Lopez v. Allstate Ins. Co. CA5

Filed 2/3/14 Lopez v. Allstate Ins. Co. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MILTON LOPEZ et al., F065514 Plaintiffs, Cross-defendants and Appellants, (Super. Ct. No. 10CECG01035)

v. OPINION ALLSTATE INSURANCE COMPANY,

Defendant, Cross-complainant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Judge. Lang, Richert & Patch, William T. McLaughlin II and Ashley N. Emerzian for Plaintiffs, Cross-defendants and Appellants. MacGregor & Berthel, Gregory Michael MacGregor, Deborah A. Berthel and Joshua N. Willis for Defendant, Cross-complainant and Appellant. -ooOoo-

Plaintiff Milton Lopez, purchased insurance from defendant Allstate Insurance Company (Allstate), for his rental property, a single family residence on West Robinson Avenue in Fresno (the house). In the insurance applications, Lopez represented that the house was 1,600 square feet with eight rooms, that it contained “1” “Apts./Family Units,” and that the “[t]otal number of residents in household including children” was “1.” However, the house was in fact over 3,000 square feet, contained eight bedrooms and five bathrooms, and six of the bedrooms were rented to individual tenants. After the house was destroyed by a fire, Allstate denied Lopez’s claim. Lopez and his ex-wife, plaintiff Anamaria Cornejo, filed the underlying complaint against Allstate alleging breach of contract. Thereafter, Allstate rescinded the policy due to misrepresentations made by Lopez during the application process. Allstate further argued there was no coverage in any event because the policy limited coverage to a “one-, two-, three- or four-family building structure” and this property contained more than four rental units. Along with its answer, Allstate filed a cross-complaint against plaintiffs for rescission. The jury returned a verdict in favor of Allstate. The jury found that Lopez made material misrepresentations in applying for the policy and therefore the policy was void from its inception. The trial court had previously granted summary judgment in favor of Allstate as to Cornejo’s claims because Cornejo was not a named insured on the policy. Plaintiffs contend the trial court erred when it failed to interpret the unambiguous insurance policy and instead gave the coverage question to the jury. Plaintiffs further argue that their loss was covered because rented bedrooms are not “dwellings” as defined in the policy. Additionally, Cornejo asserts that the court erred in summarily adjudicating her claim against Allstate because, while her name does not appear on the policy, there is a triable issue of material fact as to whether she can sue based on the conduct of Allstate’s agent.