Carter v. Superior Court

Opinion

POCHÉ, Acting P. J.

Petitioner Marcia Carter seeks a writ of mandate requiring respondent court to overrule a demurrer to two causes of action in her complaint against her insurance carrier.

A first amended complaint for damages was filed by petitioner alleging in relevant part as follows: Petitioner has a “Homeowners Policy” with J.C. Penney Casualty Insurance Company covering her property at 515 Hillside Road, Redwood City. On or about January 5, 1982, her property was damaged as a result of a “landslide/land subsidence” on neighboring property. Although the policy required that she notify her carrier of a loss within a year of its occurrence, she was misled by the silence of defendants and the exclusionary language of the policy which, while it excluded from coverage damage caused by earth movement, covered losses due to third party negligence. Petitioner reported the loss to her carrier on August 5, 1983. At no time did defendants deny the claim but sought to create the appearance that they were willing to amicably adjust and settle the claim although petitioner now realizes that the appearance was false and that defendants had no intention of paying the full amount of the losses. Following notification of the loss, defendants engaged engineers to render an opinion as to the cause of the loss. The opinion “established” that negligence of the neighboring landowner and others caused in substantial part the damage to petitioner’s property. The report was withheld from petitioner until on or about January 16, 1985. In order to protect her rights and those of defendants with respect to third parties, petitioner filed an action against the negligent third parties which action is presently pending. It is essential that petitioner be allowed to maintain the action against her insurer simultaneously with the action against the third party tortfeasors in order to prevent either action from being barred by the applicable statute of limitations.

Based on these allegations, the complaint (as relevant to this petition) set forth a first cause of action for breach of contract, a second cause of action for breach of the covenant of good faith and fair dealing and a fourth cause of action for violation of Insurance Code section 790.03.

1

[427]

In a demurrer to the amended complaint, J.C. Penney Casualty Insurance Company, real party herein, argued that the first cause of action was barred by the one-year private limitations period in the contract. As to the second and fourth causes of action, real party contended that the causes of action were premature because there had not been a final conclusion of petitioner’s action against the third party tortfeasors. The matter was heard on March 16, 1987, at which time the court overruled the demurrer to the first cause of action and sustained without leave to amend the demurrers to the second and fourth causes of action.