United Services Automobile Assn. v. Martin

Opinion

ASHBY, J.

Plaintiff United Services Automobile Association appeals from an order of dismissal following the sustaining of a demurrer, without leave to amend, to plaintiff’s first amended complaint for declaratory relief.

According to the allegations of the first amended complaint: Plaintiff is an automobile liability insurer who issued a policy to Ivanhoe Jackson whereby plaintiff agreed to defend and indemnify Jackson for liability arising out of the use of a certain automobile. On March 18, 1978, Jackson was involved in an automobile accident in which defendants George A. Martin, Sr., Mercedes Martin, George A. Martin, Jr., and Janice Martin claim to have suffered injuries as a result of Jackson’s negligence. Defendants Martin instituted an action for personal injuries against Jackson, Los Angeles Superior Court case No. SOC 51563, which is presently pending. Plaintiff is defending such action on behalf of Jackson.

In the present action for declaratory relief, plaintiff contends there is an actual controversy between plaintiff and defendants in that defen

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dants claim to be third party beneficiaries to the insurance contract and plaintiff contends that plaintiff has no obligations under the contract. The basis for plaintiff’s claim of nonliability is that the insured, Jackson, has breached the cooperation clause of the policy.

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Jackson “has refused to assist in the defense of said action, has refused to consult with counsel, has refused to answer interrogatories, give deposition testimony, or testify at the trial, thereby making it impossible for plaintiff to properly defend defendant Jackson in said action, ...” Plaintiff seeks a declaration that it has no duty to defend or indemnify Jackson, nor any liability to defendants as third-party beneficiaries to the insurance contract.

The trial court sustained the general demurrer to the first amended complaint, and dismissed the action.

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Discussion