Komorsky v. Farmers Ins. Exch.

33 Cal.App.5th 960

245 Cal.Rptr.3d 623

Melissa KOMORSKY, Plaintiff and Appellant,

v.FARMERS INSURANCE EXCHANGE et al., Defendants and Respondents.

B286443

Court of Appeal, Second District, Division 4, California.

Filed March 1, 2019

David Hoffman ; Law Offices of Laurence Posner and Laurence Posner for Plaintiff and Appellant.

Haight Brown & Bonesteel, Denis J. Moriarty and Christopher Kendrick, Los Angeles, for Defendants and Respondents.

CURREY, J.

Melissa Komorsky appeals from a judgment in favor of Farmers Insurance Exchange (Farmers) and Truck Insurance Exchange (Truck). Komorsky’s mother, Linda Liker, was insured under an automobile liability policy issued by Farmers and an umbrella policy issued by Truck. Both policies included uninsured motorist coverage. After an uninsured motorist struck and killed Ms. Liker, Komorsky filed claims for benefits under both policies for her mother’s wrongful death. The trial court determined Komorsky was entitled to coverage under the Farmers policy as an heir of an insured pursuant to Insurance Code section 11580.2, subdivision (a)(1)¹ , but was not entitled to coverage under the Truck umbrella policy. The court later granted the defendants’ motion for judgment on the pleadings based on its coverage determination.

On appeal, Komorsky contends (1) she is entitled to uninsured motorist coverage under the Truck umbrella policy as an heir of an insured pursuant to section 11580.2, subdivision (a)(1) ; (2) the trial court erred in denying her motion for leave to file a second amended complaint alleging causes of action for estoppel and reformation; and (3) Farmers Group, Inc. is a proper defendant based on its control of Farmers and Truck.

We conclude the trial court ruled properly on each of these issues and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Insurance Policies and Claims

Alan and Linda Liker, husband and wife, were named insureds under an automobile liability insurance policy issued by Farmers. The Farmers policy provided uninsured or underinsured motorist coverage of up $ 250,000 per person. Alan Liker was also the named insured under an umbrella insurance policy issued by Truck that provided up to $ 1 million in coverage.

The uninsured motorist coverage provision in the Farmers policy stated that Farmers would "pay all sums which an insured person or such other person as permitted under the law is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury ... including the wrongful death of an insured person ." (Emphasis in original.)² As relevant here, the Farmers policy defined "insured person" as including "You or a family member " and "Any person for damages that person is entitled to recover because of bodily injury to you, a family member , or another occupant of your insured car ." (Emphasis in original.) The policy defined "you" as the named insured shown in the declarations (Alan Liker and Linda Liker) and any spouse living in the same household. It defined "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household." It also contained a provision requiring arbitration in the event of a dispute concerning uninsured motorist coverage.

The Truck umbrella policy included an endorsement adding uninsured and underinsured motorist coverage. The endorsement stated the coverage was "payable to you and any other insured under this policy, to the extent that either or both coverages are a part of the underlying insurance ." (Emphasis in original.) The schedule of underlying insurance included the Farmers policy. The Truck policy defined "you" as the named insured shown in the declarations (Alan Liker) and his or her spouse living in the same household (Linda Liker), and as relevant here defined "insured" as "you" and any relatives (as defined) living in "your" household.

Linda Liker was killed by an uninsured motorist in October 2014. Alan Liker made a claim for uninsured motorist benefits under both the Farmers and Truck policies and demanded arbitration against the insurers.

Komorsky, Linda Liker’s daughter from a prior marriage, also made a claim for uninsured motorist benefits under both policies. Komorsky did not reside in the Likers’ household.

2. The Complaint

On January 25, 2016, Komorsky filed a complaint against Farmers Group, Inc., Farmers, Truck and Alan Liker. Komorsky alleged causes of action for (1) declaratory relief regarding the parties’ rights to uninsured motorist benefits under the two policies, against all defendants; (2) negligent interference with prospective economic advantage, against all defendants; (3) intentional interference with prospective economic advantage, against Alan Liker; and (4) a permanent injunction, against Alan Liker.

On January 29, 2016, Alan Liker filed a petition to compel arbitration based on the arbitration provision in the Farmers policy and section 11580.2, subdivision (f). Alan Liker died on February 5, 2016. The trial court ordered the substitution of his personal representative, Harley Liker, for Alan Liker.

On February 10, 2016, Komorsky filed a first amended complaint alleging the same four causes of action and adding a fifth cause of action for breach of contract against Farmers and Truck, and a sixth cause of action for breach of the implied covenant of good faith and fair dealing against the same defendants.

3. The Trial Court’s Ruling on the Coverage Issue

The trial court determined that an arbitration should proceed only after the court determined whether Komorsky was covered under the policies. On March 18, 2016, the court filed an order setting a briefing schedule and a hearing on the coverage issue to take place on June 10, 2016. The court permitted Komorsky’s sister, Sherri Fogelman, to intervene in the action.³ The court granted the petition to compel arbitration, with the arbitration to proceed after the coverage determination.

On May 18, 2016, Farmers filed a complaint in interpleader against Komorsky, Fogelman, and Harley Liker. Farmers alleged the defendants had competing claims to uninsured motorist benefits under the Farmers policy and sought to interplead the $ 250,000 policy limits and allow the court to resolve the competing claims.

Farmers acknowledged that Alan Liker and Komorsky were entitled to uninsured motorist coverage under the Farmers policy based on section 11580.2, subdivision (a)(1). Truck also asserted that Alan Liker and Komorsky were entitled to uninsured motorist coverage under the Truck umbrella policy. In support of that position, Farmers and Truck cited a Texas opinion interpreting what they characterized as the same uninsured motorist endorsement language employed in this case.⁴ Because the Texas court used language indicating the umbrella’s uninsured motorist endorsement "followed form" to the underlying policy, Truck concluded the endorsement in this case also followed form. Truck took the position that its endorsement therefore provided the same scope of uninsured motorist coverage as the Farmers policy. Conflating scope of coverage with the identity of the persons insured by the respective policies, Truck conceded its policy therefore would provide uninsured motorist coverage for Komorsky. Alan Liker disputed Komorsky’s right to coverage under the Truck endorsement, however.

The trial court filed a tentative ruling on the coverage issue prior to the June 10, 2016 hearing. The court tentatively found Komorsky and Fogelman were entitled to uninsured motorist coverage under both the Farmers and Truck policies. The tentative ruling stated the Farmers policy provided uninsured motorist coverage to Komorsky and Fogelman as a matter of law pursuant to section 11580.2, subdivision (a)(1). The court tentatively concluded the statute did not apply to the Truck policy because it was an umbrella policy. However, examining the language of Truck’s uninsured motorist endorsement, the court tentatively concluded the endorsement incorporated the terms of the Farmers policy, or "followed form," and therefore provided uninsured motorist coverage to Komorsky and Fogelman just as the Farmers policy did.

On June 28, 2016, the trial court filed a final order finding Komorsky and Fogelman were entitled to uninsured motorist coverage under the Farmers policy, but not under the Truck umbrella policy. The court found section 11580.2, subdivision (a)(1) did not apply to the Truck policy because it was an umbrella policy. Having reexamined the policy language, the court concluded Truck’s uninsured motorist endorsement did not provide coverage to Komorsky and Fogelman because they were not insureds under the umbrella policy. As noted above, the Truck policy defined "insured" as the named insured (Alan Liker), his spouse living in the same household (Linda Liker), and relatives (as defined) living in the same household. Neither Komorsky nor Fogelman lived with the Likers.

Komorsky challenged the trial court’s ruling by filing a petition for writ of mandate in this court (B276326). We summarily denied the petition. Komorsky also filed a notice of appeal from the June 28, 2016 order (B277191). We granted Harley Liker’s motion to dismiss the appeal.

4. The Motion for Leave to File a Seconded Amended Complaint

On January 23, 2017, Komorsky filed a motion for leave to file a second amended complaint. She sought to add causes of action for estoppel and reformation against Truck and Farmers Group, Inc. Komorsky sought to estop the insurance carriers from denying her (and Fogelman) uninsured motorist coverage under the Truck policy and to reform the policy to expressly provide that Komorsky and Fogelman were insureds. The trial court concluded as a matter of law Komorsky was not entitled to relief on the proposed new causes of action, and denied the motion on March 21, 2017.

5. The Motion for Judgment on the Pleadings

Despite having earlier taken the position that Komorsky and her sister were both...