Phoenix of Hartford Ins. Companies v. Colony Kitchens

• Decision Date: 07 April 1976
• Citation: 57 Cal.App.3d 140,128 Cal.Rptr. 893
• Court: California Court of Appeals Court of Appeals
• Parties: The PHOENIX OF HARTFORD INSURANCE COMPANIES, etc., et al., Plaintiffs and Respondents, v. COLONY KITCHENS, Defendant and Appellant. Civ. 14279.

Page 893

128 Cal.Rptr. 893

57 Cal.App.3d 140

The PHOENIX OF HARTFORD INSURANCE COMPANIES, etc., et al., Plaintiffs and Respondents, v. COLONY KITCHENS, Defendant and Appellant.

Civ. 14279.

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

April 7, 1976.

Spray, Gould & Bowers, Los Angeles, for defendant and appellant.

Gibson & Kennerson, San Diego, for plaintiffs and respondents.

COUGHLIN, Associate Justice. ^*

Defendant Colony Kitchens ¹ appeals from a judgment against it on an 'Amendment to Complaint', awarding the Phoenix of Hartford Insurance Companies, hereinafter referred to as 'Phoenix', $5,371.12 and awarding Earl K. Robbins $100.00.

The action arose out of an automobile accident caused by the negligence of the driver of a Ford automobile in the course of his employment by Colony Kitchens. The accident occurred on January 18, 1969. Robbins sustained injuries and damages as a result of the accident; was insured under a policy containing an uninsured motorist provision issued by 'Phoenix'; was entitled to recover under this provision for personal injury and property damage sustained in the accident; and was paid $5,371.12 therefor by 'Phoenix', i.e., $339.73 on May 12, 1969 for property damage and $5,031.39 on May 29, 1969 for personal injuries; but was not entitled to recover for loss of use of his automobile under the policy, for which he claimed damage in the sum of $100.

On May 14, 1971 Robbins commenced the action at bench against Colony Kitchens and its employee to recover damages on account of personal injuries, damage to his automobile and loss of its use. He was the sole plaintiff. The complaint showed on its face the action, as to personal injuries, was barred by the statute of limitations, i.e., Code of Civil Procedure section 340(3), because it had not been commenced within one year after the accident occurred.

Colony Kitchens answered; asserted the bar of the statute of limitations; and on November 6, 1972 moved for judgment on the pleadings upon the ground the complaint failed to state a cause of action in that it was barred by Code of Civil Procedure section 340(3). The motion, in effect, was a general demurrer.

On March 8, 1973 the court granted the motion 'with leave to the plaintiff to amend the complaint on file herein within 20 days of the date of this order.'

On March 28, 1973 an 'Amendment to Complaint' was filed adding 'Phoenix' as a party plaintiff under the title 'The Phoenix of Hartford Insurance Companies by and through its assured, Earl K. Robbins', in which it sought recovery of the $5,371.12 paid Robbins, its assured, in May 1969; and Robbins sought recovery of $100 as damages for loss of use of his automobile. 'Phoenix' based its right to recover upon Insurance Code section 11580.2, subdivision (f) renumbered 11580.2, subdivision (g), by statute effective November 10, 1969, which provides: 'The insurer paying a claim under an uninsured motorist endorsement or coverage shall be entitled to be subrogated to the rights of the insured to whom such claim was paid against any persons causing such injury . . . to the extent that payment was made. Such action may be brought within three years from the date that payment was made. . . .'

In its answer to the 'Amendment to Complaint' Colony Kitchens pled the failure of 'Phoenix' to bring its action within three years after payment of the $5,371.12 to Robbins, claiming an insurer seeking recovery under section 11580.2, subdivision (g) must commence its action within three years of the date of payment, otherwise it is barred, and 'Phoenix' did not commence its action until the 'Amendment to Complaint' was filed; and pled the one-year statute of limitations, i.e., Code of Civil Procedure section 340, subdivision 3, as to Robbins' claim for damage for loss of use of his automobile.

The court entered judgment in favor of 'Phoenix' premised on its claimed right to recover under Insurance Code section 11580.2, subdivision (g); and in favor of Robbins premised on the claimed liability of Colony Kitchens for damages caused by the negligence of its employee.

At issue on appeal are two general questions: (1) whether Robbins' action to recover damages for loss of use of his automobile which was commenced by his complaint filed May 14, 1971 and renewed by his 'Amendment to Complaint' filed March 28, 1973 is barred by Code of Civil Procedure section 340(3); and (2) whether 'Phoenix' may recover reimbursement of its uninsured motorist payments to Robbins under the 'Amendment to Complaint' joining it as a party plaintiff in the Robbins action and purportedly stating a cause of action pursuant to Insurance Code section 11580.2(g).

We conclude although Robbins' action to recover damages on account of personal injuries in the accident is barred by Code of Civil Procedure section 340(3), i.e., the one-year statute of limitations, his action to recover damages for loss of use of his automobile is not barred by that section but is governed by Code of Civil Procedure section 338 (3), i.e., the three-year statute of limitations, and was commenced within that three-year period. The judgment as to Robbins should be affirmed.

We also conclude 'Phoenix' may not recover under the 'Amendment to Complaint' upon its statutorily conferred claim for reimbursement because its action thereunder was not brought within the three-year period prescribed by the statute; and, in any event, it had no right to file an 'Amendment to Complaint' in the action commenced by Robbins.

The original complaint by Robbins stated a cause of action for damages for injuries to his person, damage to his automobile, and loss of use of his automobile which he sustained as the result of the negligence of Colony Kitchens' employee. It was a common law tort action. The 'Amendment to Complaint' attempted to bring into the action a new party, i.e., 'Phoenix' and purportedly stated a new cause of action in its favor premised on Insurance Code section 11580.2(g). It did not purport to state a cause of action based on the common law and equitable general rule an insurer is subrogated to the rights of an insured against a tortfeasor causing damage for which the insurer reimbursed the insured (gen., see Anheuser-Busch, Inc. v. Starley, 28 Cal.2d 347, 349, 170 P.2d 448; Offer v. Superior Court, 194 Cal. 114, 117, 118--122, 228 P. 11; Clark v. Burns Hammam Baths, 71 Cal.App. 571, 575, 236 P. 152). In Interinsurance Exchange v. Harmon, 266 Cal.App.2d 758, 761, 72 Cal.Rptr. 352, the court held this general rule did not apply to claims for personal injuries. In any event, any action by 'Phoenix' as an insurer-subrogee of the claim of its insured, Robbins, premised on the general rule, would have been subject to the same defenses applicable to the action by Robbins upon that claim (Liberty Mut. Ins. Co. v. Fales, 8 Cal.3d 712, 717, 106 Cal.Rptr. 21, 505 P.2d 213; Iusi v. City Title Ins. Co., 213 Cal.App.2d 582, 588, 28 Cal.Rptr. 893; Howell v. Dowling, 52 Cal.App.2d 487, 498, 126 P.2d 630) and, to the extent based on a claim for personal injuries, would have been barred by the one-year statute of limitations which barred Robbins' action thereon. However, 'Phoenix' purported to state a cause of action under Insurance Code section 11580.2(g) by which the Legislature intended to confer upon an insurer paying a claim under an uninsured motorist provision the right to be subrogated to the rights of the insured against any person causing the injury or damage for which such payment was made, and to bring an action upon its subrogated rights within three years from the date of payment of the insured's claim against the insurer. In substance, the statute confers on the insurer a right of subrogation with an extended limitation period to protect that right (Liberty Mut. Ins. Co. v. Fales, supra, 8 Cal.3d 712, 716, 106 Cal.Rptr. 21, 505 P.2d 213; Interinsurance Exchange v. Harmon, supra, 266 Cal.App.2d 758, 761, 72 Cal.Rptr. 352; gen., see Limited Mutual etc. Ins. Co. v. Billings, 74 Cal.App.2d 881, 883, 169 P.2d 673). It follows, an insurer's action upon the subrogated rights conferred by the statute must be commenced within three years after its payment of the claim of the insured under the uninsured motorist provision, otherwise the action is barred and a complaint showing such does not state a cause of action. In Liberty Mut. Ins. Co. v. Fales, supra, 8 Cal.3d 712, 716, 106 Cal.Rptr. 21, 23, 505 P.2d 213, 215, the court referred to the subrogation rights of an insurer under Insurance Code section 11580.2(g) as 'the subrogation rights Provided by that section.' (Italics ours.) The rights are statutory, not common law rights.

A cause of action premised on section 11580.2(g) is a cause of action in favor of the insurer; is not a cause of action in favor of the insured; must be brought by the insurer; and may not be brought by the insured.

The designation of 'Phoenix' as a party plaintiff in the 'Amendment to Complaint' under the title 'The Phoenix of Hartford Insurance Companies by the through its assured, Earl K. Robbins' was a tactic intended to support a contention 'Phoenix' was not a new party to the action commenced by Robbins when he filed his original complaint, and the cause of action under Insurance Code section 11580.2(g) in the 'Amendment to Complaint' related back to the cause of action in the original complaint. In support of its...