Shaolian v. Safeco Ins. Co., B118385

• Decision Date: 09 April 1999
• Docket Number: No. B118385,B118385
• Citation: 71 Cal.App.4th 268,83 Cal.Rptr.2d 702
• Parties: , 99 Cal. Daily Op. Serv. 2631, 1999 Daily Journal D.A.R. 3413 Mansour SHAOLIAN, et al., Plaintiffs and Appellants, v. SAFECO INSURANCE COMPANY, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 702

83 Cal.Rptr.2d 702

71 Cal.App.4th 268, 99 Cal. Daily Op. Serv. 2631,

1999 Daily Journal D.A.R. 3413

Mansour SHAOLIAN, et al., Plaintiffs and Appellants, v. SAFECO INSURANCE COMPANY, et al., Defendants and Respondents.

No. B118385.

Court of Appeal, Second District, Division 5, California.

April 9, 1999.

Rehearing Denied May 5, 1999.

Wasserman, Comden & Casselman and Gary S. Soter, Tarzana, for Plaintiffs and Appellants.

LaTorraca and Goettsch, Raymond H. Goettsch and Teresa Cho, Los Angeles, for Defendants and Respondents.

GODOY PEREZ, J.

Plaintiff Mehdi Sina-Khadiv and plaintiffs Mansour Shaolian and Rahel Shaolian, both in their individual capacities and as successors in interest to Ramtin Shaolian, appeal from the order sustaining without leave to amend the demurrers of defendant Safeco Insurance Company and the concomitant order dismissing the first amended complaint as to Safeco. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On the night of June 9, 1995, while walking in the parking lot of a West Hills shopping mall, Ramtin Shaolian (Ramtin) was killed and plaintiff and appellant Mehdi Sina-Khadiv (Sina-Khadiv) was injured by gunfire coming from a passing car. Several persons were inside that car, including defendant Jennifer Akbar. A complaint was eventually filed against those involved in the shooting by Sina-Khadiv and by Ramtin's parents, plaintiffs and appellants Mansour and Rahel Shaolian (the Shaolians). ¹

Appellants later determined that Jennifer Akbar's parents, Jim and Peggy Akbar (the Akbars), were covered under a homeowners insurance policy provided by defendant and respondent Safeco Insurance Company (Safeco). At issue here is a medical coverage provision which obligated Safeco to pay the medical or funeral expenses incurred by third parties who were injured in connection with the insureds' activities. When appellants demanded payment for such expenses, Safeco refused, contending that its obligation to pay was conditioned on a finding that Jennifer Akbar had been at fault in the shootings. In their operative first amended complaint, appellants sued Safeco in the seventh, eighth and ninth causes of action respectively, for breach of contract, breach of the implied covenant of good faith and fair dealing, and on behalf of the general public for Safeco's alleged unfair business practices in connection with handling their claim and others. (Bus. & Prof.Code, § 17200.)

Safeco demurred to those three causes of action on several grounds, the dispositive one for our purposes being that appellants lacked standing to sue until Jennifer Akbar's liability for the shootings had been adjudicated against her. On November 12, 1997, the trial court sustained Safeco's demurrers without leave to amend and an order dismissing the first amended complaint as to Safeco was entered December 3, 1997. Appellants' later motion for reconsideration was denied December 22, 1997. This timely appeal followed.

STANDARD OF REVIEW

In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiff-appellant. Regardless of the label attached to the cause of action, we must examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. Reversible error is committed if the facts alleged show entitlement to relief under any possible legal theory. (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1119-1120, 66 Cal.Rptr.2d 337.)

We will not, however, assume the truth of contentions, deductions or conclusions of fact or law and may disregard allegations that are contrary to the law or to a fact of which

                judicial notice may be taken.  When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.  (Code Civ. Proc., § 430.30, subd.  (a);  Cochran v. Cochran, supra, 56 Cal.App.4th at p. 1120, 66 Cal.Rptr.2d 337.)   We may take judicial notice of the records of a California court.  (Evid.Code, § 452, subd.  (d).)  We must take judicial notice of this state's decisional and statutory law.  (Evid.Code, § 451, subd.  (a).)
                

DISCUSSION

Because the insurer's duties flow to its insured alone, a third party claimant may not bring a direct action against an insurance company. As a general rule, a third party may directly sue an insurer only when there has been an assignment of rights by, or a final judgment against, the insured. (Ins.Code, § 11580, subd. (b)(2); Harper v. Wausau Ins. Co. (1997) 56 Cal.App.4th 1079, 1086, 66 Cal.Rptr.2d 64, hereafter Harper.) We held in Harper that the medical coverage provisions of a commercial general liability policy conferred third-party beneficiary rights upon someone injured on the insured's property, thus permitting that third party to directly sue the insurer when it refused to pay those benefits. Appellants contend that Harper applies here and mandates reversal of the demurrer. Safeco contends that the terms of its medical coverage provision are sufficiently different from those at issue in Harper as to make that decision both distinguishable and inapplicable.

The liability policy at issue in Harper stated that the insurer would pay medical expenses for bodily injury caused by an accident on or adjacent to the insured's premises or because of its operations "regardless of fault." A woman who slipped and fell on the insured's premises sued the insurer directly under that provision. The trial court granted the insurer summary judgment under the general rule precluding direct actions against insurers by third-party claimants. Applying general contract law principles, we held that the plaintiff was a third-party beneficiary of the medical coverage provision who was entitled to sue directly to enforce her rights. (Id. at pp. 1086-1091, 66 Cal.Rptr.2d 64.)

In doing so, we discussed in general the nature and purposes of medical coverage provisions contained in liability policies, quoting from one insurance law commentator that it was "... 'a form of minimal group accident insurance provided at minimal cost with a named insured as the entity through whom the coverage is issued.... [p] Generally, medical payment clauses are considered to constitute separate accident insurance coverage. Such coverage is divisible from the remainder of the policy, and creates a direct liability to the contemplated beneficiaries. The purpose is to grant peace of mind and create a fund for the payment of medical services so that those injured will not necessarily be contemplating how to impose liability upon the insured. And, with this in mind, a broad and liberal interpretation will be given. [p] Such provision is the separate obligation of the insurer, independent of its obligation to pay sums of money as damages under the liability features of the contract. It has no relevance to the financial responsibility law. Nor is liability for such payment in any way dependent upon negligence of the insured....' [Citation.]" (Harper, supra, 56 Cal.App.4th at pp. 1089-1090, 66 Cal.Rptr.2d 64, quoting 8A, Appleman & Appleman, Insurance Law and Practice (1981) § 4902, pp. 228-230, fns. omitted, hereafter Appleman.)

Relying heavily on the above quoted portion of Harper, appellants contend that the medical coverage provision in the Akbars' policy conferred upon them third-party beneficiary status. Appellants' analysis fails to consider the key distinguishing factor between the medical coverage provision at issue in Harper and the one before us now--that in Harper, the insurer was expressly obligated to pay a third-person's medical expenses without regard to fault.

Because the coverage provision in Harper "specifically states the defendant will pay 'without regard to fault,' " we held that the provision was not one for liability but was instead "a direct and separate obligation in the policy to pay the medical expenses of persons injured on its insured's property."

That made the plaintiff an intended third-party beneficiary of the medical coverage provision as a "member of the class of persons protected under the policy." (Harper, supra, 56 Cal.App.4th at p. 1091, 66 Cal.Rptr.2d 64.)

In so holding, we also quoted Appleman for the proposition that the insurer " '... may limit the class of persons to whom such coverage is applicable.' [Citation.]" (Harper, supra, 56 Cal.App.4th at p. 1091, 66 Cal.Rptr.2d 64, quoting Appleman, supra, § 4902.5, pp. 232-233.) Not quoted by us at the time was a portion of the same paragraph in which Appleman noted that the "insurer may also limit coverage so as to make it inapplicable to activities away from the premises or as to persons not on the premises, if not injured by an act of the insured." (Appleman, supra, § 4902.5, p. 233.) That is precisely the case with the medical coverage provision in the Akbars' policy with Safeco, at least in regard to injuries occurring away from the Akbars' home.

The medical coverage provision in the Akbars' policy states: "We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury.... [T]his coverage applies only: [p] 1. to a person on the insured location with the permission of an insured; or [p] 2. to a person off the insured location, if the bodily injury: [p] a. arises out of a condition on the insured location or the ways immediately adjoining; [p] b. is caused by the activities of an insured; [p] c. is caused by a residence employee in the course of the residence employee's employment by an insured; or [p] d. is caused by an animal owned by or in the care of an insured." No reported California decisions have construed such language in the context of medical coverage provisions, but two sister-state decisions have considered the rights of...