plaintiffs obtained an award of costs in the prior action in the amount of $836,326.79.
Additional Stipulated and Admitted Facts
The first phase of trial in the instant lawsuit was a bench trial on the first two causes
of action. In advance of the trial date, the parties stipulated, among other things, (1) the
gross vehicle weight rating (GVWR) for the RAM truck was 10,001 to 14,000 pounds; (2)
based on the GVWR of the RAM truck and “the manner in which it was being used during
the term of the [Infinity] policy, … Guerra was a ‘motor carrier of property,’ as defined by
… section 34601”; (3) “Infinity did not issue a policy endorsement using [Department of
Motor Vehicles (DMV)] form 67 MCP [hereafter, DMV Form 67 policy endorsement] upon
issuance of the policy in either May 2012 or June 2013” (in essence, this endorsement
incorporates provisions of the MCPPA into an insurance policy); (4) “Infinity did not issue a
DMV form 65 [hereafter, DMV Form 65 certificate of insurance] to the [DMV] prior to the
[collision]” (in essence, an insurer who issues such a certificate, certifies the insurance
policy is being issued in compliance with the MCPPA); (5) the RAM truck was an “
‘insured auto’ ” as defined in the policies; (6) “plaintiffs have an assumed judgment of
$3,615,005.23 plus interest from the date of the dismissal of the [prior] action”5; and
4 In addition, Infinity agreed the “amounts set forth in [paragraph] 5 above may be
presented to the jury in the [instant lawsuit] as the amount of a ‘judgment’ entered in the
[prior action]” and that [Infinity] would not “assert any defense in the [instant lawsuit] based
on: (1) the fact that no verdict was rendered by the jury and/or no final judgment was
entered in the [prior action] …; (2) the fact that Plaintiffs do not have an operative
assignment from Guerra and/or Canchola of their respective rights under the [subject]
Infinity Policy …; and (3) any argument that the bankruptcy of Guerra and/or Canchola
precludes any of the relief Plaintiffs may seek from Infinity.” (According to allegations
contained in plaintiffs’ original complaint, Guerra and Canchola both declared bankruptcy at
some point prior to trial.)
5 The parties have not explained how the amount of the assumed judgment was
calculated. The amount is very close to the sum of the agreed-to damages set forth in
paragraph five of the prior action settlement agreement plus the cost award issued by the
trial court.
6.
(7) Infinity Select paid plaintiffs the $50,000 policy limit of the Infinity policy to be applied
as a credit against a larger judgment, if any, obtained in the instant lawsuit. 6
The following additional facts were among those admitted by plaintiffs in their return
by verified answer to the writ petition: (1) Guerra applied for insurance from Infinity
through his broker; (2) Guerra, through his broker, applied for minimum auto liability
coverage; (3) Guerra’s application for insurance contained checkboxes to indicate whether a
DMV filing was necessary. The “No” box was checked.
Issues Decided by the Trial Court in the First Phase of Trial
The first phase of trial lasted two days. After the presentation of evidence, the parties
executed a stipulation on the issues they wanted the trial court to decide. On August 3,
2022, the trial court issued the subject ruling and resolved the parties’ requested issues in the
following manner. (The court’s response to issues presented by the parties is in bold and
underlined type below.)
(1) “Is an insurance company that issues a policy to a motor carrier of property, as
defined by the [MCPPA], required to issue a policy with limits of at least $750,000? Yes.”
(2) “Were the limits of the subject Infinity policy amended by law and/or express
policy provisions as of the date of issuance to provide limits of $750,000? Yes.”
(3) “Upon issuing a policy insuring a motor carrier of property, was Infinity
required under California Code of Regulations title 13, section 220.06, to issue a [DMV
Form 65 certificate of insurance] … and issue a DMV [F]orm 67 [policy endorsement] ….?
Yes, as to both forms.”
6 Plaintiffs state that Infinity issued a DMV Form 65 certificate of insurance to the
DMV in October 2013, several months after the collision occurred. Although plaintiffs
make several references to this fact, they do not adequately explain the relevance of this
post-collision insurance and certification to Infinity’s obligations at the time it issued the
Infinity policy. Moreover, we are unable to discern the relevance of this fact.
7.
(4) “Are the … plaintiffs, as judgment creditors pursuant to Insurance Code
section 11580, subdivision (b)(2), entitled to judgment for $750,000, less credits to which
Infinity is entitled, plus costs recovered in the underlying case as well as interest pursuant to
the Settlement Agreement as of the date of the dismissal of the underlying action in an
amount to be determined? Yes.”
(5) “Are the provisions of the MCPPA read into an insurance policy that was
issued to a motor carrier of property, as defined by Vehicle Code section 34601, where (i)
the insurance company did not file a DMV [Form] 65 certificate of insurance with the DMV
or otherwise certify to the DMV that the policy complies with the MCPPA and (ii) the
insurance policy was issued for less than $750,000? Yes.”
(6) “Where an insurance policy has been issued to a motor carrier of property, but
the insurance company has not filed a DMV [Form] 65 … certificate of insurance, or
otherwise certified that its insurance policy complies with the MCPPA, is the insurance
policy governed by the MCPPA or Vehicle Code section 16450 and Insurance Code section
11580.05? Such a policy is governed by Vehicle Code section 16450 and Insurance
Code section 11580.05 subject to additional requirements imposed by the MCPPA.”
(Boldface and underlining added.)
(7) “Under the terms of the October 2017 settlement agreement, are the …
plaintiffs entitled to recover under the first cause of action as Insurance Code section 11580
judgment creditors? Yes.
“If so, under what legal theory are they entitled to recover as judgment
creditors? The theories alleged in the first and second causes of action of the
Second Amended Complaint.
“If so, what damages are they entitled to recover? $700,000 plus costs
awarded in the underlying case and awardable in this case, plus accumulated
interest in an amount to be determined, plus possible attorney fees in an amount
8.
to be determined. The Settlement Agreement (Exh. 208) does not limit damages
as Infinity contends.
“The bench trial resolves the issue of recovery as to the limits of the Infinity
policy for purposes of both the declaratory relief and the entitlement to a creditor’s
claim under Insurance Code section 11580, subdivision (b)(2). It also establishes the
policy limits for the jury’s consideration in the upcoming jury trial on the remaining
causes of action.” (Boldface and underlining added.)
The Writ Petition and Return by Verified Answer
On September 29, 2022, Infinity timely filed the writ petition. Infinity requests this
court direct respondent trial court to vacate the subject ruling and “enter a new order
declaring the Infinity Policy limit is $50,000.”
Plaintiffs filed their return. In addition to responding to the allegations of the
petition, plaintiffs have alleged three affirmative defenses they contend bar issuance of a
writ: the equitable doctrine of laches (on grounds “Infinity could have filed a motion to
clarify the scope of the trial court’s ruling but failed to do so, and thereby has unreasonably
delayed final disposition in this case”); the equitable doctrine of waiver (on grounds
“Infinity asked the court to rule on a question of law, received an answer, and now
complains about the scope of the question”); and the equitable doctrine of exhaustion (on
grounds “Infinity should have asked the trial court to clarify its ruling if it felt the ruling on
its question was worded too broadly but failed to do so”, citing Mitchell v. Superior Court
(1984) 37 Cal.3d 268).
DISCUSSION
I. PLAINTIFFS’ REQUEST FOR JUDICIAL NOTICE
Plaintiffs request this court take judicial notice of the following: “1. California
Assembly Bill History, 1995–1996 Regular Session, Assembly Bill 1683, Complete Bill
History…. [¶] 2. California Bill Analysis, Senate Floor, 1995–1996 Regular Session,
9.
Assembly Bill 1683…. [¶] 3. Statutes of California and Digests of Measures, 1976, Vol. 3,
Chapter 1145, Sec. 5…. [¶] 4. State of California—Department of Insurance, Certificate of
Authority Application located at www.insurance.ca.gov/0250-insurers/0300-insurers/0100-
applications/certificate-of-authority/cert-of-authority-forms/upload/CDI-015.pdf….”
Infinity objects to plaintiffs’ request for judicial notice on the following grounds: (1)
the request does not comply with California Rules of Court, rule 8.252(a)(2); and (2) the
matter to be judicially noticed is irrelevant. We deferred ruling on plaintiffs’ request
pending consideration of the petition on its merits.
California Rules of Court, rule 8.252(a)(2) requires a party requesting judicial notice
by a court of appeal to state: “(A) Why the matter to be noticed is relevant to the appeal;
[¶] (B) Whether the matter to be noticed was presented to the trial court and, if so, whether
judicial notice was taken by that court; [¶] (C) if judicial notice of the matter was not taken
by the trial court, why the matter is subject to judicial notice under Evidence Code section
451, 452, or 453; and [¶] (D) Whether the matter to be noticed relates to proceedings
occurring after the order or judgment that is the subject of the appeal.” Plaintiffs’ motion
does not contain any of the information required by the rule. As a result, we now deny the
motion. (See Kinney v. Overton (2007) 153 Cal.App.4th 482, 497, fn. 7.)
However, we have reviewed the documents attached to plaintiffs’ request and
conclude our opinion would be unaffected by the information contained therein.
II. STANDARD OF REVIEW
The parties agree the petition presents a “question of law, requiring interpretation of
the MCPPA and application of that statutory scheme to the undisputed facts” and that the
subject ruling should be reviewed de novo. We also agree. (Le Gault v. Erickson (1999) 70
Cal.App.4th 369, 372 [“ ‘It is well settled that the interpretation and application of a
statutory scheme to an undisputed set of facts is a question of law … which is subject to de
novo review on appeal.’ ”].) In its subject ruling, the trial court wrote, “[p]laintiffs have
10.
cited many disputed facts in advancing their arguments on these issues (e.g. Guerra’s
application actions). The court has not relied on those disputed facts in making these
rulings.” Thus, it appears the court ruled solely on the basis of undisputed facts before it.
III. PREFATORY COMMENTS
Because this case is presented to us as one based on undisputed facts, it is perhaps
helpful to state what this case (as presented to us) is not about. The undisputed facts, as
presented to us, do not indicate that Guerra ever requested insurance in order to comply with
the MCPPA, or that he requested Infinity file a DMV Form 65 certificate of insurance or
issue a DMV Form 67 policy endorsement. Similarly, the undisputed evidence before us
does not suggest Infinity ever represented to Guerra that the Infinity policy would comply
with MCPPA requirements, or that Infinity would file such certificate of insurance or issue
such endorsement. Rather, Infinity issued the type of insurance actually requested in the
application Guerra submitted through his broker.
IV. THE MCPPA AND RELATED DMV REGULATIONS
A motor carrier of property is subject to heightened insurance coverage requirements
under the MCPPA. Subject to exceptions not relevant here, former section 34601 of the
MCPPA7 provided, in relevant part, “[a]s used in this division, ‘motor carrier of
property’ means any person who operates any commercial motor vehicle as defined in
subdivision (c).” (Former § 34601, subd. (a).) It further provided “[a]s used in this
division, except as provided in paragraph (2), a ‘commercial motor vehicle’ means … any
motor truck of two of more axles that is more than 10,000 pounds [GVWR], and any other
motor vehicle used to transport property for compensation.” (Former § 34601, subd. (c)(1).)
As noted above, the parties stipulated Guerra was a “motor carrier of property” by virtue of
7 Some, but not all, of the relevant statutes discussed in this opinion have been
amended since the date of the collision in 2013. Wherever we refer to a “former” version
of a statute in the Vehicle Code, it is because that former version was in effect in 2013.
11.
the RAM truck’s GVWR and the manner in which he used it during the term of the Infinity
policy.
Except in certain situations not relevant here, a motor carrier of property “shall not
operate a commercial motor vehicle on any public highway in this state” unless it has
complied with certain statutory requirements including the holding of a “valid motor carrier
permit” issued by the DMV. (Former § 34620, subd. (a).)
To obtain a valid motor carrier permit, a motor carrier of property must, among other
things, provide the DMV with “[e]vidence of financial responsibility.” (Former § 34621,
subd. (b)(6).) Proof of financial responsibility may take the form of a compliant certificate
of insurance, surety bond, or certificate of self-insurance deposited with the DMV.8
(§ 34631, subds. (a)–(c).) “A motor carrier permit shall not be granted” until a certificate of
insurance meeting the “minimum insurance requirements contained in Section 34631.5” is
filed with the DMV. (§ 34630, subd. (a).)
Section 34631.5 provides, in relevant part:
“(a)(1) Every motor carrier of property as defined in Section 34601, except
those subject to paragraph (2), (3), or (4)[9], shall provide and thereafter
continue in effect adequate protection against liability imposed by law upon
those carriers for the payment of damages in the amount of a combined single
limit of not less than seven hundred fifty thousand dollars ($750,000) on
account of bodily injuries to, or death of, one or more persons, or damage to or
destruction of, property other than property being transported by the carrier for
any shipper or consignee whether the property of one or more than one
claimant in any one accident.” (§ 34631.5, subd. (a)(1).)
8 Qualifying nonprofit organizations may also prove financial responsibility by
submitting a form indicating “coverage is provided by a charitable risk pool operating under
Section 5005.1 of the Corporations Code.” (§ 34631, subd. (d).)
9 Paragraphs (2), (3) and (4) of subdivision (a) of section 34631.5 provide different
mandatory minimum limits of liability coverage depending on, for example, the type of
material being transported.
12.
A motor carrier of property who operates a commercial motor vehicle in violation of
insurance permitting requirements is subject to having his or her permit suspended
(assuming one has been obtained) (§§ 34631.5, subd. (b)(5), 34632, subd. (b)), cessation of
operations (§ 34631.5, subd. (b)(7)), and misdemeanor fines and/or imprisonment
(§§ 34660, subd. (a), 34661). Other violations of the MCPPA may result in additional
sanctions against a motor carrier of property including issuance of an injunction to prohibit
the carrier’s continued operation (§ 34660, subd. (c)) and impoundment of the carrier’s
vehicle(s) (id. at subd. (d)).
DMV regulations10 provide three methods by which a motor carrier of property may
prove the financial responsibility necessary to obtain a motor carrier permit: (1) a DMV
Form 65 certificate of insurance pursuant to subdivision (a) of section 34631; (2) a surety
bond pursuant to subdivision (b) of section 34631; or (3) a certificate of self-insurance
pursuant to subdivision (c) of section 34631. (Cal. Code Regs., tit. 13, § 220.06, subd. (a).)
These regulations further provide that the DMV Form 65 certificate of insurance “shall be
submitted to the [DMV] by the motor carrier’s insurance provider” (id., at subd. (a)(1)); and
“[p]roof of financial responsibility pursuant to … section 16000 et seq., shall not be
substituted for the proof required for a Motor Carrier Permit ….” (Id., at subd. (a)(2).) In
addition, DMV regulations provide that a DMV Form 67 policy endorsement “amending the
insurance policy to comply with insurance requirements imposed by the [MCPPA] … shall
be attached to and made part of, the insurance policy insuring the motor carrier.” (Cal.
Code Regs., tit. 13, § 220.06, subd. (b).)
The DMV Form 65 certificate of insurance provides, among other things, that the
insurer certifies (1) the motor carrier of property has insurance “within the coverage limits
10 The MCPPA authorizes the DMV to “adopt reasonable rules and regulations
necessary to administer” the act. (§ 34604.) The DMV is further authorized to “adopt rules
and regulations necessary to administer civil sanction proceedings and impose fines for
failure to comply with” the act. (Ibid.)
13.
identified [in the certificate] as required by … Section 34630, 34631.5 and 34640, and by
Part 387 of Title 49 of the Code of Federal Regulations”; (2) the “policy covers all vehicles
used in conducting the service performed by the Insured for which a motor carrier permit is
required whether or not said vehicle is listed in the insurance policy”; and (3) “[a] fully
executed [DMV Form 67 policy] endorsement … is attached to the … policy to conform to
the requirements of the [MCPPA] … and the rules and regulations of the DMV.” (DMV
Form MC 65 M (rev.12/2012).) Moreover, a certifying insurer agrees the certificate “shall
not be canceled on less than thirty (30) days’ notice from the Insurer to the DMV ….”
(Ibid.)
The DMV Form 67 policy endorsement provides, among other things, that the insurer
agrees (1) “[t]o pay, consistent with the minimum insurance coverage required by …
Section 34631.5, and consistent with the limits it provides herein, any legal liability of
insured for bodily injury, death, or property damage arising out of the operation,
maintenance, or use of any vehicle(s) for which a motor carrier permit is required, whether
or not such vehicle(s) is described in the attached policy[]; (2) “[n]o provision, stipulation,
or limitation contained in the attached policy or any endorsement shall relieve insurer from
obligations arising out of [the e]ndorsement or the [MCPPA]”; and (3) the policy “shall not
be cancelled on less than thirty (30) days’ notice from the Insurer to the DMV.” (DMV
Form MC 67 M (rev. 10/2010).)
The parties have not cited to any statute or regulation that expressly or impliedly
authorizes a court to reform the coverage limits of the Infinity policy and we have not found
any in our review.
V. UNDER THE UNDISPUTED FACTS AS PRESENTED, AN INSURER THAT
ISSUES AN INSURANCE POLICY TO A MOTOR CARRIER OF PROPERTY IS
NOT REQUIRED TO PROVIDE COVERAGE IN THE AMOUNT OF $750,000
“Our fundamental task in construing a statute is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining
14.
the statutory language, giving the words their usual and ordinary meaning. [Citation.] If
there is no ambiguity, then we presume the lawmakers meant what they said, and the plain
meaning of the language governs. [Citations.] If, however, the statutory terms are
ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be
achieved and the legislative history. [Citation.] In such circumstances, we ‘ “select the
construction that comports most closely with the apparent intent of the Legislature, with a
view to promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.” ’ ” (Day v. City of Fontana (2001)
25 Cal.4th 268, 272.)
A. The Motor Carrier of Property—Not the Insurer—Bears Ultimate Responsibility for
Meeting the Requirements Necessary to Obtain a Motor Carrier Permit
Infinity contends the plain language of the MCPPA demonstrates it imposes
obligations on motor carriers but not insurers who have not certified compliance with the
MCPPA. In general, we agree.
Former section 34620 prohibits a motor carrier of property from “operat[ing] a
commercial motor vehicle on any public highway” unless it has met certain requirements
including “hold[ing] a valid motor carrier permit issued … by the [DMV].” (Former
§ 34620, subd. (a).) “The [DMV] shall issue a motor carrier permit upon the carrier’s
written request, compliance with [among other things] Section[] 34630” and payment of the
required fee. (Ibid., italics added.) As noted above, section 34630 provides a motor carrier
permit “shall not be granted” unless proof of financial responsibility is filed with the DMV.
(§ 34630, subd. (a).) Proof of financial responsibility in the form of a certificate of
insurance must meet the requirements of section 34631.5. Subject to certain exceptions not
applicable here, section 34631.5 provides “[e]very motor carrier of property … shall
provide and thereafter continue in effect” insurance coverage meeting the $750,000
minimum coverage limits. (§ 34631.5, subd. (a), italics added.)
15.
The MCPPA imposes further obligations on motor carriers of property. (§ 34632
[“Every motor carrier of property shall furnish the [DMV] annually, …, a list, prepared
under oath, of all vehicles, described in Section 34601, used in transportation during the
preceding year”]; § 34633 [“Every motor carrier of property with a carrier fleet of 20 or
more commercial motor vehicles” are subject to additional reporting requirements].)
If the motor carrier’s insurance policy is certified, the policy “shall provide coverage
with respect to the operation, maintenance, or use of any vehicle for which a permit is
required, although the vehicle may not be specifically described in the policy.” (§§ 34630,
subd. (a), 34631.5, subd. (b)(1).) In addition, “[t]he certificate of insurance shall not be
cancelable on less than 30 days’ written notice from the insurer to the [DMV] except in the
event of cessation of operations as a permitted motor carrier of property[]” (§§ 34630, subd.
(b), 34631.5, subd. (b)(3)) and “shall remain in full force and effect until cancelled.”
(§ 34631.5, subd. (b)(4).) These obligations adhere to an insurer that has certified an
insurance policy. The plain language of the statute does not impose any requirements upon
an insurer that has not certified an insurance policy.
In interpreting provisions of the Highway Carriers’ Act (Pub. Util. Code, former
§ 3501 et seq.), the statutory scheme that regulated motor carriers of property prior to
enactment of the MCPPA, our state Supreme Court noted a commercial highway carrier
“bears the ultimate responsibility for maintaining adequate liability coverage.”
(Transamerica Ins. Co. v. Tab Transportation, Inc. (1995) 12 Cal.4th 389, 404 (Tab).)
Nothing in the text of the above MCPPA provisions operates to transfer such a
responsibility to an insurer who has not certified an insurance policy for the purpose of
complying with the MCPPA, and who has not included an endorsement incorporating the
provisions of the MCPPA into its policy.
Plaintiffs point to California Code of Regulations, title 13, section 220.06,
subdivision (a) in support of their contention that Infinity was required to issue a compliant
MCPPA policy with liability limits of $750,000. That regulation states acceptable proof of
16.
insurance (i.e., one form of financial responsibility) under the MCPPA “shall be submitted
to the department in the form of a [DMV Form 65 certificate of insurance]”; said certificate
“shall be submitted to the [DMV] by the motor carrier’s insurance provider”; and that
“[p]roof of financial responsibility pursuant to … Division 7, … section 16000 et seq., shall
not be substituted for the proof required for a Motor Carrier Permit.” (Cal. Code Regs., tit.
13, § 220.06, subd. (a)(1), (2).) Moreover, the regulation provides that a DMV Form 67
policy endorsement “amending the insurance policy to comply with insurance requirements
imposed by the [MCPPA], commencing with … section 34630, shall be attached to and
made part of, the insurance policy insuring the motor carrier.” (Cal. Code Regs., tit. 13,
§ 220.06, subd. (b).)
We read the above regulation as providing that when an insurer issues a policy with
the purpose of meeting the requirements of the MCPPA, it is required to (1) issue a DMV
Form 65 certificate of insurance and to submit the certificate to the DMV; and (2) attach a
DMV Form 67 policy endorsement to the policy. Nothing in the regulation suggests that an
insurer who does not issue a policy for that purpose is nevertheless required to issue the
DMV Form 65 certificate of insurance or include the DMV Form 67 policy endorsement in
the policy it issues.
B. Even Where An Insurer Intends to Issue and Certify a Policy Under Section 34631.5,
It Is Not Obligated to Issue the Policy in the Full Amount of $750,000
Infinity contends a motor carrier of property may meet its MCPPA insurance
obligations by purchasing more than one policy so long as the aggregate limits of the
policies procured total $750,000. Plaintiffs’ counsel conceded this point at oral argument.
We too agree.
First, we note section 34630 appears to contemplate that a certificate of insurance
may be issued for less than the full $750,000 coverage requirement. It provides, in relevant
part, “[a] motor carrier permit shall not be granted … until there is filed with the department
proof of financial responsibility in the form of a currently effective certificate of insurance,
17.
… if the policy represented by the certificate meets the minimum insurance requirements
contained in Section 34631.5.” (§ 34630, subd. (a), italics added.) The Legislature’s use of
the word “if” in subdivision (a) of section 34630 suggests the Legislature contemplated a
certified policy may or may not meet the requirement contained in section 34631.5.11
Second, DMV regulations support Infinity’s proffered interpretation. The DMV
Form 65 certificate of insurance allows an insurer to designate whether the policy issued is
primary or excess insurance.12 It also allows an insurer to denote, by checking the
appropriate box, whether primary coverage provided is “below statutory minimum limits” or
“equal to or exceeding statutory minimum limits.” (DMV Form MC 65 M (rev. 12/2012),
italics added.) Similarly, for excess coverage, the form allows an insurer to denote, again by
checking the appropriate box, whether excess coverage provided is “between primary
coverage and statutory minimum limits” or “provided at or above statutory minimum
limits.”13 (Ibid.) The DMV Form 65 certificate of insurance is expressly incorporated into
the DMV regulation. (Cal. Code Regs., tit. 13, § 220.06, subd. (a).)
Thus, even where an insurer provides coverage for the purpose of meeting a motor
carrier of property’s MCPPA requirements, the insurer is allowed to issue a policy with
limits below the statutory requirement of $750,000. It is up to the insured motor carrier of
11 If the Legislature wanted to mandate that a certified policy be issued for no less than
the minimum insurance requirement, it could have crafted legislation to so provide.
12 “ ‘Primary coverage is insurance coverage whereby, under the terms of the policy,
liability attaches immediately upon the happening of the occurrence that gives rise to
liability. [Citation.] Primary insurers generally have the primary duty of defense. [¶]
‘Excess ’ or secondary coverage is coverage whereby, under the terms of the policy, liability
attaches only after a predetermined amount of primary coverage has been exhausted.”
(Century Surety Co. v. United Pacific Ins. Co. (2003) 109 Cal.App.4th 1246, 1255.)
13 At oral argument, plaintiffs’ counsel acknowledged the DMV Form 65 certificate of
insurance provides a space for an insurance company to indicate whether the policy being
certified contains coverage limits below statutory minimum limits.
18.
property to secure additional insurance or to comply with the permitting requirements in
other authorized ways (e.g., a surety bond or certificate of self-insurance).
Consequently, even if we were to accept the premise that an insurer must issue an
MCPPA compliant insurance policy to a motor carrier of property under the undisputed
facts as presented to us—a premise that we do not adopt—nothing in the MCPPA statutes or
DMV regulations support reforming the Infinity policy to provide coverage in the full
amount of the $750,000.
C. Evidence of Insurance Is Not The Only Means of Complying with the MCPPA
Financial Responsibility Requirements and Infinity Was Under No Duty to Determine
Whether Guerra Had Otherwise Complied With MCPPA Requirements
Infinity contends the subject ruling “ignores the fact that a motor carrier is not
actually required to purchase an insurance policy in that amount.” Again, we agree.
As discussed ante, a motor carrier of property may comply with the MCPPA in
several different ways—e.g., through one or more certificates of insurance, a surety bond, or
a certificate of self-insurance. (§ 34631, subds. (a)–(c).) It is worth noting that the
undisputed facts do not suggest Infinity knew, at the time it issued the Infinity policy,
whether Guerra had otherwise met the requirements for a motor carrier permit through other
certificates of insurance, a surety bond, or certificate of self-insurance. However, our
decision is not dependent upon Infinity’s lack of such knowledge.
Infinity, as an insurance carrier, and not a broker, had no duty to ensure that Guerra
met the insurance requirements necessary for a motor carrier permit.14 In Gibson v.
Government Employees Ins. Co. (1984) 162 Cal.App.3d 441, this court considered the
plaintiffs’ claim that its insurer breached its fiduciary duty to plaintiffs by failing to advise
14 “ ‘An [insurance] agent’s primary duty is to represent the insurer in transactions with
insurance applicants and policyholders.’ [Citation.] ‘In contrast, a broker’s primary duty is
to represent the applicant/insured, and his or her actions are not generally binding on the
insurer. “Put quite simply, insurance brokers, with no binding authority, are not agents of
insurance companies ….” ’ ” (Mercury Ins. Co. v. Lara (2019) 35 Cal.App.5th 82, 88.)
19.
them on the “availability and potential need for ‘underinsured motorist’ coverage, as well as
the inadequacy of plaintiffs’ $3,000 medical payments benefit.” (Id. at p. 443.) Although
the plaintiffs had been customers of the insurer for 20 years, this court held that “absent
some conduct on the part of the insurer consistent with assuming broader duties, the
insurer’s fiduciary duties are limited to those arising out of the insurance contract ….”
(Ibid., italics added.) The court noted that “an insured person’s initial decision to obtain
insurance and the corresponding decision of an insurer to offer coverage remain, at the
inception of the contract at least, an arm’s length transaction to be governed by traditional
standards of freedom to contract.” (Id. at p. 448.)
In Hess v Transamerica Occidental Life Ins. Co. (1987) 190 Cal.App.3d 941 (Hess),
a plaintiff was an applicant for “key person” life insurance and was discovered to have high
blood pressure after she underwent a medical exam at the insurer’s request. (Id. at p. 943.)
As a condition of insuring the plaintiff, the insurer required her and her company to pay a
$1,000 premium surcharge each quarter. (Ibid.) The plaintiff agreed and obtained insurance
by paying the higher premiums. (Ibid.) Approximately seven years later, the plaintiff
successfully petitioned her insurer to drop the premium surcharge. (Ibid.) She then sued the
insurer for reformation of the contract and to recoup $60,000 in premium surcharges
previously paid, under the theory the insurer had a “duty of good faith and fair dealing
during the period prior to the inception of the contract” and that it breached the duty by
“failing to adequately investigate” the plaintiff’s health condition. (Ibid.) Relying, in part,
on Gibson, the Hess court reaffirmed the principle that an insurance contract, at its
inception, is “an arm’s length transaction … governed by traditional standards of freedom to
contract.” (Id. at p. 945.) Hess concluded that, absent allegations of fraud or fraudulent
inducement, the insurer’s precontract conduct could not support a cause of action for bad
faith. (Ibid.) Infinity cites to numerous cases holding similarly.
Plaintiffs contend Gibson is irrelevant because it dealt with a policy of insurance that
actually met the minimum policy limits required by law whereas, here, the Infinity policy
20.
did not meet the minimum coverage requirements for a motor carrier permit. In their
posttrial brief, plaintiffs explained their position as follows: “Plaintiffs do not contend a
pre-contractual duty existed to advise Guerra of the need for MCPPA coverage. Rather,
Plaintiffs contend that Infinity, once it issues a policy to [a motor carrier of property], may
not write coverage less than the amount required by law.” However, as discussed above,
motor carriers of property are allowed to stack coverage through multiple policies in order
to meet the greater policy limits required for a motor carrier permit.
Plaintiffs further contend Hess does not stand for the “proposition that an insurer has
no duty to evaluate an applicant’s insurance needs, to spontaneously procure a policy with a
certain amount of coverage, or … to recommend that the prospective insured buy a certain
amount of coverage” and that it is not on point because it “dealt with whether an insurer can
require a prospective insured to undergo a medical examination to confirm insurability and
concluded in the affirmative.” We are not persuaded.
We conclude the principles set forth in Gibson and Hess are relevant to this case.
Absent the existence of a statutory duty on Infinity’s part to provide greater coverage to
Guerra than he requested, and absent proof of the existence of fraud, fraudulent
misrepresentation, or assumption of a greater duty, Infinity had no duty to provide Guerra
insurance he did not request or apply for. “It is the insured’s responsibility to advise the
agent of the insurance he wants, including the limits of the policy to be issued.” (Jones v.
Grewe (1987) 189 Cal.App.3d 950, 956; Everett v. State Farm General Ins. Co. (2008) 162
Cal.App.4th 649, 660 [“It is up to the insured to determine whether he or she has sufficient
coverage for his or her needs.”].)
As mentioned, even where an insurer and insured intend that the policy issued be
used to apply for a motor carrier permit—a situation not presented by the undisputed facts
in the instant lawsuit—the insurer may issue a policy with a lower limit (e.g., $50,000) and
that policy, together with other policies aggregating to a larger limit (i.e., $750,000), may
suffice for permitting purposes. Because we conclude that the MCPPA’s required coverage
21.
limits may be met by combining multiple policies, we need not consider whether certain
uses of the RAM truck were excepted from the financial responsibility requirements of the
MCPPA.
Plaintiffs rely on Barrera v. State Farm Mut. Automobile Ins. Co. (1969) 71 Cal.2d
659 (Barrera) and Fireman’s Fund American Ins. Co. v. Escobedo (1978) 80 Cal.App.3d
610 (Fireman’s Fund) for the proposition that Infinity had a duty to investigate whether
Guerra required a motor carrier permit and whether the insurance it was providing Guerra
was sufficient to meet permitting requirements. Plaintiffs’ reliance is misplaced.
The question before the Barrera court was whether an insurer could avoid liability
under a policy of insurance if it subsequently discovers that the insured made material
misrepresentations in applying for the policy. It concluded that “an automobile liability
insurer must undertake a reasonable investigation of the insured’s insurability within a
reasonable period of time from the acceptance of the application and the issuance of a
policy” and that an insurer may not avoid liability on the policy by “indefinitely …
postpon[ing] its investigation of insurability until such time as it is financially opportune to
do so”—i.e., by waiting until a claim against the policy is made. (Barrera, supra, 71 Cal.2d
at pp. 663, 671.) The court held, “failure of the … insurer reasonably to investigate the
insurability of the insured within a reasonable time after issuance of the policy, … , results
in the loss of the carrier’s right to rescind ….” (Id. at p. 681.) Fireman’s Fund cited
Barrera for the same proposition. (Fireman’s Fund, supra, 80 Cal.App.3d at pp. 619–620.)
The situation here is different from that in Barrera and Fireman’s Fund. Infinity is
not attempting to rescind the Infinity policy nor is it attempting to avoid liability under the
policy. To the contrary, it has paid the full policy limits of the Infinity policy to plaintiffs.
Thus, the duty announced in Barrera and Fireman’s Fund has no application here.
D. Samson and Related Cases Do Not Support Reforming the Infinity Policy to Provide
$750,000 in Coverage
22.
The trial court ruled that “an insurance company that issues a policy to a motor
carrier of property, as defined by the [MCPPA], [is] required to issue a policy with limits of
at least $750,000.” In so ruling, the trial court stated, “[t]o hold otherwise would allow
Infinity to thwart its financial responsibility requirements by writing a policy for less than
the statutory minimum requirement. This ruling is consistent with the law and the terms of
the subject policy[,]” citing Samson v. Transamerica Ins. Co. (1981) 30 Cal.3d 220, 231
(Samson), and the provision of the Infinity policy which reads:
“TERMS OF POLICY CONFORMED TO STATUTES [¶] Terms of this
policy which are in conflict with the statutes of the state in which we issue this
policy are hereby amended to conform to such statutes.” (Unnecessary
boldface omitted.)
As discussed ante, we reject the premise that an insurer may not issue a motor carrier
of property a policy with coverage limits less than the minimum required coverage
necessary to obtain a motor carrier permit. As explained, the MCPPA contemplates that a
policy with coverage limits less than $750,000 may issue to a motor carrier of property, and
relevant DMV regulations expressly allow a motor carrier to stack policies to meet the
carrier’s financial responsibility requirements. (§ 34631.5, subd. (a)(1); Cal. Code Regs., tit.
13, § 220.06, subd. (a); DMV Form MC 65 M (rev. 12/2012).) Absent certification of
greater coverage; or facts suggesting either that Guerra requested such certification or
greater coverage and/or that Infinity represented it would provide such certification or
greater coverage; or facts suggesting Infinity assumed greater obligations than those
provided in the Infinity policy, we conclude reforming the Infinity policy to provide greater
coverage is unwarranted and beyond any requirement imposed at law.
The Samson case, relied upon by the trial court, does not support the court’s
determination. In Samson, the insured drove his pickup on the wrong side of the road and
collided into another vehicle, killing one of its occupants and injuring three others.
(Samson, supra, 30 Cal.3d at p. 224.) The insured was licensed as a “radial highway
common carrier” under the Highway Carriers’ Act (Pub. Util. Code, former § 3501 et seq.)
23.
but was on a personal errand and not performing services as a common carrier at the time of
the accident. (Samson, supra, at pp. 225–226.)
The insured carried two insurance policies from separate insurance companies.
(Samson, supra, 30 Cal.3d at pp. 224–225.) His pickup was insured for $100,000 from one
company. (Id. at p. 224.) His other vehicle, a tractor truck, and two trailers were insured by
another company for $300,000. (Id. at p. 225.) The latter policy contained an endorsement
prepared by the Public Utilities Commission (PUC) which stated it would cover “any final
judgment against the insured for bodily injury … ‘resulting from the operation,
maintenance, or use of motor vehicles for which a … permit is required or has been issued
to the insured by the [PUC], regardless of whether such motor vehicles are specifically
described in the policy or not.’ ” (Ibid.) The endorsement also stated its purpose was to “
‘assure compliance by the insured, as a motor carrier of property, with General Order No.
100-Series’ ” (id. at p. 225, fn. 2), which stated the required total liability limits of a
highway carrier’s insurance policy for bodily injury or death was $300,000 (id. at p. 226, fn.
3) and covered “each vehicle used or to be used in conducting the service performed by …
such highway carrier” (ibid.).
The insurer that issued the $100,000 policy paid the claimant survivors the policy
limits. (Samson, supra, 30 Cal.3d at p. 228.) The insurer that issued the $300,000 policy
denied coverage. (Id. at p. 227.) After the survivors obtained a judgment against the
insured for $725,000, and an assignment of the insured’s claims against the latter insurer,
they sued the insurer for the $300,000 policy limit and $325,000 for bad faith refusal to
settle. (Id. at p. 229.)
The Samson court noted the insured’s pickup truck had commercial plates and the
insured admitted the pickup was used “regularly in his trucking business” although it was
not used to actually transport property. (Samson, supra, 30 Cal.3d at pp. 226, 232.) The
court determined the “service performed” by the insured, as that phrase was used in the
general order, “include[d] ‘every service in connection with or incidental to the
24.
transportation of property ….’ ” (Id. at p. 234.) The court determined the services provided
in the pickup truck were sufficient to bring it within scope of the general order and
endorsement and that “[s]ince both the general order and the endorsement were
incorporated into the insurance policy, the … policy covered [the insured’s] pickup truck.”
(Id. at p. 235, italics added.)
Samson bears little similarity to the case before us. Here, the Infinity policy was not
issued for the purpose of complying with the MCPPA and contained no endorsement
incorporating MCPPA provisions. Moreover, the Samson court did not reform the insured’s
policy to provide broader coverage than it actually provided. Rather, the court determined
the policy, as written, actually covered all vehicles used in connection with the services
performed by the carrier.
Plaintiffs point to language in Samson which they contend illustrates that the MCPPA
must be incorporated into the Infinity policy, namely: “Where insurance coverage is
required by law, the statutory provisions are incorporated into the insurance contract. ‘The
obligations of such a policy are measured and defined by the pertinent statute, and the two
together form the insurance contract .... [The] insurance carrier is done no injustice when its
rights are determined thereunder. [¶] Any provisions of such a policy which are in conflict
with the pertinent statutes are nullified and superseded to that extent, particularly where the
policy itself, expressly so provides.’ ” (Samson, supra, 30 Cal.3d at p. 231.) However, the
Infinity policy did not expressly incorporate, by way of certification, endorsement or
otherwise, the statutory provisions of the MCPPA.
Moreover, we reiterate the Infinity policy is not in conflict with the MCPPA with
regard to its policy limits because the MCPPA allows a motor carrier of property to meet its
financial responsibility requirements by stacking coverage provided by multiple insurance
policies. This means a policy that is intended to support a motor carrier of property’s
application for a motor permit may, nevertheless, be issued with lower coverage limits than
that required by the MCPPA, and the motor carrier may meet MCPPA requirements by
25.
obtaining additional policies of insurance. Thus, the Infinity policy provision which
provides that the policy will be conformed statutes in the event of a conflict between the two
has no application under the undisputed facts presented.
Plaintiffs also rely on Empire Fire & Marine Ins. Co. v. Bell (1997) 55 Cal.App.4th
1410 (Empire) to support the trial court’s decision to reform the policy limits of the Infinity
policy. Plaintiffs’ reliance on Empire is likewise misplaced.
In Empire, the insurance company issued a business automobile policy to an
ambulance company. (Empire, supra, 55 Cal.App.4th at p. 1413.) The county in which the
ambulance company operated had adopted an ordinance requiring ambulance services to
provide the county with proof of liability insurance and, in accordance therewith, the insurer
provided the county with a certificate of insurance as proof its insured met the ordinance’s
requirements. (Id. at pp. 1413, 1423.) The ordinance further required that the policy of
insurance must have a “provision requiring 15 days’ notice to the county prior to
cancellation or modification of the policy.” (Id. at pp. 1419–1420.) During the policy
period, the insurer issued an endorsement to the policy excluding the owner of the company
from coverage under the policy without providing DMV the required 15 days’ notice. (Id.
at pp. 1413–1414, 1423.) Two months later, the owner, while operating one of the
ambulances, caused an accident and injured a third party. (Id. at p. 1415.) The insurer then
brought a declaratory relief action to determine whether it had a duty to defend and
indemnify the owner. (Ibid.) The Empire court concluded the insurer was bound by the 15
days’ notice period and, having failed to provide such notice to the county that it had
excluded the owner from coverage, remained liable on the policy. (Id. at p. 1423.)
In summarizing its holding, the Empire court wrote, “when, as here, insurance
coverage is required by law as a condition to doing business, the provisions of the
compulsory insurance law are incorporated into the insurance contract so that an insurer
providing a certificate of insurance as proof that the regulated business entity has insurance
remains liable on its policy until the requisite notice has been given to the regulatory
26.
agency.” (Empire, supra, 55 Cal.App.4th at p. 1415, italics added.) In this regard, Empire
stands for the unremarkable proposition that, when an insurer certifies to a government
agency that it has issued a policy of insurance which complies with an ordinance (or other
law), the insurer will be held to provisions of the ordinance (or other law). Empire does not
aid plaintiffs because, here, Infinity issued no similar certification to comply with the
MCPPA.
Tab is also unavailing. In Tab, the insurer, Transamerica Insurance Company
(Transamerica), had issued a policy to a “commercial trucking company regulated by the
PUC under the Highway Carriers’ Act” (Pub. Util. Code, former § 3501 et seq.), the
MCPPA’s predecessor statutes. (Tab, supra, 12 Cal.4th at p. 395.) Transamerica filed a
certificate of insurance with the PUC to demonstrate the insured’s compliance with the Act
and attached the required PUC endorsement to its policy of insurance confirming the policy
had been amended to comply with the PUC regulations including General Order No. 100-
Series. (Ibid.) The certificate stated, “the policy was ‘Effective 2-1-80 Until Canceled’ ”
(Ibid.) Under the Act, an insurer could cancel a highway carrier insurance policy only upon
30 days’ written notice to the PUC (Pub. Util. Code, former § 3634) and this provision was
likewise contained in General Order No. 100-Series (Tab, at p. 400).
In 1981, the Tab insured replaced its Transamerica policy with policies issued by
other companies but neither party notified the PUC that the Transamerica policy was
canceled. (Tab, supra, 2 Cal.4th at p. 395.) Eight years later, when the insured was
involved in an accident resulting in the death of several third parties, the insured demanded
coverage under both its replacement policies as well as the Transamerica policy. (Ibid.)
Transamerica filed for declaratory relief seeking a determination it was not liable on its
policy. (Id. at p. 396.) The California Supreme Court held that “because the Transamerica
policy was amended by the PUC’s standard form endorsement to remain ‘in full force and
effect until canceled,’ it could never lapse by reason of expiration of the policy term” and
coverage remained in effect until canceled in the manner required by the PUC regulations.
27.
(Id. at p. 401, italics omitted.) Thus, the Court ruled coverage was still in effect.15 (Id. at
pp. 396, 404.)
In each of the cases discussed above, i.e., Samson, Empire, and Tab, liability was
premised on the fact that each of the insurers had actually certified their policies as
compliant with the applicable regulatory schemes and/or had amended their policies with
endorsements that ensured such compliance. Here, Infinity did neither.
The parties have not cited to any cases in which a policy has been reformed to meet
MCPPA coverage requirements (or that of its predecessor statutes, i.e., the Highway
Carriers’ Act) absent the insurer providing the applicable certification of insurance and/or
policy endorsement and absent facts suggesting the insured had justifiable expectations of
greater coverage. Moreover, we have found none.
15 The parties, through their counsel of record, notified this court of the existence of
new authority—Allied Premier Ins. v. United Financial Casualty Co. (July 24, 2023,
S267746) __ Cal.5th __ [2023 WL 4696261] (Allied)—not available to them at the time of
briefing.
In Allied, the California Supreme Court considered the following question certified
for its review by the United States Court of Appeals for the Ninth Circuit: “Under [the
MCPPA], does a commercial automobile insurance policy continue in full force and effect
until the insurer cancels the corresponding Certificate of Insurance on file with the [DMV],
regardless of the insurance policy’s stated expiration date?” (Allied, supra, __ Cal.5th __ [p.
1][2023 WL 4696261]) In response, the Allied court wrote: “The answer is no. The terms
of an insurance contract generally determine the duration of the policy’s coverage.
Although an endorsement can amend the policy, neither the [MCPPA] nor the specific
endorsement it requires extend coverage beyond the underlying policy’s expiration date.”
(Ibid.)
In answering the certified question, the Allied court noted a different result under
similar circumstances obtained in Tab under the Highway Carriers’ Act (Pub. Util. Code,
former § 3501 et seq.) but stated the statutory language they relied on in Tab was not carried
over when that statutory scheme was replaced by the MCPPA. (Allied, supra, __ Cal.5th __
[p. 1] [2023 WL 4696261].) Although the same or similar policy considerations are
undoubtedly reflected in the two different statutory schemes, Allied confirms that the
statutory language matters.
Our opinion in this matter is not affected by the Allied decision. Nothing in that
decision is contrary to the holding herein.
28.
VI. PUBLIC POLICY ARGUMENTS DO NOT WARRANT REFORMATION OF
THE INFINITY POLICY
Infinity argues “a rule amending an insurance policy after the fact to include required
limits would create perverse incentives for motor carriers to purchase lower limits of
liability, knowing that their policies would be deemed to provide higher limits if they were
ever in an accident.” Plaintiffs contend allowing an insurer to write a policy of insurance to
a “known” motor carrier of property for less than the required policy limits under section
34631.5 endangers the public and subverts the MCPPA.
Both policy considerations may be worthy of consideration. However, “[t]he
judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate
the wisdom of the policies embodied in such legislation; absent a constitutional prohibition,
the choice among competing policy considerations in enacting laws is a legislative
function.” (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53.) Here, the
plain language of the MCPPA and DMV regulations do not impose duties on an insurer to
provide coverage in the full amount of the minimum policy limits set under section 34631.5
where the insurer does not certify such coverage to the DMV and does not include an
endorsement to the insurance policy indicating compliance with MCPPA provisions.
VII. PLAINTIFFS’ AFFIRMATIVE DEFENSES TO THE WRIT PETITION ARE
FORFEITED AND/OR WITHOUT MERIT
Plaintiffs have alleged several affirmative defenses to the writ petition, namely the
equitable doctrine of laches, the equitable doctrine of waiver, and the equitable doctrine of
exhaustion. As for the first two of these defenses, plaintiffs have not provided any legal
authority relevant to these doctrines. Consequently, we deem the affirmative defenses
forfeited. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)
As for plaintiffs’ last affirmative defense of the equitable doctrine of exhaustion,
plaintiffs have provided a single citation to Mitchell v. Superior Court, supra, 37 Cal.3d
268, without any pinpoint page citation, or discussion of the case and its holding. Plaintiffs
contend Infinity has “vastly overstate[d] the scope of the [trial] court’s decision” by
29.
contending the subject ruling “amend[s] every policy issued to a motor carrier to include the
MCPPA’s $750,000 limit” and that Infinity is to blame for the scope of the ruling because it
framed the issue for the court’s consideration. In its reply, Infinity states it did not file the
petition because it considered the subject ruling “overly broad.” Rather, it is challenging the
legal correctness of the court’s ruling. We agree with Infinity and conclude the defense is
without merit.
VIII. THE PROPER RESOLUTION OF ISSUES PRESENTED TO THE TRIAL COURT
IN FIRST PHASE OF TRIAL
In light of the discussion above, we conclude the trial court erred by reforming the
contract to provide coverage in the amount of $750,000. The stated policy limits in the
Infinity policy are not subject to reformation.
DISPOSITION
The petition is granted. A peremptory writ of mandate shall issue directing
respondent court to vacate its “RULINGS AFTER COURT TRIAL” (i.e., the subject ruling)
entered on August 3, 2022. On remand, respondent court shall enter a new ruling consistent
with the views expressed herein and declaring the Infinity policy limit is $50,000.
Petitioners Infinity Select Insurance Company and Infinity Property and Casualty
Corporation are entitled to their costs under California Rules of Court, rule 8.493(a)(1)(A).
FRANSON, J.
WE CONCUR:
LEVY, Acting P. J.
SMITH, J.
30.