DEMAND FOR A DECLARATION OF POLICY LIMIT(S)

XXX

XXX

XXX

CELL TELEPHONE: XXX

FAX: XXX

 

PLAINTIFF IN PROPER

 

SUPERIOR COURT OF THE STATE OF XXX

FOR COUNTY OF XXX – CENTRAL DISTRICT

 

XXX

,

Plaintiff

vs.

XXX, as attorney for deceased Defendant XXXX

Defendant

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 Case No.: No. XXX

 

Judge:  Honorable Audra Mori

Department: 31

 

DEMAND FOR A DECLARATION OF POLICY LIMIT(S)

 

 

Complaint filed: XXX

Trial Date: XXX

 

PROPOUNDING PARTY:     Plaintiff XXX

RESPONDING PARTY:      XXXX, as attorney for deceased Defendant

XXX,

COMES NOW plaintiff XXX, proceeding pro se, and demands for the Defendant’s Declaration of Available Policies and the limits thsssereof. In support of the aforesaid request, Plaintiff states as follows:

FACTUAL BACKGROUND

On or about XXX, Plaintiff filed a Complaint against the Defendant.

On or about XXXX, the Defendant filed a Response to Plaintiff’s Complaint, denying each and every allegation in Plaintiff’s Complaint. On the same date, the Defendant sent Plaintiff a Demand for Exchange of Expert Witness Information. In the said Demand, the Defendant requested that both parties send to the other party a list of the expert witnesses, and any document and/or report made by the said expert witnesses.

On or about XXX, Plaintiff, through Plaintiff’s former Attorney, filed a “Request for Prior Pleadings” to the Defendant.

On or about XXX, the Plaintiff responded to Defendant’s Form Interrogatories Set One. In the said Response, Plaintiff duly responded with specificity to each and every of Defendant’s interrogatories.

On XXXX, the Plaintiff sent the Defendant a Request for Production of Documents Set Two. Notably, the Plaintiff requested the Defendant to produce all documents and other tangible things that support Defendant’s denial or special or affirmative defenses.

On or about XXX, the Defendant sent the Plaintiff Objections to Plaintiff’s Request for Production of Documents. In the objection, the Defendant alleged that the Plaintiff’s request seeks to obtain privileged information and invade the attorney-client and work product privileges. Defendant also alleged that the Plaintiff’s request was premature and that Defendant’s affirmative defenses were made as a matter of right.

On XXX, the Plaintiff’s former Attorney sent a Meet and Confer letter to the Defendant. However, Defendant has since failed to meaningfully meet and confer.

Plaintiff then filed a Motion to Compel the Defendant to respond to Plaintiff’s Request for Production of Documents Set Two.

On or about XXX, Dustin Lee, Defendant’s attorney, filed a Stipulation & order to proceed against estate and limit Recovery to insurance policy Limits. In the said document, the Defendant alleged that Defendant Toby Wank was insured under an automobile liability policy with State Farm Mutual Automobile Insurance Company with a per person limit of $250,000. The document further stated that the policy provided coverage for the subject claim in the event Toby Wank was found wholly or partially responsible for the incident.

Interestingly, the Defendants notified the Plaintiff that Defendant Toby Wank had died on or about January 9, 2021, about a year later when the proposed Stipulation was being sent to Plaintiff.

In that regard, the proposed stipulation provided that the matter be held against the Defendant’s estate pursuant to Probate Code section 550, et seq, and that the recovery of any claim under the action be limited to the said policy limit of $250,000.

However, the total damages suffered by Plaintiff surpass the said policy limit. The Plaintiff must undergo surgery scheduled in May 2022, which Cost $170,000. Consequential to the injury, Plaintiff can only sleep for between 2 to 4 hours every night. His ear rings all day from cervical instability; and he has neck, shoulder and other roaming pains. Notably, the uncorrected space changes in Plaintiff’s Cervical vertebrae from the tendon tear from the dorsal spinous process of T1, which allows Cervical Vertebrae 1-7 to fall forward into the spinal canal. The cervical instability cannot be relieved without an advanced neuro/orthopedic surgery. Notably, as a result of the cervical instability, Plaintiff has current chronic problems including:

  1. Roaming pains without warning;
  2. Severe visual blurriness for 2 years now;
  • Tinnitis for 3 years now;
  1. Dizziness,
  2. Vertigo,
  3. Balance difficulty (having to take a step or fall to the right side);
  • Swallowing difficulties (unable to swallow food or pills – associated to severe pain on swallowing, peristalsis disturbance and immotile esophagus);
  • Consistent paresthesia of upper extremity causing dropping of objects, and sleep disturbances;
  1. Feeling of sudden loss of consciousness;
  2. Strange outer body experiences;
  3. Severe anxiety attacks; and
  • Cognitive impairments.

The Plaintiff had also spent $80,000 in incidental medical expenses, partially out of Plaintiff’s own pocket. It is also worth noting that the Insurance Neurologist is aware of the Plaintiff’s injuries. Plaintiff’s injuries have also borne a heavy toll on the patenting and manufacturing of Plaintiff’s dental products.

On or about February 1, 2022, the Defendant’s attorney filed a Motion to Dismiss Plaintiff’s Complaint. The Defendant’s attorney avers that Plaintiff has not exhausted two options. First Defendant’s attorney alleges that Plaintiff has failed to continue the action against the Defendant’s personal representative. Defendant argues that Plaintiff’s Complaint should reflect that the Plaintiff is suing the Estate of the Defendant. Next, Defendant’s attorney alleged that Plaintiff failed to continue the action pursuant to Probate Court section 550, which limits recovery to available insurance proceeds. Accordingly, Defendant’s attorney maintains that Plaintiff includes the Personal Representative of Defendant’s Estate, and files the claim in compliance with section 9390. Defendant’s attorney also alleges that Plaintiff’s recovery should be limited for alleged failure to effect the said changes on Plaintiff’s Complaint.

 

 

ARGUMENTS

  1. The insurer should disclose policy limits

Under California law, an insurance company has a duty “to make reasonable efforts” to settle lawsuits against its insured. PPG Industries, Inc. v. TransAmerica Ins. Co.(1999) 20 Cal.4th 310, 312. The duty to settle extends beyond the coverage terms of the policy. The California Supreme Court has held in that regard that the insurance company has a duty “to settle in an appropriate case although the express terms of the policy do not impose such a duty.” Comunale v. Traders & General Insurance Co. (1958) 50 Cal.2d 645.  It is not reasonable or good faith conduct for an insurance company to refuse to settle based on a “no coverage position.”  Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 531.

It is trite law that an insurer’s refusal to disclose policy limits in advance of litigation may be an evidence of bad faith. Boicourt v. Amex Assurance Company, 78 Cal. App. 4th 1380 (2000). In the words of the court, “a liability insurer ‘”is playing with fire” when it refuses to disclose policy limits. Id. Further, the insurer can be sanctioned for failure to provide policy limits. According to Aguilar v. Gostischef, 220 Cal.App.4th 475, 2013 Cal. App. LEXIS 816, 2013 WL 5592976 (Oct. 11, 2013), where an injured party rationally believes an insurer may be liable for excess judgment, and the insurer refuses to provide this third-party with the amount of policy limits when requested prior to litigation, a section 998 offer above policy limits may open up the policy to an excess judgment.

In light of the foregoing, Plaintiff makes this demand for the policy limits of Defendant Toby Wank. Plaintiff maintains that the claims alleged in the Complaint are covered in the policy. Next, the claims made are fair and reasonable. The Insurer is aware of the harm and/or injury suffered by the Plaintiff. Notably, the insurer has had access to Plaintiff’s medical records, accident report, and bills before filed in court. Accordingly, Plaintiff’s case has a high likelihood of success, and award of damages in excess of the alleged policy limits.

 

  1. Granting Defendant’s Motion to Dismiss would amount to an abuse of discretion

The trial court’s exercise of power under Code of Civil Procedure section 128, subdivision(a)(8), is reviewed for abuse of discretion. See In re Joshua G. (2005) 129 Cal.App.4th 189, 199; Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035.) The exercise of a trial court’s discretion should be disturbed if there has been a miscarriage of justice. Denham v. Superior Court (1970) 2 Cal.3d 557, 566.

In the instant action, Plaintiff avers that granting Defendant’s Motion would amount to an abuse of the Court’s discretion. Notably, Plaintiff is still in the process of demanding a full declaration of policies from the insurer. And it was after the Plaintiff obtained the said declaration that Plaintiff would proceed to amend the Complaint accordingly. Therefore, Plaintiff avers that the Defendant’s Motion is premature. It is filed too early before Plaintiff has the opportunity to obtain full information and knowledge on the Policy limits. Besides, the Defendant’s attorney approaches this Court with unclean hands. The Plaintiff was only informed of the Defendant’s death about a year after her demise. Plaintiff avers that this conduct is malicious and/or unjust. Plaintiff therefore requests this Court to dismiss Defendant’s Motion to Dismiss.

CONCLUSION

WHEREFORE, Plaintiff makes the following demands:

  1. The Insurer makes a sworn declaration of ALL applicable policies relevant to the subject matter herein;
  2. A declaration of all available policies (e.g. Umbrella Policy, Excess Policy);
  • The policy limit(s) that Defendant Toby Wank was subjected to;
  1. The Court issues an early monetary judgment in full, and in excess of the alleged policy limit, in consideration of Plaintiff’s far-reaching injuries and/or expenses;
  2. The Court denies Defendant’s Motion to Dismiss;
  3. The Court continues any pending date until the Plaintiff gets the declaration of all policies requested herein, after which Plaintiff will amend the Complaint accordingly;
  • Any other relief this Court deems just and proper in the circumstances.

 

Respectfully submitted,

 

DATED:XXXX

 

Respectfully submitted,

 

SEAN RASHTI

PROPER

 

 

 

CERTIFICATE OF SERVICE

I hereby certify that on XXX, a copy of the foregoing document has been sent to the Defendant in the following address:

____via U.S. MAIL

____via OVERNIGHT DELIVERY SERVICE

____via FACSIMILE

__x_ via E-MAIL

 

XXXX

XXX

Telephone: XXXX

E-Mail Address: XXXX

 

Dated: XXX

 

 

_________________________________

xxxx