Aguilar v. Gostischef

Filed 10/11/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ED AGUILAR, B238853

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. EC 039462) v.

LARRY GOSTISCHEF,

Defendant,

FARMERS INSURANCE EXCHANGE,

Intervener and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William D. Stewart and Ricardo A. Torres, Judges. Affirmed.

Mendes & Mount, Dean B. Herman, Catherine L. Rivard and Stuart L. Brody for Intervener and Appellant.

The Yarnall Firm, Delores A. Yarnall; Ammirato & Palumbo, Bruce Palumbo; Moray & Vallette and Diane Vallette for Plaintiff and Respondent.

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This personal injury lawsuit following a motor vehicle accident has spawned years of litigation. In the first appeal, we reversed the entry of a judgment notwithstanding the verdict and ordered the trial court to reinstate the $2.3 million verdict in favor of respondent Ed Aguilar. The trial court reinstated the verdict and then ordered appellant Farmers Insurance Exchange (Farmers) to pay Aguilar‟s costs. The costs were substantial because Aguilar had made an offer pursuant to Code of Civil Procedure section 998 (section 998), which Farmers had rejected. In this appeal, Farmers cites no case suggesting it was improper for the trial court to consider whether an insurer may be liable for an excess judgment when evaluating whether a section 998 offer was reasonable, and we decline to be the first court to so hold. We affirm the cost award. FACTS AND PROCEDURE On January 3, 2004, Aguilar and Larry Gostischef were involved in a motor vehicle accident. At the time of the accident, Gostischef was insured by Farmers with a policy containing a $100,000 limit for each person. Aguilar was injured badly, and the parties agree that costs amounting to $507,718 were reasonable and necessary for past medical expenses. (Aguilar v. Gostischef (May 2, 2011, B217824) [nonpub. opn.] (Aguilar I).) On February 4, 2004, Aguilar‟s counsel wrote Farmers requesting discovery of the policy limit. Farmers did not respond. On March 12, 2004, Aguilar‟s counsel again wrote Farmers, requesting discovery of the policy limit. Farmers did not respond. On April 9, 2004, Aguilar‟s counsel wrote Farmers as follows: “My client has asked to know the policy limits so that he can make a policy limits demand and resolve this case and move on with his life. Unfortunately, until and unless we are advised of the limits in coverage, we are not able to make a policy limits demand. He is, however, prepared to do so upon being advised of the limits. [¶] Once again, we entreat you to get permission from your insured to disclose the policy limits, provide them to us in the form of a certified policy and declaration, so that we can then immediately demand policy limits. Please favor us with a reply within the next two weeks.” Farmers did not respond.