Kuperman v. Great Republic Life Insurance

California Court of Appeal Oct 27, 1987 No. B024436Published

Before: Danielson

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Holding. The court held that a plaintiff's omission of a previously named defendant in an amended complaint constitutes a dismissal without prejudice, allowing the plaintiff to subsequently reinstate that defendant in a later amended complaint.

Issues

Whether an order striking an amended complaint is an appealable final judgment.
Whether the omission of a defendant in an amended complaint bars the plaintiff from naming that defendant in a subsequent amended complaint.

Disposition. reversed

Quotations verified verbatim against the opinion

“The order was appealable as a final judgment within the meaning of Code of Civil Procedure section 904.1.”

“We hold that the dismissal effected by plaintiffs when they failed to name Great Republic as a defendant in their second amended complaint was without prejudice”

[945]

Opinion

DANIELSON, J.

Plaintiffs and appellants Edward Kuperman, Diana Kuperman, and Nataly Kuperman, a minor, by and through her guardian ad litem, Edward Kuperman, appeal from an order of the superior court striking plaintiffs’ third amended complaint in its entirety as to defendant and respondent Great Republic Life Insurance Company (Great Republic). The primary issue presented by this appeal is whether plaintiffs, who named Great Republic as a defendant in their complaint and first amended complaint, but eliminated all reference to Great Republic in their second amended complaint, were thereafter barred from further amending their complaint to state causes of action against Great Republic. We determine that they were not, and reverse the order.

Procedural History

On June 1, 1984, Edward and Diane Kuperman filed a complaint against Great Republic, Imperial Administrative Services, The Insurance Emporium of America, Connie Zarkosky and Gregory Vainstok, alleging breach of contract, bad faith, fraud, intentional and negligent infliction of emotional distress, unfair practices (Ins. Code, § 790.03, subds. (h) (l)-(3) (5)-(7), (13)), and negligence,

based on Great Republic’s alleged failure to pay certain medical expenses pursuant to a group medical insurance policy.

In their first amended complaint against the same defendants, filed October 29, 1984, plaintiffs alleged essentially the same causes of action, omitting that for negligence.

On or after November 8, 1984, plaintiffs filed a second amended complaint, adding Nataly Kuperman, a minor, by and through her guardian ad litem, Edward Kuperman, as a plaintiff, and naming Commercial Banker’s Life Insurance Company and Imperial Administrative Services as defendants. The second amended complaint essentially reiterated the causes of action set forth in the first amended complaint, but eliminated all reference to the other previously named defendants, including Great Republic.

Defendants Commercial Banker’s Life and Imperial Administrative Services answered the second amended complaint and cross-complained against Great Republic, The Insurance Emporium, Zarkosky and Vainstok for declaratory relief and equitable indemnification, alleging, inter alia, that

Kuperman v. Great Republic Life Insurance

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DANIELSON, J.

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