Republic Indem. Co. v. Maier Brewing Co.

• Citation: 249 Cal.App.2d 495,57 Cal.Rptr. 670
• Court: California Court of Appeals Court of Appeals
• Decision Date: 16 March 1967
• Parties: REPUBLIC INDEMNITY COMPANY, Plaintiff and Respondent, v. MAIER BREWING COMPANY, a corporation, Defendant and Appellant. Civ. 30243.

Page 670

57 Cal.Rptr. 670

249 Cal.App.2d 495

REPUBLIC INDEMNITY COMPANY, Plaintiff and Respondent, v. MAIER BREWING COMPANY, a corporation, Defendant and Appellant.

Civ. 30243.

Court of Appeal, Second District, Division 2, California.

March 16, 1967.

Rehearing Denied April 11, 1967.

Hearing Denied May 10, 1967.

James J. Arditto, Los Angeles, and Daniel B. Condon, Pasadena, for appellant.

Wyman, Finell & Rothman and Alan D. Croll, Beverly Hills, for respondent.

ROTH, Presiding Justice.

Maier Brewing Company (Maier) appeals from a judgment in favor of Republic Indemnity Company (Republic) for $7,072.52 plus interest from May 1, 1962 for premiums due Republic on a workmen's compensation insurance policy issued to Maier by Republic.

On or about June 1, 1961, the Raab Agency (Raab), general agent of Republic, accepted an application from Maier for workmen's compensation insurance. Maier told Raab that because of what it deemed a misunderstanding with the Rating Bureau, its rates for workmen's compensation coverage had gone up sharply and unless Raab could get it coverage at a low rate, Maier would become a self-insurer. Raab assured Maier that it would do its best to get a rate of $1.33 per hundred for the brewery.

On July 1, 1961, Republic issued an insurance policy to Maier, which included as required by law, the provision '* * * that the rates therein were tentative, subject to any experience and/or schedule rating as promulgated by the California Inspection Rating Bureau * * *.' Thereafter, Republic billed Maier at rates higher than $1.33; Maier paid only at the $1.33 rate and continued to complain to Raab over the difference. Raab continued to try and get the rate fixed at $1.33.

On March 14, 1962, California Inspection Rating Bureau issued a final 'schedule rating modification' providing for a higher rate for Maier's insurance coverage. On April 16, 1962, Maier canceled its policy with Republic. On May 7, 1962 Raab sued Maier for certain portions of premiums owing which Maier had refused to pay on the workmen's compensation policy issued by Republic, and on two other fire policies issued by other companies neither of which is now relevant to this litigation.

On November 25, 1964, Raab, predicated upon sections 473 and 385 of the Code of Civil Procedure, moved for leave to file a first amended complaint substituting Republic as plaintiff for Raab and omitting all allegations in respect of the two fire policies. Raab averred in support of its motion that it had assigned to Republic all Raab's rights to the premiums owed by Maier to Republic. The motion to substitute plaintiffs was granted, despite Maier's objections.

Maier, relying on Nisbet v. Rhinehart, 2 Cal.2d 477, 481, 482, 42 P.2d 71, argues that Raab could not commence the action in its name to recover 'unless it has paid the premiums to the insurer, or * * * become personally liable to the insurer for the premium.' Maier contended that Raab had not paid the premiums and was not responsible for them; Raab therefore had no claim against Maier when the suit was originally filed in 1962, it had nothing to assign, and Republic, to avoid the two-year statute of limitations for oral contracts, had itself substituted instead of filing a new suit in its own name.

The record shows that respondent introduced a contract between respondent and Raab as Exhibit 14, calling specific attention to paragraph 5 thereof and the fact that Raab was released from '* * * Any responsibility to collect premiums * * *.' (Emphasis added.) This was sufficient evidence to show Raab's liability for the court to find that Raab had a liability for the premiums. The doctrine of Nisbet has been met.

Maier contends too that there is no valid assignment of the Raab claim, even if it had one.

A letter dated February 5, 1964 is in evidence. It is from Raab to its attorneys who also represented Republic. While not a model of a direct assignment, the letter makes clear that if releases are obtained as to Raab's liability for Maier's unpaid premiums to Republic, Raab specifically waives any claim it may have to continue the litigation against Maier. Thereafter, with the consent and aid of Republic, the attorneys for Raab and Republic completed the substitution of parties' plaintiff. The conduct of Raab and Republic, through their joint counsel and a declaration in support of the motion to substitute parties' plaintiff by the chairman of the board of Republic, averring that plaintiff assigned to Republic all its right, title and interest in the policy and to the premiums pertaining to the policy, supports the finding: '8. After the commencement of the action herein, THE RAAB AGENCY has duly and validly assigned to the plaintiff, REPUBLIC INDEMNITY COMPANY OF AMERICA all of THE RAAB AGENCY's right, title, and interest in and to said policy and all of THE RAAB AGENCY's right, title and interest in and to the premiums due on said policy.' In Anglo California National Bank v. Kidd, 58 Cal.App.2d 651, 655--656, 137 P.2d 460, recently reiterated in California Pacific Title v. Moore, 229 Cal.App.2d 114, 117, 40 Cal.Rptr. 61, it is held the Form of an assignment is not important so long as the Intention of the assignor is ascertainable. The intention of Raab and Republic, as manifested by the record is crystal clear and equally important is the fact that although clumsily expressed, the assignment was acted upon as if it had been worded by an expert draftsman.

Maier contends too that Raab had orally agreed to write the workmen's compensation policy at a premium of $1.33 per $100. When Maier told Raab that if he did not, he planned to become a self-assured, Raab contended that it agreed only to use its best efforts to maintain that rate. The trial court found from ample evidence:

'10. Plaintiff agreed to use its best efforts to secure, for defendant, as low a rate as possible on said policy.

'11. Plaintiff did use its best effort to secure as low a...