Ohio Cas. Ins. Co. v. Northwestern Mut. Ins. Co.

• Decision Date: 27 April 1971
• Citation: 17 Cal.App.3d 204,94 Cal.Rptr. 586
• Court: California Court of Appeals Court of Appeals
• Parties: The OHIO CASUALTY INSURANCE COMPANY, Plaintiff and Appellant, v. NORTHWESTERN MUTUAL INSURANCE COMPANY et al., Defendants and Respondents. Civ. 10308.

Page 586

94 Cal.Rptr. 586

17 Cal.App.3d 204

The OHIO CASUALTY INSURANCE COMPANY, Plaintiff and Appellant, v. NORTHWESTERN MUTUAL INSURANCE COMPANY et al., Defendants and Respondents.

Civ. 10308.

Court of Appeal, Fourth District, Division 1, California.

April 27, 1971.

Rehearing Denied May 12, 1971.

Hearing Denied June 23, 1971.

[17 Cal.App.3d 206] Casey, McClenahan & Fraley, and Thomas W. Hauser, San Diego, for plaintiff and appellant.

Higgs, Jennings, Fletcher & Mack, and Joel C. Estes, San Diego, for defendants and respondents.

OPINION

COUGHLIN, Associate Justice.

Plaintiff paid an insurance loss covered by a binder agreement; sought recovery of part of the loss from defendants under a policy of insurance issued by defendant Northwestern Security Insurance Company, hereinafter referred to as Security; and appeals from judgments declaring the latter policy had been cancelled effectively before the loss occurred.

Two judgments were entered in the action, one on August 5, 1969 and the other on September 2, 1969. The first judgment was entered without filing findings of fact and conclusions of law, although plaintiff had requested such pursuant to and within the time prescribed by Code of Civil Procedure, section 632 and Rule 232 of California Rules of Court. Thereafter findings of fact and conclusions of law were filed. Following this the second judgment was entered.

Plaintiff appealed from both judgments contending it was error to enter the first judgment without findings of fact, and it was error to enter the second judgment as there may only be one judgment in an action, and the court had no authority to modify the first judgment by a second judgment.

A judgment entered without findings where findings are required is a nullity and is superceded by a subsequent judgment based on findings. (Supple v. Luckenbach, 12 Cal.2d 319, 322, 84 P.2d 52; In re Estate of Hewitt, 160 Cal.App.2d 584, 587, 325 P.2d 113; Petroleum Midway Co. v. Zahn, 62 Cal.App.2d 645, 652, 145 P.2d 371.) Contrary to plaintiff's contention, the second judgment did not modify the first judgment. The judgment of September 2, 1969 was the only valid judgment in the case. (Hulbert v. All Night and Day Bank, 29 Cal.App. 765, 767, 157 P. 546.) In light of the circumstances, the appeal from the judgment entered August 5, 1969 is moot and, for this reason, should be dismissed.

The facts in the case on its merits will be stated in accord with the rule on appeal the evidence most favorable to the judgment is accepted whereas the evidence supporting a contrary conclusion is rejected. (Shields v. Shields, 200 Cal.App.2d 99, 102, 19 Cal.Rptr. 129; Apparel Mfrs'. Supply Co. v. National Auto. & Cas. Ins. Co., 189 Cal.App.2d 443, 453, 11 Cal.Rptr. 380.)

On March 2, 1966 Security issued its policy of automobile insurance to Ronald Stolberg covering a 1966 Ford automobile, in reliance upon information in an application by the latter he had no accidents and only one traffic citation within the previous three years. In due course the premium for the policy was paid by or on behalf of the insured. Following receipt of the application for insurance, Security conducted an investigation respecting the information contained therein and learned the representation Ronald had no accidents and only one traffic citation within the previous three years was false; learned he, in fact, actually had six traffic citations and two accidents within that time; and thereafter requested its general agent, Joseph S. Zboray, to obtain the policy for cancellation because of the false representations in the application. On March 29, 1966 the general agent notified Ronald's father, Ralph Stolberg, who had been instrumental in negotiating issuance of the policy to his son, Security requested surrender of the policy for cancellation because of the misrepresentations respecting Ronald's traffic and accident record. Ralph discussed the matter with his son Ronald, who had possession of the policy. The latter agreed the policy should be returned for cancellation and, on April 4, 1966, gave it to his father who, in turn, caused it to be delivered to the general agent on the same date. The court found the policy was terminated by mutual agreement and consent of the parties; and was effectively cancelled by its surrender on April 4, 1966. The general agent mailed the policy to Security and the latter received it on April 6, 1966.

Plaintiff issued its binder of automobile liability insurance to Ronald on April 6, 1966 covering the same 1966 Ford automobile previously covered by Security's policy. On April 9, 1966 Ronald was involved in an automobile accident while driving the Ford, resulting in liability for claims which plaintiff paid. On May 17, 1966 plaintiff issued to Ronald its policy of automobile insurance effective April 6, 1966, i.e., the date of the binder agreement.

Plaintiff claimed the policy issued by Security to Ronald had not been cancelled effectively and sought a prorata recovery of its loss pursuant to appropriate provisions in that policy.

The issue on appeal is whether the evidence supports the finding Security's policy was cancelled before the accident occurred on April 9, 1966.

In the main plaintiff's contentions on appeal concern a lack of compliance with policy and statutory provisions respecting cancellation. These contentions are directed to a unilateral cancellation of a policy by an insurer and are inapplicable to the case at bench which involved a cancellation by mutual agreement of the insured and insurer.

An insurance policy may be cancelled by mutual agreement of the...