17-CIV-03893 STATE FARM GENERAL INSURANCE COMPANY vs. ANDY S. MAR, et al.

STATE FARM GENERAL INSURANCE COMPANY CURTIS L. METZGAR

ANDY MAR PRO/PER

4. ANDY MAR’S HEARING ON DEMURRER TO COMPLAINT BY PLAINTIFF STATE FARM GENERAL INSURANCE COMPANY FOR DECLARATORY RELIEF

TENTATIVE RULING:

In light of the Court’s order that this matter be stayed, Defendant Mar’s demurrer is off calendar.

5. ANDY MAR’S MOTION TO STAY ALL PROCEEDINGS

TENTATIVE RULING:

The motion to stay this action pending the resolution of the Underlying Action (CIV 537740) is granted. All matters in this action are stayed pending resolution of the Underlying Action or until this court orders, upon a showing of good cause, that the stay should be lifted.

In the Underlying Action, the question of whether Defendant Mar was acting in the course and scope of employment is relevant only to the issue of whether his employer, Defendant County of San Mateo, could be jointly and severally liable under respondeat superior. The issue of course and scope of employment does not affect Defendant Mar’s personal liability; it affects only whether another defendant (the County) will be sharing responsibility. Therefore, Defendant Mar is asserting that he was at all times acting within the scope of his employment.

In the Declaratory Relief action, Defendant Mar can prevail only if he is found not to have been acting within a business pursuit. As State Farm points out, the business pursuits exclusion is broader than an employment exclusion, which generally would include a course and scope limitation. (West American Ins. Co. v. California Mutual Ins. Co (1987) 195 Cal.App.3d 314.) If Defendant Mar admits that he was acting within the course and scope of employment (as he argues in the underlying action), then he essentially admits that he was acting within a business pursuit (occupation). In that instance, State Farm prevails against him in the Declaratory Relief action.

It is near impossible to see how Defendant Mar can act in his best interests in both actions simultaneously. Since the underlying action is set for trial on January 22, 2018, the present Declaratory Relief action should be stayed pending the outcome.