Kupfer v. Mid-Century Ins. Co. CA1/5

Filed 4/8/13 Kupfer v. Mid-Century Ins. Co. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FIVE

KONSTANTIN KUPFER, Plaintiff and Appellant, A134732 v. MID-CENTURY INSURANCE (San Francisco City and County COMPANY, Super. Ct. No. CGC-10-503068) Defendant and Respondent.

The trial court granted defendant Mid-Century Insurance Company‟s (respondent) motion for summary judgment in this action brought by plaintiff Konstantin Kupfer (appellant) asserting causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. We affirm. BACKGROUND1 In December 2008, appellant submitted a claim to respondent for the theft of his 2006 Bentley (Vehicle). Although the Vehicle was recovered, it had suffered substantial damage and was determined to be a total loss. Appellant‟s insurance policy defined “replacement cost” as the cost to purchase the insured‟s vehicle or an equivalent on the local market.

1 In this appeal from the trial court‟s order granting respondent‟s motion for summary judgment, we view the evidence in the light most favorable to appellant. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Our factual summary reflects this standard of review. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1056, fn. 1.)

1

Upon receiving notice of the claim, respondent obtained estimates of the value of the Vehicle by requesting Bid Enterprises to prepare an appraisal (Appraisal), and by obtaining a “CCC Valuation Market Report” (Report). It appears the Report was generated based on information about the Vehicle provided by respondent and a posttheft inspection of the Vehicle by Bid Enterprises; the estimated value of the Vehicle was $137,125. The Appraisal was based on information provided by respondent; the estimated value of the Vehicle was $139,981. Both the Report and Appraisal purported to base their value estimates on comparisons to sales of comparable vehicles. In February 2009, based on the Report and Appraisal, respondent sent appellant a check for $136,125, which reflected appellant‟s $1,000 deductible. Along with the check, respondent sent a letter demanding an appraisal of appellant‟s loss pursuant to an appraisal provision in the insurance policy. That provision states, “You or we may demand appraisal of the loss. Each will appoint and pay a competent and disinterested appraiser and will notify the other of the appraiser‟s identity within 20 calendar days of the receipt of the written request. Each will equally share other appraisal expenses. The appraisers, or a judge of a court having jurisdiction will select an umpire to decide any differences. Each appraiser will state separately the actual cash value and the amount of loss. An award in writing by any two appraisers will determine the amount payable, which shall be binding, subject to the terms of this insurance.” Respondent‟s letter to appellant stated, “We have selected Bid Enterprises as our appraiser. Please call our office with the name, address and phone number of your appraiser. We will advise our appraiser and request they meet to resolve the matter.” The letter stated a final payment to appellant would be made “based on the outcome of the appraisal process.” The parties had disagreements regarding the appraisal process. In April 2009, appellant objected to the selection of Dave Adams of Bid Enterprises as respondent‟s appraiser; appellant took the position that Adams was not disinterested because he had prepared the original Appraisal and could be called as a witness at the appraisal hearing. The parties also disagreed on the selection of an umpire for the appraisal panel. The parties agreed to file a petition with the San Mateo Superior Court requesting