Filed 4/28/20 Poirier v. Pacific Property and Casualty Co. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOSEPH POIRIER,

Plaintiff and Appellant,

v.

PACIFIC PROPERTY AND CASUALTY COMPANY et al.,

Defendants and Respondents.

D075285

(Super. Ct. No.

37-2016-00037928-CU-BC-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

Joseph Poirier, in pro. per., for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker and Peter M. Hughes, Kelly A. Van Nort for Defendants and Respondents.

Appellant Joseph Poirier was injured in an auto accident, and afterwards filed a claim against the driver, who had liability insurance. Poirier had an uninsured motorists (UIM) policy with respondents Pacific Property and Casualty Company and American National Property and Casualty Companies (collectively respondents), and he filed a claim with them. The policy provided that respondents were not required to pay Poirier’s claim until he had exhausted his liability insurance claims, and if a dispute arose about additional damages that respondents were required to pay, it would be resolved in arbitration.

After Poirier received the policy limit on his liability claim against the driver, he asserted that respondents owed him additional money in damages. Respondents disagreed and the matter was submitted to arbitration. The arbitrator awarded Poirier less than he had sought from respondents. Poirier sued respondents in superior court, alleging causes of action for breach of insurance contract, breach of the covenant of good faith and fair dealing, and violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, section 7200). Respondents successfully moved for summary judgment, arguing any delay in resolving Poirier’s claim was due to a genuine dispute regarding coverage.

Poirier appeals. We conclude he has forfeited his claims, and therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the admissible evidence in the light most favorable to Poirier, the party opposing the summary judgment. (See Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52.)

I. Investigation of Poirier’s Claim

In November 2012, a driver crashed into Poirier’s vehicle. That driver was insured by United Services Automobile Association (USAA) for up to $50,000. Poirier made a claim against him for liability. Poirier claimed the accident caused him to suffer a lumbar strain, pancreatitis and possible worsening of his diabetes.

Poirier notified respondents of the accident shortly after it occurred, and respondents acknowledged receipt of the notice. Respondents’ UIM policy had a coverage limit of $250,000 per person and $500,000 per accident; however, the policy specifically provides that respondents shall pay a claimant “only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” It further provides: “Determination whether an insured person is legally entitled to recover damages or the amount of damages shall be made by agreement between that person and us. If no agreement is reached, the decision will be made by arbitration.”

In February 2013, despite the fact Poirier’s claim with USAA was still unresolved, respondents requested that Poirier provide information and documentation to help them investigate his potential UIM claim.

On July 10, 2013, USAA settled Poirier’s personal injury claim for $50,000. Poirier demanded respondents settle his UIM claim for $200,000 by July 31, 2013. Respondents retained a doctor who reviewed Poirier’s medical records and concluded the accident had caused his lumbar strain, abdominal pain, and mild transient pancreatitis, but it had not caused or exacerbated his diabetes.

On July 25, 2013, Poirier increased his settlement demand to $250,000 and demanded that respondents submit to pre-arbitration mediation; however, respondents refused to settle, concluding the USAA settlement had made Poirier whole.

In August 2013, Poirier requested that respondents have their endocrinologist review his medical records. Although they agreed to those requests, respondents required Poirier to authorize his doctors to release his pre-accident medical records, which they also subpoenaed.

In December 2013, Poirier declined respondents’ request to review his medical records, which he argued were from “many years ago” and thus irrelevant.

In December 2013, respondents’ endocrinologist opined that Poirier’s pancreatitis, but not his diabetes, was potentially caused by the accident.

In January 2015, Poirier’s doctor stated in a report that the accident caused a “significant aggravation” of Poirier’s back problems.

In March 2015, respondents offered and Poirier rejected $25,000 to settle the UIM claim. In August 2015, he rejected respondents’ $65,000 offer. At some point, Poirier requested from respondents an advance of $90,000 on a potential settlement. In September 2015, he lowered the request to $5,000, and respondents immediately authorized it.

In November 2015, an arbitrator ruled Poirier was deceitful in his testimony, he lacked credibility, and he had perjured himself. She also concluded Poirier’s treating physicians had based their opinions on his fraudulent medical history. The arbitrator concluded that, at best, the accident had caused Poirier to suffer back injury and the onset of pancreatitis, but it had not worsened his diabetes. Poirier had claimed more than $100,000 in lost earnings, but the arbitrator rejected that and instead valued his lost earnings at $6,492. She awarded Poirier $50,000 in UIM benefits.

II. Poirier’s Complaint

Poirier filed his complaint in October 2016. In his February 2017 first amended complaint, he alleged causes of action for breach of insurance contract, breach of the covenant of good faith and fair dealing, and violation of the UCL. Poirier alleged respondents “breached the [insurance] policy by failing to conduct a timely and thorough investigation to determine and pay policy benefits due to [him]; . . . denying the claim without conducting a complete and thorough investigation[;] hiring a medical doctor on a rush basis[;] and providing incomplete and inaccurate questions to have answered with the intent of having the doctor support [respondents’] wrongful denial of benefits.” (Some capitalization omitted.)

Poirier alleged that respondents’ conduct and bad faith denial of benefits required him to hire an attorney and deprived him of benefits due him under the policy; moreover, he incurred expenses for discovery and arbitration, and was “denied the use and benefits of the [arbitrator’s] award.”

Poirier alleged the policy’s implied covenant of good faith and fair dealing required respondents not to injure his right to receive the benefits of the policy and prohibits an insurer from unreasonably, and without proper cause, withholding or delaying payments of policy benefits due.

Poirier argued respondents violated the UCL by engaging in “a pattern and practice of selling Uninsured/Underinsured Motorist Coverage to its insureds with the intent to wrongfully deny the claims for monetary compensation when they are

presented, failing and refusing to objectively evaluate claims, failing to give at least equal consideration to their insured’s interests as they give to their own interests in evaluating their insureds [sic] claims; failing to promptly, thoroughly and properly investigate its insured’s claims pursuant to applicable the applicable coverage [sic], intentionally interpreting uncertainties and ambiguities in their favor and not how their incurred [sic] would have reasonably interpreted them at the time of contracting for the policy, and other unknown acts.”

Poirier sought among other relief compensatory and consequential damages, injunctive relief, disgorgement of profits, and punitive damages. He alleged respondents acted with malice, oppression, or fraud and conscious disregard of his rights; failed to promptly and thoroughly investigate all bases of the claim; and wrongfully delayed payment of policy benefits, forcing him to retain legal counsel to recover policy benefits due; therefore, he is entitled to recover punitive damages.

III. Summary Judgment Motion

Respondents moved for summary judgment or in the alternative summary adjudication, arguing they reasonably evaluated Poirier’s claim and there was no bad faith, breach of contract or unfair business practice. They argued: “Here, a genuine dispute existed as to coverage. First, there was no coverage under the policy until [USAA] paid policy limits. Second, [they] reasonably investigated [] Poirier’s claim by retaining medical experts and reviewing his voluminous medical records, which raised a genuine dispute over coverage. Third, [] Poirier’s arbitration award of $50,000 was substantially less than his lowest settlement demand of $200,000. In fact, the award was even less than the $65,000 offered [] Poirier to settle his UIM claim. This is objective evidence that there was a genuine dispute as to [] Poirier’s UIM claim and that [respondents’] conduct in handling [] Poirier’s claim was reasonable as a matter of law.” Respondents for the same reasons argued they had not breached the insurance policy. They argued that because his contract and bad faith claims failed, Poirier could not prove his UCL claim. They further argued he was not entitled to punitive damages because their conduct was not malicious.

Respondents supported their arguments with a declaration by their claims specialist who attached correspondence between respondents and Poirier regarding medical examinations and negotiations surrounding his claim.

Poirier opposed the motion, arguing that multiple disputed facts existed for a jury to resolve. Poirier specifically claimed he had produced the medical records in his possession but respondents delayed in obtaining other medical records and in making an offer under the policy, respondents conducted an inadequate investigation as they had prematurely rejected and closed his UIM claim, and respondents had engaged in 16 unfair settlement practices under the Insurance Code, the California Code of Regulations and case law.

Poirier submitted a declaration, his attorney’s declaration, and attached exhibits of their correspondence with respondents, discovery materials and deposition transcripts.

Respondents in reply contended summary judgment was proper because Poirier had offered no evidence to refute any of their material facts, he had raised matters not set forth in his complaint, and the California Code of Regulations did not provide for a private right of action.

IV. The Court’s Ruling

The court ruled respondents met their burden of production and showed that:

“(1) the initial insurance claim did not ripen until other liability policies had been settled, paid-out, or adjudicated, (2) upon ripening, [respondents] requested medical records pertaining to [Poirier’s] preexisting medical conditions because [Poirier] was claiming coverage for medical issues that may have existed prior to the auto accident at issue,

(3) . . . it was [Poirier] who refused to provide those medical records and thus created a need for this matter to go to arbitration, (4) as discovery proceeded through arbitration, [respondents] made settlement offers beginning with an offer of $25,000 and eventually reaching an offer of $65,000 (which was $15,000 over the eventual arbitration award), and (5) . . . the [a]rbitrator found [Poirier] ‘to be very deceitful in his testimony and at arbitration as well as in his deposition[,]’ that Poirier ‘lacked any credibility whatsoever,’ that the arbitrator ‘gave no consideration to his perjured testimony[.]’ ”

The court rejected all of Poirier’s counterarguments and ruled respondents did not unreasonably delay resolving his claim, the arbitrator’s decision regarding Poirier’s injuries should be given preclusive effect, respondents did not delay offering to settle the arbitration, and a good faith dispute existed regarding the amount payable. The court rejected Poirier’s claim that respondents had violated several insurance regulations, and found the evidence did not support a punitive damages award.

DISCUSSION

I. Poirier’s Contentions

It is difficult to ascertain Poirier’s appellate contentions, and specifically what superior court errors he claims occurred, as he appears to focus principally on the arbitrator’s purported errors. As near as we can tell, he considers the trial court erred by deferring to the arbitrator’s conclusions. His significant argument appears to be: “[R]espondents acted in bad faith when they failed to properly investigate claim [sic], failed to properly handle claim [sic], providing false information at arbitration, fraudulent and deceptive practices with deliberate misrepresentation of facts as outlined in 1st amended complaint,1st, 2nd and 3rd causes of action. That they deliberately misstated medical facts and made unfounded accusations against [] Poirier. That led to the [arbitrator] finding that ‘[Poirier] was deceitful in his testimony’. This subsequently led to a less than full value award.”

We set forth Poirier’s opening brief claims to illustrate the lack of clarity. In a section of Poirier’s brief titled “substantial evidence standard,” he states: “The court errored [sic] in finding that upon ripening, [respondents] requested medical records pertaining to [his] preexisting medical conditions, and that it was [he] that refuse [sic] to provide those medical records and thus created a need for this matter to go to arbitration.” Poirier cites to documents dealing with his medications and medical treatment, which were before the arbitrator but not in evidence below. We deny his request to augment the record with those documents. Under a heading, “elements of the action,” Poirier lists a string of caselaw quotations but again does not explain their applicability. He next states: “After initiating the arbitration process, [respondents] continued to act in bad faith to include oppressive, fraudulent and deceptive actions during discovery and investigation that deceived and influenced arbitrators’ [sic] decision.”

Poirier supports that assertion with a list of 18 points that refer to documents from his motion to augment. Poirier next titles a paragraph “Standard of Review,” but cites no legal authority setting forth any standard of review. He argues, “this decision of the arbitrator and or the evidence presented should be reviewed in its entirety as it related to the bad faith and fair practices standard.” The following section of the brief titled “Elements of the action” lists a string of case citations regarding the “genuine dispute doctrine” but without any analysis. In addressing “the balance of the merits and directly at the bad faith and fair dealings issue,” Poirier rehashes the “18 issues of the previous [sic] outlined Arbitration Process,” citing to the arbitration documents.

The next section of Poirier’s opening brief states: “[S]ubstantial evidence standard: shows that the evidence clearly show [sic] that the court has been deceived, that the evidence shows that clearly there has been [sic] lies and deception in the evidence presented. There has been oppression [sic] of material facts by the respondents and there [sic] acting agents. That these oppressive, fraudulent and malicious acts have violated in numerous ways the fair dealings and good faith that have been outlined by case laws.”

Another section of Poirier’s opening brief titled “Elements of the action” quotes a federal case from Arizona and another from Maryland, without explaining their relevance. Poirier concludes that the grant of summary judgment “was in error based on the facts submitted and argued . . . that [he] did not refuse to give authorizations and or provide medical records’ if [sic] fact he did just the opposite by providing medical records and authorizations on several occasions.” Poirier adds: “The arbitrator discredited [him] based on misrepresentations of medical facts, unfounded accusations of perjured testimony, lies and deceitfulness on the responding parties. Throughout the arbitration process [respondents] gave no regard to preexisting conditions that may have made [Poirier] more susceptible to injuries and or causing aggravation to those preexisting conditions. Instead, they chose to take advantage of conditions and focused their efforts on those issues to justify the denial of the claim. And now they try to disguise this and attempt to hide behind the Genuine Dispute Doctrine to justify their actions.”

II. Applicable Law

A trial court may grant summary judgment upon a showing “that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Albert v. Mid-Century Ins. Co. (2015) 236 Cal.App.4th 1281, 1289.) The purpose of summary judgment is to “cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

The moving party bears the initial burden of showing that the opposing party cannot establish “[o]ne or more of the elements of the cause of action” or by showing a valid affirmative defense. (§ 437c, subds. (o), (p)(2).) If that burden is met, the “burden shifts” to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or [an affirmative] defense.” (§ 437c, subd. (p)(2).)

” ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Burgueno v. Regents of University of California (2015) 243 Cal.App.4th 1052, 1057, quoting Aguilar, supra, 25 Cal.4th at p. 850.) We independently review a grant of summary judgment, “considering all of the evidence the parties offered in connection with the motion (except that which the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

III. Poirier Forfeited All Claims

On appeal this court recognizes that ” ‘[a] judgment or order of the lower court is presumed correct’ ” and ” ‘error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “Under this principle, [appellant] bear[s] the burden of establishing error on appeal, even though [respondent] had the burden of proving its right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised in the [appellant’s] briefs.” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 645.) In particular, ” ‘[t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.’ [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.] If no citation ‘is furnished on a particular point, the court may treat it as waived.’ ” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

As set forth above, Poirier has not complied with these principles. Poirier relies on the documents in the arbitration brief, which we have declined to judicially notice because they were not before the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [“documents not before the trial court cannot be included as part of the record on appeal”]; California Valley Miwok Tribe v. California Gambling Control Com. (2014) 231 Cal.App.4th 885, 898, fn. 13; Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.) We disregard Poirier’s contentions that are based solely on information contained in the arbitration documents. We are precluded from considering any facts unless they were before the superior court when it made the challenged ruling.

We recognize Poirier is self-represented; nonetheless, that status does not exempt him from the rules of appellate procedure or relieve him of his burden on appeal. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [noting that self-represented litigants “must follow correct rules of procedure” and that their failure to do so forfeits any challenge on appeal].)

Even if the arbitration documents were properly before us, Poirier’s reliance on them would be unavailing. In opposition to a summary judgment motion, “the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. [Citations.] For this purpose, responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163; see also Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1299 [speculation is not evidence].) Here, as noted, Poirier’s purpose for seeking our review of these documents is his belief the arbitrator “used the incorrect standard of review. That the [arbitrator] was deceivied [sic] by false statements and mislead by altered medical evidence.” Poirier’s belief is not substantial evidence, but rather speculation, which is insufficient to raise a triable issue of material fact. (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.) Furthermore, Poirier has not addressed whether the arbitrator’s decision should be given collateral estoppel effect; accordingly, we need not decide that matter. (Vandenberg v. Sup.Ct. (Centennial Ins. Co.) (1999) 21 Cal.4th 815, 824, 831-834.)

To the extent Poirier argues respondents breached the UIM policy, he does not specify which provisions were breached, and in what manner. Further, he fails to cite to the record or legal authority or present a coherent argument in light of his summary judgment burden and our standard of review; therefore, his arguments are deemed forfeited. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115.) This court is not required to undertake an unassisted review of the record. (Ibid.)

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

O’ROURKE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.