Jackson v. Andco Farms, Inc.

Opinion

EVANS, J.

Defendant’s demurrer to plaintiff’s complaint for personal injury was sustained without leave to amend. Plaintiff appeals from the ensuing judgment (order) of dismissal.

The principal issue presented by this appeal is whether the provisions of Insurance Code section 11583

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should preclude defendant from asserting the one-year statute of limitations (Code Civ. Proc., § 340, subd. 3) as a bar to plaintiff’s personal injury action. We conclude it does not.

The chronology of events pertinent to our decision is as follows: On May 5, 1978, while operating a Honda motorcycle on Interstate 5 in Colusa County, plaintiff suffered personal injury, and his motorcycle was damaged beyond repair. The first complaint seeking damages for his injuries was filed October 29, 1979, more than one year after the occurrence. Plaintiff, a resident of the State of Washington, retained a Washington attorney to represent him. A correspondence dialogue commenced March 21, 1979, between the attorney and defendant’s insurance carrier, Mission Insurance Company (Mission). At that time Mission offered to settle the motorcycle loss for a total of $923; the offer

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included a procedure for disposition of the salvage rights and payment of storage and towing charges. Mission also requested that an itemization of plaintiff’s medical expenses be submitted for evaluation so possible negotiation of his personal injury could be undertaken. On April 10, 1979, plaintiff’s attorney responded, asserting the value of the motorcycle to be approximately $1,800 but agreeing that the procedure outlined for settlement of matters relating to disposition of the motorcycle was acceptable. The next ensuing correspondence was a letter dated May 10, 1979, five days after the expiration of the one-year statute of limitations, in which plaintiff’s attorney forwarded a summary of the medical special damages incurred by plaintiff and accepted the $923 settlement previously offered for the property damage claim. The correspondence also contained a $35,000 demand for general damages resulting from plaintiff’s injuries. On May 25, 1979, Mission forwarded a draft for $923 settlement of the property damage claim and advised plaintiff’s counsel that settlement of the injury complaint could not be accomplished without receipt of a copy of a filed complaint. Further correspondence was exchanged culminating with a letter on September 26, 1979, in which Mission advised the attorney of the one-year statute of limitations, and that a copy of the filed complaint would be required before any settlement negotiations could be undertaken.