This purported fiduciary duty allegedly would have been breached "if Miller was aware of the damage which he had an opportunity to observe" while visiting the Bennetts socially given that he failed "to advise the Bennetts of this fact and of what measures they needed to take to protect their rights" under the policy.
As defendants recognize, in order for the court to ignore Miller's residency for the purposes of jurisdiction they must demonstrate that it "is obvious according to settled law of the state" that plaintiffs have failed to state a cause of action against Miller. McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). Put another way, it must appear to "a near certainty" that joinder of Miller was fraudulent. Lewis v. Time Inc., 83 F.R.D. 455, 466 (E.D. Cal. 1979), aff'd, 710 F.2d 549 (9th Cir. 1983). Having reviewed all submissions to the pending motion to remand, the court finds that Miller is not a legitimate party to this action.
I. The Substantive Claims
The Supreme Court of California has unambiguously and succinctly rejected the notion, advanced here by the first two causes of action in the FAC against Miller, that insurance agents could be held liable for contractual breaches. In Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 824, 169 Cal. Rptr. 691, 620 P.2d 141 (1979), cert. denied, 445 U.S. 912, 63 L. Ed. 2d 597, 100 S. Ct. 1271 (1980), the court reversed individual judgments against insurance agents on the grounds that agents "are not parties to the insurance contract and not subject to the implied covenant [of good faith and fair dealing]."
Plaintiffs do not even contest, with good reason, Allstate's contention that there is no valid cause of action against Miller for either fraud or negligence. The alleged fraud, by the terms of the FAC, involved misrepresentations made in the policy. There is no specific allegation that Miller himself harbored any intent to deceive the Bennetts or that he personally made certain misrepresentations. Certainly the record before the court does not even remotely suggest facts supporting such a claim. Similarly, the claim for negligence relates exclusively to the investigation and processing of the Bennetts' loss claim, the renewing of their policy, and the drafting of the insurance contract itself. Once again, there is no allegation or outside facts to indicate Miller participated in these activities.
On the contrary, Miller's unrebutted declaration establishes convincingly that it was not his position to perform such functions.
Although it is obvious that none of the four stated causes of action against Miller are valid "according to the settled law of the state," McCabe v. General Foods Corp., 811 F.2d 1336 at 1339, given the governing standards in this context and ease with which amendments to the pleading are made, the court has indulged the Bennetts' chief contention that Miller nonetheless is legitimately sued for his potential
breach of fiduciary duties. After careful review of the further briefings on this issue and its own independent investigation, the court finds that there are several settled reasons why this claim also fails.
Despite considerable opportunities to do so, the California Supreme Court has been unwilling to find the existence of fiduciary duty between insurers and insureds. See e.g. Foley v. Interactive Data, 47 Cal. 3d 654, 254 Cal. Rptr. 211, 765 P.2d 373 (1988); Seaman's Direct Buying Service Inc. v. Standard Oil, 36 Cal. 3d 752, 206 Cal. Rptr. 354, 686 P.2d 1158 (1984). On the other hand, every case to squarely address the issue has decided that indeed under California law no fiduciary duty is created between insurers and insureds. Henry v. Associated Indemnity, 217 Cal. App. 3d 1405, 1418-19, 266 Cal. Rptr. 578 (1990); Hassard, Bonnington v. The Home Ins. Co., 740 F. Supp. 789 (S.D. Cal. 1990); Kanne v. Connecticut Life Ins. Co., 607 F. Supp. 899 (C.D. Cal. 1985), vacated in part on other grounds, 859 F.2d 96 (9th Cir. 1988), rehearing denied, 867 F.2d 489 (1988) (en banc), cert. denied, 492 U.S. 906, 109 S. Ct. 3216, 106 L. Ed. 2d 566 (1989).
Even ignoring these decisions, there is the further difficulty in this case that the putative fiduciary is the insurer's agent. If Miller were held to be the Bennetts fiduciary, he would have to place their interests not only before his own, but before his employer as well. But such a scenario plainly runs afoul of the long-standing axiom, embraced in California, that an "agent may not compete with the principal, nor may he or she act as an agent for another whose interests conflict with those of the principal." Sierra Pacific Ind. v. Carter, 104 Cal. App. 3d 579, 581, 163 Cal. Rptr. 764 (1980), citing Witkin, Summary of California Law, Vol. 1, 8th ed., pp. 705-706.
Finally, the court finds no merit in the Bennetts' argument that Miller became a fiduciary by cultivating the appearance of a long-time friendship and in whom they trusted and relied. The court rejected a similar claim in Ampuero v. Luce, 68 Cal. App. 2d 811, 819, 157 P.2d 899 (1945), where an elderly man sued an attorney, "an intimate and lifelong friend [of his wife] who had helped her throughout her years," but who allegedly betrayed this relationship of trust by failing to carry out a condition the wife had attached to an earlier gift of property to the attorney. The court specifically held that the alleged "relationship of trust and confidence" did not qualify as a "confidential or fiduciary relation, as those terms are used in the authorities." Id. Following Ampuero, other courts have underscored that "the mere placing of trust in another person does not create a fiduciary relationship." Zumbrun v. Univ. of Southern California, 25 Cal. App. 3d 1, 13, 101 Cal. Rptr. 499 (1972). The Bennetts, who never pled or otherwise suggested a confidential relationship existed between Miller and themselves, and who instead base their fiduciary claim on their alleged friendship with Miller and reposing of trust in him, cannot meaningfully distinguish these cases.
In light of the above, the court finds it obvious according to settled law that no valid cause of action, pled or unpled, exists against Miller.
A separate objection of untimeliness has been raised to Allstate's removal. The removal statute, 28 U.S.C. § 1446(b) provides in pertinent part:
The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading. . . .