Opposition Objections

Cal. Super. - 6th Dist.May 20, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Walter C. Cook, SBN 111330 LAW OFFICES OF WALTER C. COOK 2995 Woodside Rd., #400 Woodside, CA 94062 4 1 5-902-8440 Attorney for Plaintiffs, Michael and Amanda Tomas Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 1:20 PM Reviewed By: Tunisia Tur Case #1 9CV348493 Envelope: 3587837 SUPERIOR COURT OF THE STATE OF CALIFORNIA SANTA CLARA COUNTY MICHAEL TOMAS, and AMANDA TOMAS, Plaintiffs, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, et al., Defendants. CASE NO. 19-CV-348493 MICHAEL AND AMANDA TOMAS ) ) ) ) OPPOSITION TO DEMURRER ) ) DATE: NOV. 12, 2019 ) TIME: 9:00 A.M. ) DEPT.: 19 ) JUDGE: Hon. Peter Kirwan ) ) FILED: MAY 20, 2019 ) TRIAL: Not Set ) TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Plaintiffs Michael and Amanda Tomas (hereinafter Michael and Amanda) oppose the demur 0f United Services Automobile Association (USAA) as follows: Dated: Oct. 30, 2019 Tomas v. USAA, Case N0. I9CV34893 Opp. To Demurrer. Page 1 By: LAW OFFICES OF WALTER C. COOK Walter C. Cook Attorney for Plaintiffs her 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION: The facts in this case are straightforward. This case arises from the shooting and maiming of Michael Tomas (Michael) with a .40- millimeter handgun and ammunition that was stolen from an unlocked console in an unlocked car that was owned by California Highway Patrol officer Jeremy Lucio (Lucio). (Complaint 2: 1 9-23) Michael was grievously and permanently injured in the shooting. (Complaint, 429-16. Michael was first shot in the right buttock and then in the scrotum obliterating his left testicle.) Michael is married t0 Amanda Tomas (Amanda). (Complaint, 4:9-16.) USAA insured Lucio’s rental residence and the subject vehicle. (Complaint, 429-16.) USAA contends that Lucio’s automobile policy does not apply to this loss. (Complaint, 516-10, and Exh. 2 to Complaint.) It is the position 0f Michael and Amanda that Lucio’s negligent storage of the subj ect handgun in the unlocked console in Lucio’s unlocked car constitutes a “use” 0f the vehicle which thus triggers coverage. USAA disagrees. It stated in its letter attached as EXh. 2 t0 the complaint that: Unfortunately, after careful consideration, it has been determined that failure t0 safeguard a loaded weapon in the unlocked insured vehicle 0r the theft 0f said gun out of the insured vehicle and subsequent shooting 0f the plaintiff does not constitute use 0f the automobile, nor does it constitute an automobile accident as defined by this policy. Given the conflict in position, Michael and Amanda seek a declaration from this Court that both policies apply. This Will promote judicial economy because it is better that all 0f the involved parties be informed of the available insurance available t0 Lucio before the Court and the parties are burdened with the costs 0f the underlying litigation. (Complaint, 5: 1 1-13) Tomas v. USAA, Case N0. I9CV34893 Opp. To Demurrer. Page 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. THE SUBJECT DEMURRER: USAA has demurred 0n the narrow grounds of standing.1 USAA’S basic position is that while it has the discretion to allow this declaratory action to move forward, it has the right t0 obj ect Which it does by way 0f its demurrer. (MPA, p. 5: 16- 17.) Apparently, it is USAA’S preference that Michael and Amanda first obtain an excess verdict against Lucio (predicted to be double digit multiples 0f his available coverage) before this case declaratory relief action be allowed t0 proceed. One wonders whether USAA is making its decision to obj ect, and to force the matter t0 a ruinous excess verdict against Lucio, in disregard of Lucio’s interests. Lucio has been served, but he has yet t0 appear. This demurrer should be overruled. USAA’S own authority, Royal Indemnity C0. v. United Enterprises (2008) 162 Ca1.App.4th 194, 206, stands for the proposition that, minimally, Michael and Amanda have standing t0 proceed With this lawsuit given the complaint’s allegations regarding the Med-Pay provisions in the subj ect USAA auto policy. See, Royal Indemnity C0. v. United Enterprises (2008) 162 Cal.App.4th 194, 206. It is respectfully requested that USAA’S position be rej acted, and that this Court overrule its demurrer and order USAA t0 answer. PLAINIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO USAA’S DEMURRER I. Plaintiffs Have Standing Under C.C.P. § 1060: C.C.P. § 1060 provides, in pertinent part, that: Anyperson interested under a written instrument, excluding a will 0r a trust, or under a contract, or Who desires a declaration of his or her rights or duties with respect to another, or in respect t0, in, over 0r upon property, 0r with respect t0 the location of the natural channel 0f a watercourse, may, in cases of actual controversy relating t0 the legal rights and duties of the 1 “The Demurrer is based 0n USAA’S position that Plaintiffs lack standing t0 sue USAA with regard t0 issues 0f policy interpretation and coverage.” USAA’S MPA, p. 3 :13-14. Tomas v. USAA, Case N0. I9CV34893 Opp. To Demurrer. Page 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination 0f any question of construction or validity arising under the instrument 0r contract. (Emphasis supplied). Michael and Amanda are interested persons under the above statute. The statute does not limit its application only to parties to a particular contract, but rather it provides for broader application by employing the phrase “[a]ny person interested.” Had the legislature intended t0 limit the declaratory relief statute t0 parties t0 a contract, it could have said so, but did not. II. Numerous Cases Have Allowed Strangers t0 a Contract t0 Initiate Declaratory Relief Actions for a Declaration 0f Rights and Responsibilities Under the Contract: USAA has cited the Court to at least two cases Where a stranger t0 a contract was permitted t0 pursue a declaratory relief action. They are Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198 and Thompson v. Mercury Casualty C0. (2000) 84 Cal.App.4th 90. There are other examples as well. See, Siciliano v. Fireman's Fund Ins. C0. (1976) 62 Cal.App.3d 745, 753 [“Section 1060 does not require the existence 0f a legal instrument between parties as a predicate for declaratory relief.”]; and Maryland Casually C0. v. National American Ins. C0. (1996) 48 Ca1.App.4th 1822, 1828 [priVity of contract between two insurers not required for maintenance of declaratory relief action] III. Plaintiffs Have Standing Under C.C.P. § 1060 Given the Med-Pay Allegations: USAA’S own authority, Royal Indemnity C0. v. United Enterprises (2008) 162 Cal.App.4th 194, 206, recognize that a 3rd party claimant against an insured has standing to sue the insurer t0 determine the 3rd party claimant’s right t0 claim Med-Pay benefits under the insured’s policy. Royal Indemnity C0. v. United Enterprises (2008) 162 Ca1.App.4th 194, 206, states: Another recognized exception to the limitations on standing 0f a third party claimant against an insurer is found: Where “the liability insurance also provides medical payments coverage for anyone injured by the insured, the injured party may have a direct claim against the insurer for his or her medical expenses. 1.6., the injured party is treated as an additional insured as t0 the medical payments coverage.” (Insurance Litigation, supra, 1] 15:16. p. 15-3.) Tomas v. USAA, Case N0. I9CV34893 Opp. To Demurrer. Page 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In its MPA, USAA paraphrases Michael and Amanda’s complaint starting at p. 2: 13 through p. 3: 14. At MPA p. 3:1-4, USAA quotes Michael and Amanda complaint as seeking, inter alia, “a judicial determination . . . . [of] . . . . $5,000 in med-pay coverage available to pay for Michael’s medical bills arising from this loss” and citing t0 the complaint, p.5: 14-19. Thus, under USAA’S own authority, Royal Indemnity C0. v. United Enterprises (2008) 162 Ca1.App.4th 194, 206, Michael and Amanda have standing to bring and maintain this suit. IV. Haynes and Thompson are Not Distinguishable, But Rather are 0n Point: USAA attempts to distinguish Haynes v. Farmers Ins. Exchange (2004) 32 Ca1.4th 1198 and Thompson v. Mercury Casually C0. (2000) 84 Ca1.App.4th 90, but those cases support Michael and Amanda. As here, both Haynes and Thompson involved automobile policies and declaratory actions by third parties claiming injuries by the insureds and seeking more insurance coverage than the insured would recognize and honor. Haynes at p. 1203 and Thompson at p. 93. In Haynes and Thompson injured third parties sought a judicial interpretation 0f the insureds policy’s language. In both Haynes and Thompson, the third parties sought a determination that the policies language purporting t0 reduce the amount 0f coverage for a permissive user was reduced to the statutory minimum limits was not enforceable. Haynes at p. 1203, and Thompson at p. 93. Here, Michael and Amanda seek a determination that Lucio’s storage 0f his gun and ammunition in an unlocked console in an unlocked car, and his failure t0 take the gun and ammunition from the unlocked car When he parked it constitutes, inter alia, a “use” of his insured vehicle. In Haynes, as here, the plaintiff had a personal injury suit pending against the insured at the time he filed his declaratory relief action. Haynes at p. 1203. In Thompson it is not stated whether a personal injury suit had been filed 0r was pending, but presumably one was given the accident date ofMarch 6, 1996, and the date 0f fling of the declaratory relief action, August 1, 1997. Thompson at p. 93. Tomas v. USAA, Case N0. I9CV34893 Opp. To Demurrer. Page 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In both Haynes and Thompson it was determined that the policy language favored the third parties’ interpretation over that 0f the insurers. Haynes at p. 392-393, and Thompson at p. 98. On the other hand, Otay Land C0. v. Royal Indemnity C0. (2008) 169 Cal.App.4th 556 was an intervention case and did not involve any third-party personal injury plaintiff. Moreover, it was recognized in Otay that there was not yet an “actual controversy” between the parties. (Id. at p. 566.) Rather, the plaintiff in Otay was only “a potential claimant under the policy (Id. at 560) While here Michael and Amanda are actual claimants. Otay involved a convoluted set 0f facts, a multitude 0f insurance policies, and numerous other but related proceedings. (Id. at 566-567). Thus, Otay is inapposite t0 the case at bench. Furthermore, Haynes was a Supreme Court decision, and it implicitly approved the approach taken by Michael and Amanda in this case. The Court of Appeal in Otay does not have the authority t0 overrule Haynes. V. Lucio’s Storage 0f a Handgun and Ammunition in an Unlocked Console 0f an Unlocked Car Constitutes a “Use” of Lucio’s Insured Automobile: Here, there is a raging conflict between the parties about whether Lucio’s auto-policy also applies to this claimed loss, and whether the storage 0f his gun in an unlocked console in an unlocked car constitutes a “use.” USAA’S position, however, is contrary to established authority. For example, in State Farm Mutual Auto Ins. C0. v. Partridge (1973) 10 Cal.3d 94, the California Supreme Court determined that both the insured’s homeowner’s policy and the insured’s auto policy provided coverage to a single incident involving a single gun. In Partridge, the insured and some friends were hunting jackrabbits from his car, using a gun that he had previously modified, giving it a hair trigger. When the car hit a bump, the gun went off, striking one 0f the friends. (Id. at pp. 97-98.) The insured had both an automobile policy, with a limit 0f $ 15,000, and a homeowner's policy, with a limit of $ 25,000, issued by the same insurer. (Id. at p. 98.) It was undisputed that the insured was covered under his Tomas v. USAA, Case N0. I9CV34893 Opp. To Demurrer. Page 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 automobile policy, because the injury arose out of the use of the insured vehicle. (Id. at pp. 97, 100-101 .) However, the California Supreme Court held that he was also covered under his homeowner's policy--even though that policy excluded injuries arising out of the use 0f the insured vehicle--because the modification 0f the gun was a concurrent cause of the injury, and that cause was covered under the homeowner's policy. (Id. at pp. 101-107.) Accordingly, the insurer was liable up t0 the limit of both policies. Partridge cited Fidelity and Casually Company ofNew York v. Lott (5th Cir.) 273 F.2d 500 Where the insured While 0n a deer hunt stopped his vehicle, got out, and using the automobile as a gun rest, negligently fired through the roof 0f the car causing the bullet t0 ricochet and strike one 0f the occupants. The court held there was an actual physical use 0f the vehicle and that any ambiguity in the policy respecting the meaning 0f the word ‘use’ should be resolved in favor 0f the insured. Therefore, Michael and Amanda are confident that a jury Will agree With their interpretation of Lucio’s policy, and they respectfully request that USAA’S demurrer be overruled. CONCLUSION: The demurrer should be overruled. Plaintiffs Med-Pay allegations alone are sufficient t0 defeat the demurrer (Royal Indemnity C0. v. United Enterprises (2008) 162 Cal.App.4th 194, 206), and Otay, a Court of Appeals decision, does not overrule Haynes, a Supreme Court decision. USAA should be ordered to answer the complaint. Dated: Oct. 30, 2019 LAW OFFICES OF WALTER C. COOK By: Walter C. Cook Attorney for Plaintiffs Tomas v. USAA, Case N0. I9CV34893 Opp. To Demurrer. Page 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that I am a United States citizen, over eighteen and not a party to this action. My business address is 2995 Woodside Rd, #400, Woodside, CA, 94062 On the below date I served: MICHAEL AND AMANDA TOMAS OPPOSITION TO DEMURRER on the interested party 0r parties as indicated below, addressed as follows: MAIL 2 CERTIFIED MAIL3 NEXT-DAY SERVICE4 HAND DELIVERY5 FACSIMILE6 EMAIL7 on the interested party or parties as indicated below, addressed as follows: Ian Fraser-Thomson Attorneys for USAA Stephen Barry ift@cwmlaw.com, CESARI, WERNER & MORIARTY sbarrv@cwmlaw.com, 75 Southgate Avenue Daly City, CA 94015 Theodore “Tad” Hoppe Attorney for Jeremy Lucio Hoppe Law Group In Case No. 18CV329796, but not in this action 680 W. Shaw Avenue, Suite 207 Tad@hoppe-law.com Fresno, Ca 93704 Jeremy Lucio Served but has not yet appeared 8428 Delta Dr. Gilroy, CA 95020 Dated: Oct. 30, 2019 Walter Cook 2 I personally sealed the document(s) in a postage paid package, addressed as indicated above. Following ordinary office practice, I placed it in the office's usual location for mailing with the USPS. 3 I personally served the document(s) as mail described above, and certified it With return receipt requested. 4 I personally sealed the document(s) in a postage paid package, addressed as indicated above. Following ordinary office practice, I placed it in a regularly used drop box by an overnight delivery service. 5 I personally sealed the document(s) in a package, addressed as indicated above. I caused such envelope to be hand-delivered by a same-day messenger service t0 the addressee(s) 0n this date. 6 I personally faxed the document(s) addressed as indicated above. No error was reported by the sending machine. The transmission record for this facsimile complies with California Rule of Court 2003(6). 7 I personally electronically served the document(s) to the electronic mailing address indicated above. Tomas v. USAA, Case N0. 19CV34893 Opp. To Demurrer. Page 8