Kuperstein v. Superior Court

• Decision Date: 13 September 1988
• Docket Number: No. D008396,D008396
• Court: California Court of Appeals Court of Appeals
• Parties: Fred D. KUPERSTEIN, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent. ALLSTATE INSURANCE COMPANY, Real Party in Interest.

Page 385

251 Cal.Rptr. 385

204 Cal.App.3d 598

Fred D. KUPERSTEIN, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent.

ALLSTATE INSURANCE COMPANY, Real Party in Interest.

No. D008396.

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

Sept. 13, 1988.

Review Denied Nov. 30, 1988.

Brown & Dire and William J. Becker, Jr., San Diego, for petitioner.

No appearance for respondent.

Edwards, White & Sooy, Richard R. Sooy and Susan E. Luhring, San Diego, for real party in interest.

TODD, Associate Justice.

Fred D. Kuperstein (Kuperstein), doing business as Sports Arena Tropicals (Sports Arena), sold a salt water aquarium to Ronald and Vicki Beaubien (Beaubien). The aquarium started a fire and Beaubien brought suit. Real party, Allstate Insurance Company (Allstate), never issued insurance to Sports Arena, which has not been an active business since 1981.

Kuperstein currently is doing business as Clairemont Tropical Fish (Clairemont) located at 4633 Convoy Street. On January 22, 1986, Allstate issued to Clairemont a business insurance policy limited to the Convoy Street premises.

Suit was filed May 5, 1987. Kuperstein made a claim under the Clairemont business policy. Allstate investigated the claim and reserved its rights. Allstate then moved to file a complaint in intervention in the underlying Beaubien suit seeking a declaration of rights and duties under the policy, including a declaration that it had no duty to defend or indemnify. The trial court granted the motion. Kuperstein sought review in this court. We stayed all proceedings connected with the complaint in intervention which we now vacate as part of the grant of relief.

The motion brought by Allstate was under Code of Civil Procedure section 387, subdivision (a), which permits "permissive intervention." Intervention thus is at the trial court's discretion and we look to see if there has been an abuse of that discretion.

For permissive intervention three factors are paramount: the intervenor must have a direct interest in the lawsuit, the intervenor must not enlarge the issues raised by the original parties and the intervenor must not tread on the rights of the original parties to conduct their own lawsuit. (People ex rel. Rominger v. County of Trinity (1983) 147 Cal.App.3d 655, 660-661, 195 Cal.Rptr. 186.)

Real Party argues that the issues in the complaint and in the complaint in intervention are identical, the interest of the insurer is direct due to the uniformity of issues, intervention will not enlarge the issues nor will coverage issues be injected in the trial. There are common questions of fact and law such as where the fire occurred, which parts of the aquarium contributed to the fire, where each component was purchased, who manufactured each component. This is all true. However, although the insurer and insured have an interest in the resolution of these facts, they do not share an interest in having them resolved in the same way. Allstate's interest is in having no connection between the aquarium and Convoy Street, while...