Calvert Fire Insurance v. Cropper

Opinion

BREINER, J.

*

Plaintiff appeals from two judgments dismissing its complaint, as sanctions for its wilful failure to obey a discovery order (Code Civ. Proc., § 2034). We affirm.

Appellant insurer issued a policy of aircraft liability insurance to Hoehnle through its local agent, Cropper. During the policy period, Hoehnle’s airplane crashed, resulting in the death of Lange and a subsequent wrongful death action filed by Lange’s heirs (hereafter, Lange) against the insured.

Calvert filed the instant action seeking declaratory relief, reformation, and indemnity, contending that the coverage was limited to $100,000 per person, and in the alternative, that Cropper’s negligence requires him to indemnify plaintiff. Respondents (Cropper and Lange) contended that the coverage was $1 million per person; the wrongful death action was settled by means of a stipulated judgment against Hoehnle for $275,000, a covenant not to execute against the insured’s personal assets, and an assignment to Lange of any rights he may have against appellant.

In April 1979, defendant Cropper served appellant with interrogatories (Code Civ. Proc., § 2030) and a request for production of documents (Code Civ. Proc., § 2031), seeking to determine the identity of witnesses and the nature of appellant’s contentions.

At appellant’s request, Cropper granted it four extensions of time to respond to the discovery requests, totalling seventy-one days. Twenty days after the end of the extension period, Cropper filed a motion to compel (Code Civ. Proc., § 2034, subd. (a)), noticing the motion for a date twenty-seven days later. By stipulation, appellant obtained an order granting it an additional twenty days to answer the requests; by virtue of that order, appellant was required to comply by November 4, 1979, a date more than six months from the service of the discovery requests.

[904]

On January 3, 1980, after waiting almost two more months, Cropper filed a motion to dismiss the complaint for failure to comply with the order (Code Civ. Proc., § 2034, subds. (b) and (d)). On the date of the hearing, appellant still had not complied, but rather filed written opposition in which its attorney admitted the default and his inability to explain why appellant had not cooperated with its attorney in providing the discovery that had been requested and ordered. Prior to the hearing, Lange, who had not initiated the discovery, joined in Cropper’s motion. The motion to dismiss the complaint was granted as to both respondents.