Opinion
NOT TO BE PUBLISHED
APPEAL from the judgments of the Superior Court of Los Angeles County No. BC362847, Teresa Sanchez-Gordon, Judge.
Stuart Law Firm, Antony Stuart; Kiesel Boucher Larson, Glenn Anaiscourt; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Andre J. Cronthall, Fred R. Puglisi and Catherine La Tempa for Defendant and Respondent Mid-West National Life Insurance Company of Tennessee.
Dykema Gossett and John L. Viola for Defendant and Respondent Alliance for Affordable Services.
Brown, White & Newhouse, Thomas M. Brown, George P. Schiavelli and Kenneth P. White for Defendant and Respondent Stephen Casey.
KRIEGLER, J.
Plaintiff and appellant Howard Woffinden, individually and as successor in interest to Mary Charlotte Woffinden, appeals from judgments of dismissal following orders granting summary judgment in favor of defendants and respondents Mid-West National Life Insurance Company of Tennessee and Alliance for Affordable Services, and a judgment of dismissal following an order granting judgment on the pleadings in favor of defendant and respondent insurance agent Stephen Casey in this action concerning misrepresentations about the nature and scope of health insurance coverage purchased by the Woffindens. The trial court granted the motions for summary judgment and judgment on the pleadings based on the court’s interpretation of the claim release provisions of a federal class action settlement. On appeal, Howard contends: 1) the Texas federal court previously ruled that the release provisions do not apply to his claims; 2) his claims are excluded from the released claims by the plain language of the settlement; and 3) there are triable issues of fact as to all of the causes of action alleged in the complaint.
Because the Woffindens share the same last name, they are referred to individually by their first names for purposes of clarity.
We conclude that Howard’s claims were not released in the class settlement. Summary adjudication of the cause of action for intentional infliction of emotional distress must be granted, but Mid-West and Alliance failed to shift the burden of proof or triable issues of fact exist as to other causes of action alleged in the complaint. Therefore, we reverse with directions.
Howard’s request for judicial notice of statements on the Internet concerning HealthMarkets is denied, because the statements were not before the trial court and are not relevant to the issues in this case. (The Zumbrun Law Firm v. California Legislature (2008) 165 Cal.App.4th 1603, 1623.)
FACTS AND PROCEDURAL BACKGROUND
General Allegations of the Operative Complaint
In February 2004, Howard searched the internet for health insurance information in order to purchase a policy for himself and his wife Charlotte. He entered preliminary personal information on a Web page about a health insurance plan available through Alliance. Casey, an insurance agent associated with Alliance, called and arranged to meet with the Woffindens on February 27, 2004.
During the meeting at the Woffindens’ home, Casey stated that he was an independent agent who represented Alliance. He described Alliance as an independent network of entrepreneurs and small businesses that had joined together to select and negotiate health insurance and other services on favorable terms for themselves and their members. Casey told the Woffindens that Alliance had selected Mid-West as the preferred company for its members.
Alliance had established a “group policy” with Mid-West, which was known as the “California Cover America Plan.” Casey presented coverage options under the policy. Under the $300 option, hospital room and board would be covered at $300 per day. Under the $600 option, hospital room and board would be covered at $600 per day.
Howard explained that they had no experience with medical problems. He asked Casey, “What does a hospital charge?”; “I’m asking you, is this good coverage, medium coverage?”; “What’s good coverage?” He also told Casey, “I have a family-a wife and a daughter-and I need us to be covered in the event of a calamity.”
Casey told Howard that the Mid-West policy was equal or superior to Howard’s existing Blue Cross policy. He said that Alliance had a network of medical providers known as the CCN Network and insureds benefited from substantially discounted prices that had been pre-negotiated with in-network medical providers. As he presented the amounts and percentages of coverage for various line items under the policy, Casey discussed the difference between the cost of medical care for services within the CCN Network and outside the network.
Between the two options, Casey recommended the $300 option. He said that because of Alliance’s pre-negotiated pricing and discounts, the lower coverage would be more than adequate to meet the Woffindens’ needs. Casey told the Woffindens that his own family was on the Mid-West plan, it was “great coverage,” and Mid-West had a good record of “compassionate coverage.” Charlotte mentioned that she had previously received care at Cedars-Sinai Medical Center. Casey said, “Oh, good, we have huge discounts with Cedars.” Casey assured the Woffindens that the plan would suit their purposes. At the end of the presentation, Casey recommended that the Woffindens purchase several riders to the policy, noting that one of his family members had needed to use the rider under an Alliance plan.
Based on these representations, the Woffindens were satisfied that the policy would meet their needs. Casey completed an application for a Mid-West policy for them. Casey said he could find a good premium for them and the Mid-West plan would cover them. The Woffindens believed they were purchasing a catastrophic health insurance plan that would protect them from the risk of significant medical expenses. Based on Casey’s explanation, the Woffindens had the impression that the policy’s annual deductible would be $5,000, after which they would be responsible for co-payments of 20 percent of costs, up to a maximum out of pocket expense. Mid-West accepted the Woffindens for coverage as of March 5, 2004.
In fact, Alliance is a marketing device to promote Mid-West insurance. Alliance is essentially the exclusive sales vehicle for Mid-West health insurance policies. The policy purchased by the Woffindens provided very limited coverage.
In December 2005, Charlotte experienced a sudden onset of abdominal pain and rectal bleeding. She was scheduled for a colonoscopy on December 29, 2005. That day, the financial manager from the doctor’s office called to inform Howard that his policy’s deductible was $5,000 per occurrence, rather than per year, and the office required $2,000 prior payment to operate to remove a fibroid tumor. Charlotte had surgery the following day, and the tumor was confirmed to be malignant later that week. On January 17, 2006, the Woffindens consulted with an oncologist at Cedars-Sinai Comprehensive Cancer Center. The admissions representative bluntly told them their Mid-West insurance policy was “not worth anything.” Charlotte became distraught. Medical costs mounted for Charlotte’s treatment, and a Cancer Center representative suggested that she discontinue treatment until the Woffindens could find a way to pay for it.
The Woffindens began receiving the Explanation of Benefit forms showing that they were personally responsible for large percentages of most of their medical bills and realized Mid-West intended to pay a small fraction of the total. The Woffindens struggled to obtain medical care and treatment for Charlotte’s cancer using their savings and incurring substantial debt. When Charlotte died from the cancer at age 53, her family was left burdened with a substantial debt. The total cost of Charlotte’s medical care for the cancer was $781,927.02, of which their health insurance policy paid $76,097.15.
On December 4, 2006, Howard filed the complaint in the instant case. On November 6, 2007, Howard filed an amended complaint against HealthMarkets, Mid-West, Casey, HealthMarkets Lead Marketing Group (HMLMG), Alliance, William Callaghan, Specialized Association Services, and Cornerstone America. The causes of action alleged against Casey, Alliance, and Mid-West were for intentional misrepresentation, fraud by concealment, promissory fraud, intentional infliction of emotional distress, and civil conspiracy. In addition, Howard alleged a cause of action against Alliance for breach of fiduciary duty. Howard also alleged causes of action against Casey for professional negligence and negligent failure to obtain insurance coverage.
Federal Class Action Litigation and Motion to Enforce Class Settlement
In February 2004, the federal Judicial Panel on Multidistrict Litigation transferred nine actions filed in Mississippi and California against multiple defendants, including United Insurance Companies, Inc. (UICI), UICI’s wholly owned subsidiaries Mid-West and MEGA Life & Health Insurance Company, UICI Marketing, Inc., and associations such as Alliance, National Association for the Self-Employed, Inc. (NASE), and Americans for Financial Security, Inc. (AFS) to the Northern District of Texas for consolidated proceedings in In re: UICI “Association-Group” Insurance Litigation, MDL 1578. The defendants’ principal places of business were in Texas, and the actions shared allegations that defendants engaged in a scheme to sell health insurance by fraudulently concealing the relationships between UICI, Mid-West, MEGA, and the associations. Other actions were later made part of the consolidated proceedings as well.
One of the transferred complaints was Lacy v. MEGA Life & Health Insurance Co., United States District Court for the Northern District of California, Oakland Division, Civil Case No. C03-02852 CW (Lacy). Lacy originally filed the action in state court on April 22, 2003, on behalf of herself and the general public, alleging unfair business practices under Business and Professions Code section 17200 and seeking an injunction under Business and Professions Code section17500. The complaint alleged that no California consumer had more than $10,000 in actual damages and Lacy would not seek more than $25,000 per California consumer. The complaint further alleged defendants engaged in a marketing scheme by which the associations were falsely represented to be independent entities and initial premium rates were artificially low, referred to as “teaser rates.” Scheduled premium increases eventually made the policies uncompetitive and expensive, which forced insureds with health problems to be eliminated from the insured pool. There was no allegation that Lacy ever purchased an insurance policy from any defendant.
On its own motion, the court takes judicial notice of the complaint filed in Lacy, Alameda Superior Court No. RGO3-092881.
Another of the consolidated complaints was Golebiowski v. MEGA Life & Health Insurance Co., United States District Court for the Northern District of Mississippi, Eastern Division, Civil Action No. 1:03CV620 D-D (Golebiowski). Golebiowski’s class action complaint filed in federal court alleged a similar marketing scheme to deceive consumers and avoid insurance regulations. Golebiowski had enrolled in NASE and purchased a MEGA policy in January 2001. His monthly premium had increased over two and a half years from $492 to $618.
On its own motion, the court takes judicial notice of the complaint filed in Golebiowski.
On May 14, 2004, the lead plaintiffs in the related actions Golebiowski and Lacy, on behalf of themselves and a class of similarly situated persons, executed a settlement with the defendants. The settlement class included anyone who had purchased an association membership from the NASE, AFS, and/or Alliance between August 1, 1998, and May 14, 2004, and/or anyone who had coverage between August 1, 1998, and May 14, 2004, under an individual health insurance policy issued or assumed by MEGA or Mid-West.
The settlement contained a comprehensive and exhaustive release of any and all claims against the defendants, including claims against UICI, UICI Marketing, Inc., Mid-West, Alliance, and any of their past or present agents. However, certain claims were expressly excluded from the release, including any specific claims by an individual based on representations regarding the nature or scope of health insurance coverage and any damages arising from the representations. Specifically, the settlement provisions stated: “Excluded from the Released Claims are any specific claims by an individual based on the payment, adjustment, or partial or total denial of insurance benefits or representations regarding the nature or scope of health insurance coverage and any damages arising therefrom, and any specific claims by an individual based on the partial or total denial of non-health insurance Association benefits or representations regarding the non-health insurance Association benefits under any Association membership and any damages arising therefrom.”
The settlement agreement defines “released claims” as “all claims [including unknown claims,] demands, rights, liabilities, and causes of action of every nature and description whatsoever, known or unknown, currently accrued or unaccrued, whether concealed or hidden, asserted or that might have been asserted, including, without limitation, claims for negligence, gross negligence, breach of contract, breach of duty of care, breach of duty of loyalty, fraud, fraudulent inducement, non-disclosure, intentional fraud, fraudulent misrepresentation, suppression, concealment, fraudulent concealment, failure to disclose, false advertising, marketing fraud, join enterprise, conspiracy, fraudulent sales schemes, consumer fraud, constructive trust, conversion, breach of fiduciary duty, breach of the duty of good faith and fair dealing, breach of trust duties, unjust enrichment, deception, professional negligence, negligent misrepresentation, intentional misrepresentation, bad faith, deceptive advertising and/or unfair or unlawful trade practices, or violations of any state or federal statutes, rules or regulations including, without limitation, claims under Texas Business and Commerce Code, Texas Administrative Code, Texas Insurance Code, California Insurance Code, Mississippi Insurance Code, California Business and Professions Code Sections 17200 et seq. and 17500 et seq. (collectively, ‘Section 17200’), or any other claims by any Plaintiff or member of the Settlement Class against any of the Released Parties related to [¶] (i) the marketing, solicitation, application, acceptance, sale, purchase, operation, retention, premium increases, premium payment, administration, or termination of any health policy or certificate issued or assumed by MEGA or Mid-West during the Settlement Class Period; or [¶] (ii) the marketing, solicitation, application, acceptance, sale, purchase, operation, retention, administration, or termination of any NASE, AFS, or Alliance membership during the Settlement Class Period; or [¶] any and all claims, disputes, and conduct that were asserted or could have been asserted in the Related Actions, or any acts or omissions of any of the Defendants in connection therewith including, but not limited to, claims arising from, based upon, or related to the following allegations that:
The defendants agreed to delete all statements from their marketing materials and websites to the effect that membership in an association was required to maintain health insurance, the associations “endorse” MEGA or Mid-West’s health insurance, and that the associations audit MEGA or Mid-West’s financial records.
In exchange for releasing their claims, the insured class members could submit an application for four months of free accident insurance. If they paid for one month of accident coverage, they would receive six months free instead of four months. After the free coverage period ended, the accident policy could be renewed for a year for a payment of $36.00 for an individual or $78 for a family. Association members could receive discounts under the settlement agreement between $1 and $4 per month for 6 to 12 months, depending on the type of association membership. Class members who joined an association would receive a discount of $1 per month for 6 months, after which their accounts would be automatically charged the undiscounted rates.
Each named class plaintiff received a one-time, lump-sum payment of $15,000, and the attorneys for the class received a lump-sum payment of $6,000,000.00.
The class notice was distributed on August 2, 2004 by first-class mail to all known putative settlement class members for whom the class action defendants had addresses. A summary notice of settlement was published in USA Today and the New York Times on the same day. On October 15, 2004, the Texas federal court entered a judgment finding that the release was tailored to address the specific “Association-Group” allegations, certifying the settlement class, and approving the class settlement.
In April 2006, UICI changed its name to HealthMarkets. UICI Marketing, Inc. changed its name to HMLMG. In April 2007, Mid-West, HealthMarkets, and HMLMG filed a motion in the Texas federal court seeking to enjoin Howard from litigating claims in the California action that he released as a member of the settling class in In re: UICI “Association-Group” Insurance Litigation, MDL 1578. On August 2, 2007, the Texas federal court summarily denied the motion to enforce the injunction.
Mid-West’s Motion for Summary Judgment
Mid-West filed a motion for summary judgment or, in the alternative, summary adjudication. Mid-West argued that: 1) the misrepresentations, omissions, and promises about the interrelationship between Mid-West and Alliance had been released in the class settlement; and 2) other misrepresentations, omissions, and promises by Casey did not concern material facts, were non-actionable opinions, violated the parol evidence rule, and could not have been justifiably relied upon because the Woffindens were bound by the policy language. In addition, Mid-West argued it had no duty to disclose the omitted facts, there was no evidence of extreme or outrageous conduct to support intentional infliction of emotional distress, no evidence that Howard suffered severe emotional distress as a result of Mid-West’s actions, and Howard could not recover for emotional distress based on a fraud claim.
Howard opposed Mid-West’s motion on the grounds that the Texas federal court had already found the claims were not barred by the class settlement, the class settlement barred claims only on behalf of a class, all of the representations alleged in the complaint were supported by evidence, the misrepresentations are not barred by the parol evidence rule because they were not at variance with the terms of the policy, the Woffindens justifiably relied on the representations, omissions and false promises, Mid-West’s agent had a duty to disclose facts that materially qualified the facts disclosed, there was evidence Howard suffered severe emotional distress as a result of Mid-West’s conduct, and Howard can recover mental distress damages resulting from fraud.
Mid-West filed a reply asserting that the Texas federal court had not ruled on the merits of whether Howard’s claims were barred by the class settlement, but rather refrained from exercising its discretion in order to allow the state court to determine whether the pending claims were barred by principles of res judicata. In addition, Howard’s interpretation of the release provision was incorrect. Although the settlement excluded from the release individual claims based on representations regarding the nature or scope of health insurance coverage, it did not exclude individual claims based on misrepresentations or omissions regarding the interrelationships among the defendants which were asserted in Howard’s complaint. In addition, Mid-West continued to dispute that Howard had established the representations were made to him. Also, Howard was put on notice of misrepresentations and omissions when he received the policy, yet kept it, and therefore, cannot claim to have reasonably relied on the representations and omissions. The conduct was not outrageous, Howard cannot recover emotional distress damages under a fraud claim, and Civil Code section 3343 limits fraud damages to out-of-pocket expenses.
Alliance’s Motion for Summary Judgment
Alliance filed a motion for summary judgment, or in the alternative, summary adjudication, in which Alliance argued that all of Howard’s claims were released in the class settlement. In addition, Alliance asserted that there were no facts giving rise to a fiduciary duty owed by Alliance to Howard, Casey’s statements about the policy were not inconsistent with the coverage the Woffindens received, Casey’s statements were non-actionable opinion, and Howard had not identified a specific misrepresentation about coverage, any misrepresentation regarding coverage would violate the parol evidence rule, Howard cannot establish justifiable reliance on any representations about coverage that contradict the express terms of the policy, defendants did not conceal any facts or the facts were not material and Alliance had no duty to Howard to disclose the facts, Casey did not promise to take any future action based on the Woffindens purchasing membership to Alliance or insurance from Mid-West, the complaint states no facts about formation of a conspiracy and Howard has no evidence of a conspiracy, and emotional distress is not recoverable for fraud.
Howard opposed Alliance’s motion on the grounds that the Texas federal court had already found the claims were not barred by the class settlement, the class settlement barred claims only on behalf of a class, Casey established a fiduciary relationship with the Woffindens when he advised them of the benefits of joining Alliance while acting as a representative of Alliance, the misrepresentations were material, the misrepresentations are not barred by the parol evidence rule because they were not at variance with the terms of the policy, the Woffindens justifiably relied on the representations, omissions and false promises, there is evidence to support that a finding that Alliance concealed material facts that it had a duty to disclose, there was evidence to support finding Alliance made promises to the Woffindens, there is evidence to support finding a civil conspiracy, there was evidence Howard suffered severe emotional distress as a result of Mid-West’s conduct, and Howard can recover mental distress damages resulting from fraud.
Alliance filed a reply on various grounds, including that the Texas federal court’s order had no res judicata effect and the release in the class settlement was not limited to claims by a class.
Trial Court Ruling and Subsequent Proceedings
A hearing was held on August 12, 2008, on Mid-West’s motion for summary judgment. The trial court found there was no indication as to whether the Texas federal court’s summary denial of the request for injunctive relief was based on a technical defect, an exercise of discretion, or a ruling on the merits. Therefore, the order did not prevent the California court from determining whether the claims were released. The trial court interpreted the release to apply to the claims in this case. Moreover, the court found that the claims excluded from the release related solely to claims handling. The court granted the motion for summary judgment on the ground that all of the claims alleged against Mid-West had been released in the class settlement.
A hearing was held on August 13, 2008, on Alliance’s motion for summary judgment. Based on the court’s interpretation of the released claims provisions of the class settlement, the court granted the motion for summary judgment on the ground that all of the claims alleged against Alliance had been released.
On August 21, 2008, Casey filed a motion for judgment on the pleadings on the ground that Howard’s claims against the agents of Mid-West and Alliance were released in the class settlement as well. The trial court denied the motion for judgment on the pleadings on September 8, 2008, after concluding that the complaint alleged in the alternative that Casey was an independent contractor or an agent.
On September 15, 2008, the trial court entered a judgment of dismissal in favor of Mid-West and a judgment of dismissal in favor of Alliance. On October 15, 2008, prior to the commencement of trial, Casey renewed his motion for judgment on the pleadings. Howard stipulated that Casey was an agent of Mid-West and Alliance, as well as an independent contractor, and the relationships were not mutually exclusive. The trial court found that Howard’s claims against Casey were released in the class settlement and granted the motion for judgment on the pleadings. On November 19, 2008, the trial court entered an order granting Casey’s motion for judgment on the pleadings and a judgment of dismissal as to Casey.
Howard filed a timely notice of appeal from the “judgment” entered September 15, 2008, in favor of Mid-West, Alliance, and other defendants. Howard also filed a notice of appeal from the October 15, 2008 order granting Casey’s motion for judgment on the pleadings. We construe the first notice of appeal to refer to both of the judgments entered on September 15, 2008, and the second notice of appeal as being from the judgment of dismissal as to Casey entered November 19, 2008.
DISCUSSION
Standard of Review
“On an appeal from a grant of summary judgment, we examine the record de novo to determine whether triable issues of material fact exist. [Citation.] We view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the nonmoving party. [Citation.]” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1245-1246.)
The moving party has the burden to demonstrate “that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) A defendant moving for summary judgment “‘may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established [citation].’ [Citation.]” (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 750.) “If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment ‘to make [its own] prima facie showing of the existence of a triable issue of material fact.’ [Citation.] ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.]” (Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1246.)
Code of Civil Procedure section 437c, subdivision (f)(1) provides that “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.... A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”
Piecemeal disposition of predicate facts and issues is inappropriate. (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97-98.) “‘Cause of action’ means ‘“a group of related paragraphs in the complaint reflecting a separate theory of liability.”’ [Citation.] The appellate court found the clear intent of Code of Civil Procedure section 437c, subdivision (f) is ‘“to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or defense.”’ [Citation.]” (Catalano v. Superior Court, supra, at p. 96.)
Federal Court Order Denying Injunction
Howard contends the Texas federal court order denying injunctive relief was a ruling on the merits that Howard’s claims were not released in the class settlement. We cannot agree.
The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” (28 U.S.C. § 1651(a).) “This power dovetails with the relitigation exception to the Anti-Injunction Act, which, although generally prohibiting federal courts from enjoining state proceedings, permits a court to enjoin a state court ‘where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.’ [(28 U.S.C. § 2283.)]” (Vasquez v. Bridgestone/Firestone, Inc. (5th Cir. 2003) 325 F.3d 665, 675.)
“The relitigation exception is grounded in principles of res judicata and collateral estoppel. [(]Chick Kam Choo v. Exxon Corp. [(1988) 486 U.S. 140, 147.)] The test for the relitigation exception is the same test used to determine claim preclusion or res judicata: ‘(1) the parties in a later action must be identical to (or at least in privity with) the parties in a prior action; (2) the judgment in the prior action must have been rendered by a court of competent jurisdiction; (3) the prior action must have concluded with a final judgment on the merits; and (4) the same claim or cause of action must be involved in both suits.’ [(Regions Bank v. Rivet [(5th Cir. 2000)] 224 F.3d 483, 488 [internal quotation marks and citation omitted]; N.Y. Life Ins. Co. v. Gillispie [(5th Cir. 2000)] 203 F.3d 384, 387.)]” (Vasquez v. Bridgestone/Firestone, Inc., supra, 325 F.3d at pp. 675 676.)
The federal court is not required to grant the requested injunction. (Bailey v. State Farm Fire & Cas. Co. (10th Cir. 2005) 414 F.3d 1187, 1189.) “The plain language of the All Writs Act establishes the permissive, non-mandatory, nature of the court’s power to issue an injunction. [(See 28 U.S.C. § 1651(a) [stating that ‘courts... may issue all writs,’ emphasis added.)] So too is the relitigation exception to the Anti-Injunction Act. [(See Brooks [v. Barbour Energy Corp. (10th Cir. 1986)] 804 F.2d [1144,] 1146 [explaining that the Anti-Injunction act allows courts to issue injunctions in certain circumstances].)]” (Bailey v. State Farm Fire & Cas. Co., supra, at p. 1189.)
The Texas federal court order denying Mid-West’s request for injunctive relief does not state any basis for the ruling. The Texas federal court may have simply exercised its discretion to deny the request based on comity concerns. (Bailey v. State Farm Fire & Cas. Co., supra, 414 F.3d at p. 1190.) Therefore, we must conclude that the Texas federal court order denying injunctive relief has no preclusive effect on the issues in this case.
Misrepresentation
Howard contends that his cause of action for misrepresentation was not released in the class settlement and triable issues of fact exist. We agree.
A. Misrepresentation Allegations in the Complaint
The gravamen of Howard’s cause of action for misrepresentation is that Casey told the Woffindens they were purchasing catastrophic coverage and, with the pre-negotiated discounts at Cedars-Sinai, the policy provisions would be sufficient to meet their needs in the event of a calamity, comparable to the Blue Cross policy that the Woffindens were insured under at the time of the meeting.
Specifically, the complaint alleged Casey made the following misrepresentations: 1) Alliance was an independent network of entrepreneurs and small businesses organized to seek out, select, negotiate and procure health insurance and other services on favorable terms for the benefit of Alliance members; 2) Alliance was an independent network of entrepreneurs and small businesses that had organized to prearrange pricing with medical providers on behalf of themselves and other association members; 3) due to the prearranged pricing, the coverage under the Mid-West policy would be reasonably comparable to the coverage the Woffindens had under their existing Blue Cross policy; 4) the CCN Network provided Alliance members with advantages that people insured under competing health insurance policies did not enjoy; 5) Alliance had selected Mid-West as the company whose policies it would offer to members; 6) for a family seeking catastrophic coverage to protect against a calamitous event involving a serious medical condition requiring hospitalization, the $300 option was preferable; and 7) the policy would protect the Woffindens from the cost of treating a catastrophic illness at Cedars-Sinai Medical Center.
B. Applicable Law
The elements of fraud are: (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.) “Additionally, to establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’ [Citation.]” (Ibid.)
C. Evidence Submitted in Connection with Summary Judgment Motions
In support of its motion for summary judgment, Mid-West submitted the following evidence on the issue of misrepresentation from Howard’s deposition testimony. The Woffindens discussed their insurance needs with Casey, including their existing Blue Cross policy, the needs of a family with a young daughter, and their desire to find the same level of coverage that they had through Blue Cross. They hoped to pay approximately the same $500 monthly premium that they had for the Blue Cross policy. The Woffindens told Casey that they wanted a policy with a wellness program for children, so they could have regularly scheduled visits for health maintenance for their daughter, as well as protection for calamitous events. Casey described the coverage offered by Mid-West, using printed material as a guideline for his presentation. The Woffindens asked how the coverage that he described worked out in real terms in the marketplace. They explained that their only experience with hospitalization had been the birth of their daughter several years earlier and they did not really know if the figures that he had discussed with them were adequate or not. Casey told them the policy coverage was more than adequate for the Woffindens’ needs. Mid-West and the Alliance seemed interchangeable during the discussion, but Casey explained that Mid-West had significant pre-negotiated discounts with most of the major healthcare providers that the Woffindens would use. The Woffindens told Casey that their daughter had been born at Cedars-Sinai. Casey said that was great, because they had a very strong relationship with Cedars-Sinai and they had strong discounts that had been negotiated with Cedars-Sinai. Casey stated that his own family was covered by this policy. He provided anecdotes of people he knew that had been hospitalized and said in those cases, the coverage had been wonderful and more than adequate.
Casey discussed the differences between one plan’s benefit of $300 and another plan’s benefit of $600 toward hospital room and board. Before getting into a significant discussion about the differences, Casey basically recommended that all of the Woffindens’ needs would be covered under the $300 arrangement and they shouldn’t bother with the $600 arrangement. Casey gave the Woffindens the impression that the $600 option did not add much more for the increased premium cost. They did not discuss any examples as to a particular hospital’s charges per day for room and board.
The Woffindens received a letter with the certificate of coverage from Mid-West advising them to review their insurance coverage carefully. Howard reviewed the documents, including a notice that he had 10 days to examine and return the certificate if he was not satisfied. The certificate was consistent with the terms that the Woffindens had discussed with Casey.
In addition to the evidence submitted by Mid-West, Alliance also submitted a declaration by Howard Segal that Alliance has an independent Board of Directors with no affiliation to Mid-West or HealthMarkets, Alliance is owned by its members and not controlled by HealthMarkets or any HealthMarkets’ subsidiaries, and as an independent insurance agent, Casey is an enroller for Alliance, but not an employee. In addition, Alliance submitted Howard’s deposition testimony that the explanation of benefit forms he received showed discounts in some circumstances had been provided even for expenses that were not covered under the policy based on a CCN contract with the provider and Howard’s Mid-West certificate of insurance. For example, a room and board charge of $9,500 had been reduced by $2,800 based on a preferred provider discount.
Howard submitted evidence in opposition to Alliance’s motion to show that Alliance shared officers and directors with companies related to HealthMarkets and he had negotiated the discounts that he received from providers.
D. Claims Excluded from the Release in the Class Settlement
Howard contends that his cause of action for misrepresentation was not released in the class settlement agreement. We agree.
“‘In interpreting an unambiguous contractual provision we are bound to give effect to the plain and ordinary meaning of the language used by the parties.’ [Citation.] Thus, where ‘“contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further.”’ [Citation.] ‘If the contract is capable of more than one reasonable interpretation, it is ambiguous [citations], and it is the court’s task to determine the ultimate construction to be placed on the ambiguous language by applying the standard rules of interpretation in order to give effect to the mutual intention of the parties [citation].’ [Citation.] However, the ‘mere fact that a word or phrase in a [contract] may have multiple meanings does not create an ambiguity.’ [Citation.]” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 524-525.)
“The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, § 1641.) “A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.” (Civ. Code, § 1643.) “The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.” (Civ. Code, § 1644.) “In sum, courts must give a ‘“reasonable and commonsense interpretation”’ of a contract consistent with the parties’ apparent intent. [Citation.] The language ‘“‘in a contract must be construed in the context of that instrument as a whole.’”’ [Citation.] Further, if possible, the court should give effect to every provision of the contract. [Citation.]” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 107 Cal.App.4th at p. 526.)
The definition of released claims in the class settlement excludes any specific claims by an individual based on representations regarding the nature or scope of health insurance coverage and any damages arising therefrom. A representation about the nature of a policy’s coverage is a representation about the essential character or distinguishing qualities of the coverage, while a representation about the scope of coverage is a representation about the range or extent of coverage. Casey’s representation to the Woffindens that the Mid-West health insurance policy would provide catastrophic health insurance coverage was a representation as to the nature of the coverage. Casey’s representation that the terms of the policy, when combined with the pre-negotiated discounts at Cedars-Sinai, would provide coverage comparable to the Woffindens’ Blue Cross policy was a representation about the scope of the Mid-West policy’s coverage. We conclude that Howard’s cause of action for misrepresentation was excluded from the released claims in the class settlement.
The complaint alleges that Casey said Alliance was an independent group of small businesses which selected Mid-West for the benefit of its members, but Howard is not seeking damages based on these representations. Even if Alliance and Mid-West were the same company, it made no difference to the Woffindens as long as they received coverage under the policy as it was represented. However, Casey’s statements about the relationship between the companies is evidence to support finding the Woffindens were justified in relying on Casey’s statements about the policy provisions, because it explained how the Woffindens could obtain catastrophic coverage under the Mid-West policy at a price that was competitive with an employer’s group policy. If Casey’s representations about Alliance are proven to be false, this evidence would support an inference that Casey made false representations about the nature and scope of the policy with the intent to deceive the Woffindens.
E. Triable Issues of Fact
Alliance contends the evidence shows no false representations were made to the Woffindens. We find Alliance failed to shift the burden of proof on this issue, and moreover, the evidence shows triable issues of fact exist.
Alliance introduced evidence that the Woffindens received some discounts from medical providers and argued that Casey’s statements about the policy did not conflict with the policy terms. The evidence submitted by Alliance was insufficient to establish that Casey’s alleged representations to the Woffindens were true, namely, that the Woffindens coverage under the Mid-West policy would meet their stated needs, comparable to their existing Blue Cross policy, in light of the pre-negotiated discounts with medical providers. In addition, Howard submitted evidence in opposition to Alliance’s motion showing triable issues of fact as to whether Alliance was an independent association selecting insurance coverage for the sole benefit of its members, whether discounts were pre-negotiated with providers, and whether the discounts and the policy reasonably met expectations based on Casey’s representations and the coverage requested by the Woffindens.
F. Parol Evidence
Mid-West and Alliance contend the oral misrepresentations alleged in the complaint violate the parol evidence rule. This is incorrect
The parol evidence rule is set forth in Code of Civil Procedure section 1856 as follows in pertinent part: “(a) Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement. [¶] (b) The terms set forth in a writing described in subdivision (a) may be explained or supplemented by evidence of consistent additional terms unless the writing is intended also as a complete and exclusive statement of the terms of the agreement. [¶] (c) The terms set forth in a writing described in subsection (a) may be explained or supplemented by course of dealing or usage of trade or by course of performance.”
In this case, Howard has not alleged any oral representations that contradict the terms of the policy. All of Casey’s oral representations were consistent with the policy terms. However Casey made representations about pre-negotiated discounts, the Woffindens’ existing coverage and hospitalization charges that supplemented and explained the terms of the policy. For example, Casey’s representations about pre-negotiated discounts explained how the stated policy terms would be sufficient coverage for the Woffindens’ needs and comparable to their Blue Cross coverage. Casey made representations which explained how the policy terms would be more than adequate coverage for the hospitalization charges of a calamitous medical need, similar to their existing Blue Cross policy. The representations alleged in the complaint do not violate the parol evidence rule, because they explain and supplement the terms of the policy without contradicting any provisions of the policy.
G. Statements of Opinion
Mid-West and the Alliance contend Casey’s statements were nothing more than non-actionable opinion and puffery. We disagree.
“A statement is considered puffery if the claim is extremely unlikely to induce consumer reliance. Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim. [Citation.] ‘The common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions.’ [Citation.] Thus, a statement that is quantifiable, that makes a claim as to the ‘specific or absolute characteristics of a product,’ may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery. [Citation.]” (Newcal Industries, Inc. v. Ikon Office Solution (9th Cir. 2008) 513 F.3d 1038, 1053.)
The representation that discounts had been pre-negotiated with medical providers, including Cedars-Sinai, was a representation of a fact. When the Woffindens explained the type of coverage that they were seeking and Casey told them that the Mid-West policy would be “good coverage,” “more than adequate” for their needs, he represented that the policy met their stated needs. He was not simply giving an opinion or puffing.
H. Justifiable Reliance
Mid-West and Alliance contend Howard cannot establish justifiable reliance on Casey’s representations as a matter of law, because he is bound by the terms of the policy. We disagree.
Mid-West and Alliance rely on Hadland v. NN Investors Life Ins. Co. (1994) 24 Cal.App.4th 1578, which stands for the proposition that an insured has a duty to read the policy. (Id. at p. 1589; Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, 1463.) “‘“[T]he receipt of a policy and its acceptance by the insured without an objection binds the insured as well as the insurer and he [or she] cannot thereafter complain that he [or she] did not read it or know its terms. It is a duty of the insured to read his [or her] policy.” [Citation.]’ [Citation.]” (Hadland v. NN Investors Life Ins. Co., supra, at p. 1586.) “‘“A reasonable person will read the coverage provisions of an insurance policy to ascertain the scope of what is covered. [Citation.]”... Generally the insured is “bound by clear and conspicuous provisions in the policy even if evidence suggests that the insured did not read or understand them.” [Citation.]’ [Citation.]” (Ibid.) “The Hadlands, having failed to read the policy and having accepted it without objection, [could not] be heard to complain it was not what they expected. Their reliance on representations about what they were getting for their money was unjustified as a matter of law.” (Id. at p. 1589.)
However, in the context of negligent misrepresentation, the court in Clement v. Smith (1993) 16 Cal.App.4th 39, 45 stated, “When dealing with a contract as adhesive as the typical insurance policy, we are unwilling to impose on the insured so onerous a burden as would automatically defeat any agent’s liability for misrepresentation. Certainly an insured cannot remain intentionally ignorant of the terms of his or her policy.... Absent some notice or warning, an insured should be able to rely on an agent’s representations of coverage without independently verifying the accuracy of those representations by examining the relevant policy provisions. This is particularly true in view of the understandable reluctance of an insured to commence a study of the policy terms where even the courts have recognized that few if any terms of an insurance policy can be clearly and completely understood by persons untrained in insurance law. (See Raulet v. Northwestern etc. Ins. Co. (1910) 157 Cal. 213, 230; Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 783.)”
This is not a case in which the policyholder was unjustified in relying on an agent’s representations as a matter of law because the policyholder failed to read the policy. In this case, Howard read the policy and concluded that it was consistent with the terms that Casey had described. Casey’s representation that significant discounts had been pre-negotiated discounts with health providers, including Cedars-Sinai, did not conflict with any of the policy terms. The policy terms do not clearly fail to provide catastrophic coverage comparable to the Woffindens’ Blue Cross policy, because there is no information from which to evaluate the pre-negotiated discounts for services or the real world cost of medical procedures. A trier of fact could find it reasonable for the Woffindens to believe that their medical costs would be covered under the policy terms or pre-negotiated charges for medical services would bring costs within the policy’s limits. It is an issue of fact as to whether the Woffindens were justified in relying on Casey’s representations that the policy terms provided the coverage that they were seeking.
Concealment
Howard contends that the complaint states a cause of action for concealment that was not released in the class settlement. We agree.
A. Concealment Allegations
The complaint alleged that Casey failed to disclose that: 1) Alliance was established by HealthMarkets and Mid-West for the specific purpose of selling the health insurance policies of HealthMarkets subsidiaries; 2) the persons who owned or controlled the insurer also owned or controlled Alliance; 3) virtually all memberships in Alliance were sold by HealthMarkets insurance agents for HealthMarkets subsidiaries; 4) virtually all Mid-West health insurance policies were sold through Alliance or an association similarly affiliated with HealthMarkets and one or more HealthMarkets subsidiaries; 5) SAS performed most of Alliance’s operations, including fielding and routing insurance-related calls from Mid-West insured, and SAS was owned and operated by the son of the HealthMarkets Chairman; 6) Alliance was not a nonprofit membership association, but a for-profit marketing arm of HealthMarkets and Mid-West; 7) the Mid-West policy’s limited coverage would leave the Woffindens personally responsible for the bulk of the costs associated with any illness; 8) the maximum daily benefits for various covered inpatient services under the policy were below what hospitals typically charge and the Woffindens could be responsible for significant uncovered amounts; 9) the policy was not a catastrophic health insurance policy, thus did not meet the Woffindens’ stated needs; 10) important policy terms, such as “miscellaneous hospital inpatient charges,” include all inpatient care other than room and board and surgeons’ fees; 11) the unusual aspects of the policy, such as a deductible which applied per period of confinement rather than annually and that after an initial hospitalization, the policy might provide no coverage for subsequent hospitalizations for the same illness within 180 days; and 12) unlike the Woffindens’ existing Blue Cross plan, the Mid-West policy contained no stop-loss provision.
B. Applicable Law
“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (BAJI No. 12.35 (7th ed. 1986).)” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)
“‘In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; [and] (3) the defendant actively conceals discovery from the plaintiff.’ [Citation.]” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp., supra, 6 Cal.App.4th at p. 613.)
“‘[T]he rule has long been settled in this state that although one may be under no duty to speak as to a matter, “if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells but also not to suppress or conceal any facts within his knowledge which materially qualify those stated. If he speaks at all he must make a full and fair disclosure.”’ [Citation.]” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp., supra, 6 Cal.App.4th at p. 613.)\
In the context of negligence, it is well established an insurance agent has an “obligation to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured” (Jones v. Grewe (1987) 189 Cal.App.3d 950, 954), and an agent’s failure to deliver agreed-upon coverage may constitute actionable negligence (Butcher v. Truck Ins. Exchange, supra, 77 Cal.App.4th at p. 1461). “A principle that underlies the ‘failure to deliver the agreed-upon coverage’ cases is that a disparity in knowledge may impose an affirmative duty of disclosure on the insurer or its agent. [Citation.] This principle applies, not just to insurance, but to all business transactions, and it is recognized in section 551 of the Restatement Second of Torts, which provides: ‘(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question. [¶] (2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated, [¶]... [¶] (e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.’ This Restatement rule is applicable to insurers. [Citations.]” (Butcher v. Truck Ins. Exchange, supra, at pp. 1464-1465.)
C. Claims Excluded from Class Settlement Release
Howard contends his concealment claim was not released by the class settlement. We agree. Specific claims based on representations regarding the nature or scope of health insurance coverage and any damages arising therefrom were not released in the class settlement. The exclusion was not limited to affirmative representations. The complaint alleged that Casey made certain representations about the Mid-West policy, but did not disclose facts which materially qualified the facts that were disclosed, or which rendered his disclosures likely to mislead to the Woffindens. These are claims based on representations made to the Woffindens, and therefore, were excluded from the release provisions of the class settlement.
D. Duty to Disclose
Mid-West contends it did not have a duty to disclose the omitted information and neither did Casey. It is clear that as alleged, the representations made to the Woffindens created a duty to disclose material facts that were omitted and materially qualified the disclosures that had been made.
Promissory Fraud
None of the parties raise issues concerning the cause of action for promissory fraud separately from the action for misrepresentation. Therefore, for the reasons stated in connection with the cause of action for misrepresentation, we conclude that summary adjudication of the cause of action for promissory fraud must be denied.
Intentional Infliction of Emotional Distress
Alliance contends that defendants’ alleged conduct, i.e., falsely representing that a health insurance policy will provide financial protection in the event of a catastrophic health event to induce the purchase of the policy, does not constitute the outrageous conduct necessary for intentional infliction of emotional distress as a matter of law. We must agree.
“A cause of action for intentional infliction of emotional distress exists when there is ‘“‘“(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”’”’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’”’ [Citation.] And the defendant’s conduct must be ‘“‘intended to inflict injury or engaged in with the realization that injury will result.’”’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)
It is undisputed that defendants did not know Charlotte was going to be diagnosed with cancer before the Woffindens received and reviewed their policy. (Compare Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 475-476 [insurer deliberately waited until the insured had suffered severe injuries, was disabled, and was incurring mounting medical bills before it used old information to rescind the insurance policy]; Hernandez v. General Adjustment Bureau (1988) 199 Cal.App.3d 999, 1002, 1007 [when he delayed claimant's disability payments, the insurance adjuster knew claimant was in a fragile emotional condition and susceptible to profound mental distress and knew she was in dire need of timely payments because she was the sole support of three children]; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 392 [when the insurer embarked on a course of conduct designed to coerce claimant into surrendering his disability policy, the insurer knew claimant was disabled and in dire financial straits and acknowledged its conduct was “‘deplorable’” and “‘outrageous’”].) Even viewed in the light most favorable to Howard, the defendants’ conduct in this case does not begin to approach the conduct necessary to establish intentional infliction of emotional distress. Summary adjudication of the cause of action for intentional infliction of emotional distress must be granted.
Additional Causes of Action
Howard does not raise any issues on appeal as to the cause of action for breach of fiduciary duty against the Alliance or the cause of action for civil conspiracy as to Alliance or Mid-West. “As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed. (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal.App.4th 366, 373; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42.) Therefore, summary adjudication of these causes of action is appropriate.
Judgment on the Pleadings
Casey’s motion for judgment on the pleadings was based on the trial court’s ruling that all of Howard’s claims were released in the class settlement. The trial court found the claims against Casey, as an agent of Alliance and Mid-West, were also released. As discussed above, Howard’s claims were excluded from the release provisions of the class settlement. Therefore, the order granting Casey’s motion for judgment on the pleadings must be reversed.
DISPOSITION
The September 15, 2008 judgment in favor of Mid-West, the September 15, 2008 judgment in favor of Alliance, and the November 19, 2008 judgment in favor of Casey are reversed. In addition, the orders granting summary judgment in favor of Mid-West and Alliance respectively and the order granting judgment on the pleadings in favor of Casey are reversed. The trial court is directed to enter new and different orders in accordance with this opinion. Appellant Howard Woffinden is awarded his costs on appeal.
We concur: TURNER, P. J.ARMSTRONG, J.
“(a) Any Released Party failed to disclose or misrepresented any relationship with any other Released Party;
“(b) The initial premium charged for any of MEGA or Mid-West’s health insurance products was less than the amount that was necessary or actuarially recommended for the coverage provided;
“(c) Any requirement that membership in any Association as a prerequisite to procuring health insurance from MEGA or Mid-West constitutes a violation of any statutory or common law;
“(d) Any Released Party required membership in any Association as a prerequisite to maintaining health insurance with MEGA or Mid-West;
“(e) Any Released Party violated any state or federal law by reason of its relationship to any other Released Party or by reason of any amount of money collected by any Released Party from any Member of the Settlement Class or from any other Released Party;
“(f) Any Released Party constituting an Association is not a valid association to which a policy of group insurance may be issued, including that such Association was not formed, organized, established, or maintained in good faith for purposes other than that of obtaining insurance;
“(g) Any Released Party otherwise violated any state or federal law in the organization, formation, operation, management, control, or use of the Associations, the trusts, or the Defendants’ legal or tax status; or
“(h) Any Released Party made any misrepresentation or failed to disclose any fact related to any benefit or attribute of the Associations.”