Davis v. Allstate Insurance

Opinion

AGLIANO, P. J.—

Plaintiff Alfred J. Davis appeals from the superior court’s order quashing service and the ensuing judgment dismissing plaintiff’s action against defendant Allstate for failure to serve summons and

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complaint within three years of the commencement of the action. (Code Civ. Proc.,

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§ 583.210.) We will reverse the order and judgment for the reasons stated below.

Background

Numerous property owners including plaintiff Davis filed suit on February 28, 1985, against nine insurance companies for losses arising out of the March 1983 flooding in Alviso in Santa Clara County. Plaintiff Davis alleged his residence was insured by defendant Allstate. Before any answer or demurrer all plaintiffs filed a first amended complaint on March 6, 1985. They filed a second amended complaint on March 12, 1985. The second amended complaint contained causes of action for breach of the duty of good faith and fair dealing, breach of fiduciary duty, breach of statutory duties (Ins. Code, § 790.03, subd. (h)), and breach of contract. On June 29, 1987, one of the defendants, Progressive Casualty Company, demurred to the second amended complaint, asserting as to plaintiffs Ciampi, its alleged insureds, that the complaint did not state a cause of action. The trial court sustained Progressive’s demurrer, without leave to amend as to the breach of fiduciary duty cause of action, and with leave to amend as to the remaining causes of action. Plaintiffs, including Davis, filed a third amended complaint against all defendants on August 13, 1987.

On February 24, 1988, several days before the three-year limitation period for service of summons and complaint was to expire, Davis effected service on his alleged insurer Allstate, however inadvertently delivering it a copy of the superseded second rather than the third amended complaint. Allstate moved to quash service of summons and complaint and to dismiss the action, urging that Davis had failed to serve Allstate with the operative third amended complaint within three years of the commencement of the action as required by section 583.210. On discovering his error, Davis served Allstate with a copy of the third amended complaint around April 6, 1988 (after the three-year period had run). The trial court granted the motion to dismiss, reasoning that under section 583.250