Rowell v. Transpacific Life Ins. Co.
| Decision Date | 06 July 1979 |
| Citation | 94 Cal.App.3d 818,156 Cal.Rptr. 679 |
| Parties | George P. ROWELL, Plaintiff and Respondent, v. TransPACIFIC LIFE INSURANCE COMPANY and Ruth Citron, Defendants and Appellants. Civ. 54979. |
| Court | California Court of Appeals Court of Appeals |
Adams, Duque & Hazeltine, James L. Nolan, and Robert W. Fischer, Jr., Los Angeles, for defendants and appellants.
Breidenbach, Swainston, Yokaitis & Crispo, Edwin A. Oster, Lerer & Hobart, and G. Dana Hobart, Los Angeles, for plaintiff and respondent.
This is an appeal from an order denying defendants leave to file a cross-complaint to name new parties to an action. The proposed cross-complaint asserts theories of proportionate equitable indemnity pursuant to American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899. While the case at bar potentially involves the novel issue of the effect of the still developing pleading rules of proportionate equitable indemnity upon the principle of California procedure that holds that generally an order denying leave to file a cross-complaint against new parties is not appealable (Miller v. Stein (1956) 145 Cal.App.2d 381, 385-386, 302 P.2d 403; but cf. Keenan v. Dean (1955) 134 Cal.App.2d 189, 285 P.2d 300), the issue is not ripe. The proposed cross-complaint does not state a cause of action. Resolution of the issue of appealability must await a pleading which is legally sufficient.
Addressing the issue of the sufficiency of the cross-complaint, we conclude that the rationale of Held v. Arant (1977) 67 Cal.App.3d 748, 134 Cal.Rptr. 422 and Gibson, Dunn & Crutcher v. Superior Court (1979) --- Cal.App.3d ---, 156 Cal.Rptr. 326 supports a trial court ruling denying leave to file the pleading.
Through his attorneys, Harvey L. Lerer and G. Dana Hobart, George Rowell sued TransPacific Life Insurance Company and Ruth Citron for misconduct in delaying payment of a disability insurance policy. Rowell's complaint includes factual allegations supporting liability on theories of tortified breach of contract for violation of an implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and negligent infliction of emotional distress.
TransPacific and Citron answered the complaint. After having filed their answers, they moved for leave to file a cross-complaint against Lerer, Hobart, and attorneys associated with them. The proposed pleading asserts in essence that dilatory conduct of Messrs. Lerer et al. in representation of Rowell's claim for disability benefits from TransPacific and their failure as counsel to present proper supporting documentation caused the delay of payment. Misconduct by Rowell's attorneys which induced TransPacific to waive its rights to rescind the Rowell policy is also alleged.
The trial court denied leave to file the proposed cross-complaint. This appeal followed.
On appeal, TransPacific and Citron do not assert error related to the allegation of the proposed cross-complaint with respect to conduct inducing waiver of a right to rescind the policy. They limit their contentions to the proposition that the rule of American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, authorizes the cross-complaint.
The principles of American Motorcycle are not applicable to the case at bench.
The proposed cross-complaint seeks to impose liability upon plaintiff's counsel who represented him in his action against defendants-purported cross-complainants on two theories; one, that in some...
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