Case Number: BC481016 Hearing Date: June 25, 2014 Dept: 46

Posted 06-23-2014 at 2:20 p.m.

Case Number: BC481016
EUGENE BELL VS GEICO CASUALTY COMPANY
Filing Date: 03/19/2012
Case Type: Breach Contrct/Warnty (Sellr Pltf) (General Jurisdiction)
Status: Pending
Future Hearings

06/25/2014 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Motion for Summary Judgment

Motion for Summary Judgment is DENIED. While the policy and the undisputed authority indicate clearly that a policy holder is required to submit to an examination under oath relative to the underlying facts of a claim, there is no policy or legal precedent that requires that the examination be in person as opposed to by some other means.

Plaintiff’s Evidentiary Objections to the declaration of Laureen A Monty are Overruled: the testimony is admitted for the limited purpose of the state of mind of the declarant as to why the EUO was sought.

Plaintiff’s Evidentiary Objections to the declaration of Phillip Grigg: 1-6 are Overruled on the same basis as the testimony of Laureen A Monty – admitted for the limited purpose of the state of mind of the declarant as to why the EUO was sought. Objections 7-12 are sustained (and related testimony is stricken) since the conversations related were not witnessed by Mr. Grigss – he is merely relating hearsay from co-workers who purported had conversations with Plaintiff or his father. There is no hearsay exception merely because the co-employees also worked on the claim.

1. The Policy Language of Geico Policy

Comprehensive Coverage for various aspects of physical damage to Plaintiff’s 2005 Ferrari 614 (hereinafter ‘Vehicle’) established by UMF No. 1 provides, in relevant part, as follows:

“CONDITIONS
The following conditions apply only to the Physical Damages Coverages:…

3. ASSISTANCE AND COOPERATION OF THE INSURED
The insured will cooperate and assist us, if requested:
(a) in the investigation of t he loss;
(b) in making settlements;
(c) in the conduct of suits;
(d) in enforcing any right of subrogation against any legally
responsible person or organization;
(e) at trials and hearings;
(f) in securing and giving evidence; and
(g) by obtaining the attendance of witnesses.

4. ACTION AGAINST US
Suit will not lie against us unless the policy terms have been
complied with and until 30 days after proof of loss is filed and
until the amount of loss is determined…

15. EXAMINATION UNDER OATH
The insured or any other person seeking coverage under this
policy must submit to examination under oath by any person
named by us when and as often as we may require…” (emphasis
theirs) (Declaration of John Moura [hereinafter, “Moura”], Exhibit
“A,” pp. 9 and 15; see also, UMF Nos. 2-4).

There is no reasonable interpretation of that language that requires and in person examination under oath or any interpretation that would preclude examination under oath by telephone or some other means.

2. Applicable California Case Law

“Many property insurance policies obligate the insured to submit to an examination under oath if requested by the insurer in connection with any claim.” Croskey, Heeseman and Imre, CAL. PRAC. GUIDE: INSURANCE LITIGATION (The Rutter Group 2013) ¶ 6:289. “Because the facts regarding the amount and circumstances of a loss are often within the sole knowledge of the insured, the insurer must have ‘some means of cross-examining, as it were, upon the written statement and proofs of the insured, for the purpose of getting at the exact facts before paying the sum claimed of it.’ [Hickman v. London Assur. Corp. (1920) 184 C 524, 529–530; Brizuela v. CalFarm Ins. Co. (2004) 116 CA4th 578, 591–592].” Id. at ¶ 6:289.2. “Examinations under oath are frequently conducted under circumstances where the loss is undocumented or suspect. Insurers frequently demand production of all loss documentation, as authorized by the policy.” Id. at ¶ 6:289.3.

“Once requested, the insured’s submission to an examination under oath becomes a condition precedent to the insurer’s obligation to pay the claim. The insurer has the absolute right to require the insured to submit even if its purpose is to gather evidence to defeat the claim. [California Fair Plan Ass’n v. Sup.Ct. (Darwish) (2004) 115 CA4th 158, 167; Brizuela v. CalFarm Ins. Co., supra, 116 CA4th at 587; see Abdelhamid v. Fire Ins. Exch. (2010) 182 CA4th 990, 1004].

However, the legal authority cited by the parties does not require any particular means by which an examination under oath (EUO) must occur.

3. Discussion

Plaintiff does not even dispute Geico’s right to obtain an EUO; rather, he disputes Geico’s position that the EUO had to be taken in person. Whether or not “[t]he examination is normally conducted orally before a court reporter who administers the oath and transcribes the proceeding,” Id. [TRG] at ¶6:289 (emphasis added), there is no language in the Policy itself or California authority which mandates an in-person EUO. Plaintiff, in response to Geico’s requests that he admit that he cancelled the 11/8/10 and 1/11/11 EUOs (i.e., Moura Declaration, Exhibit “C” Nos. 7 & 9), explained that “[r]esponding [p]arty’s attorney simply wanted to reschedule an Examination Under Oath, but by telephone, since Responding Party was not available to meet with someone in person.” (Id., Exhibit “E,” 6:7-12). Plaintiff has also attested that:

“8. On August 2, 2011, I gave a recorded statement to William Smith, an agent from Geico by telephone, from which a written transcript was made and sent to me…
9. I never declined to give my statement under oath, but was merely having difficulty arranging to have it done in person, due to my frequent traveling. I was always willing to give a statement, and in fact did so in August 2011. The difficulty was that GEICO was insisting that the statement be given in person.
10. I was not in California on September 17, 2010, the date GEICO arbitrarily set for my recorded statement. Although I attempted to make myself available for a recorded statement on November 8, 2010, my attorney had a conflict with his calendar on that date. I was out of the country in January 2011, another date GEICO arbitrarily set for my recorded statement.” (P’s Declaration, ¶¶ 8-10).

Plaintiff’s counsel, Andrew Stern (hereinafter, “Stern”), has attested, in pertinent part, as follows:

“3. On June 18, 2010, I wrote a letter to Beverly Mills, Esq. (hereinafter ‘Mills’ or ‘the Mills Office’) advising Mills that I was trying to arrange for a statement under oath for Plaintiff, since Geico was apparently requiring same in order to ‘consider’ Plaintiff’s Undercarriage Claims and Key Claim. Said letter also demanded the amount of Thirty Thousand Five Hundred Eighty Four Dollars and Eighty Six Cents ($30,584.86) to resolve Plaintiff’s claims…
5. On June 23, 2010, I received a letter from the Mills Office stating that ‘the insured or any other person seeking coverage under this policy must submit to examination under oath…’ and arbitrarily set September 17, 2010 for such examination of Plaintiff…
6. After repeated attempts to speak to someone at the Mills Office by telephone, on August 6, 2010, I wrote to Mills, regarding the arbitrary mid-September 2010 date set by Mills for the examination of Plaintiff…
7. On or about October 22, 2010, I received a letter from the Mills Office, again stating that an examination under oath of Plaintiff was required and again setting an arbitrary date of November 8, 2010 for such examination…
9. On November 3, 2010, I caused my office to send an email to the Mills Office, advising them that the November 8, 2010 date arbitrarily selected by them, had to be continued due to a conflict in my calendar regarding a trial…
10. On or about November 18, 2010, I received a letter from the Mills Office, again stating that an examination under oath of Plaintiff was required and again setting an arbitrary date of January 11, 2011 for such examination…
11. On November 22, 2011, I wrote to Mills, advising Mills that Plaintiff would be out of the country on the date Mills arbitrary selected for Plaintiffs examination. I also suggested that the statement might be taken by telephone, under oath, since scheduling seemed to be such a problem…
13. On or about January .19, 2011, I received a letter from Geico denying both the Undercarriage Claim and the Key Claim, ostensibly based on Plaintiff’s failure to give a statement under oath and ‘refusing’ to give such statement…
14. Plaintiff has always been ready willing and able to give Geico a statement under oath but for scheduling issues. Neither Plaintiff nor I ever insisted that such statement must be by telephone.”

(Stern Declaration, ¶¶ 3, 5-7, 9-11, 13 and 14).

Plaintiff’s evidence as cited above shows a willingness to cooperate with Geico’s requests for EUO including suggesting a telephonic statement under oath or an alternative date for an in-person EUO when Plaintiff was available. A triable issue of fact exists as to the material issues of fact submitted by Defendant.

A defendant moving for summary judgment has the initial burden to make a prima facie showing there is no merit to a cause of action and that therefore the defendant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2); Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) To satisfy this burden, the moving defendant must show that at least one of the elements of the cause of action has not been established by the plaintiff and cannot reasonably be established, or must establish the elements of a complete defense to the cause of action. (Code Civ. Proc., § 437c, subds. (o), (p)(2); State of California v. Allstate Ins. Co., supra, at p. 1017; Aguilar, supra, at p. 849; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484.) Considering the rulings on the evidentiary objections which strike the testimony regarding Plaintiff’s refusal to submit to any EUO, Geico has not met its initial burden because the evidence does not support the conclusion that Plaintiff refused an in-person EUO is required by the policy or law or that there was unreasonable refusal to give an EUO.

Even assuming the court admitted the inadmissible hearsay evidence relating to the conversations of co-workers, the motion must still be denied. If the moving defendant is shown to have met it’s initial burden, then the burden shifts to the plaintiff to show that there is at least one triable issue of material fact regarding the cause of action or as to the complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849; Jessen, supra, at p. 1484.) “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.” (Aguilar, supra, at p. 850, fn. omitted; accord, Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) The declarations of Plaintiff and of his counsel Andrew Stern establish contradictory facts to the declarations offered by moving party – this testimony supports the argument that there was no refusal to submit to the EUO but rather that the failure of the EUO was due to unavailability due to traveling and unwillingness of Geico to conduct a telephonic EUO.