However, California law does not require that the fiduciary relationship element of constructive fraud constitute the technical legal requirements of establishing a fiduciary duty. In cases of constructive fraud, the term "fiduciary relationship" has been used synonymously with the term "confidential relationship." Estate of Cover, 188 Cal. 133, 143, 204 P. 583, 588 (1922). For example, in interpreting Section 1573, the California Supreme Court has stated: "Constructive fraud often exists where the parties to a contract have a special confidential or fiduciary relation . . . ." Mary Pickford Co. v. Bayly Bros., Inc., 12 Cal. 2d 501, 525, 86 P.2d 102, 114 (1939) (emphasis added).
Recently, California courts have continued to interpret the fiduciary relationship requirement of constructive fraud as synonymous with a confidential relationship. In Byrum v. Brand, 219 Cal. App. 3d 926, 937, 268 Cal. Rptr. 609, 617 (1990), the California Court of Appeal stated: "The breach of duty referred to in section 1573 must be one created by the confidential relationship . . . ." Furthermore, in Barrett v. Bank of America, 183 Cal. App. 3d 1362, 1369, 229 Cal. Rptr. 16, 20 (1986), the California Court of Appeal ruled that the quasi-fiduciary relationship of a bank to a depositor was sufficient for the trial court to instruct the jury on the theory of constructive fraud.
Therefore, a true fiduciary duty between an insurer and an insured is not a necessary element of constructive fraud. Moreover, defendant has alleged that plaintiff breached a confidential relationship. For these reasons, the Court denies plaintiff's motion to dismiss defendant's constructive fraud claim.
C. Violation of Statutory Duty
Defendant alleges that General American violated its statutory duty pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 (West Supp. 1991), by refusing to continue paying defendant disability benefits. Plaintiff moves to dismiss defendant's breach of statutory duty claim because the Americans with Disabilities Act of 1990 is currently unenforceable, and it does not affect state laws concerning insurance.
The Americans with Disabilities Act of 1990 is inapplicable because no enforcement provisions of the Act are currently in force. The enforcement provisions of the Act do not become effective until July 26, 1992. Americans with Disabilities Act of 1990, 42 U.S.C.A. §§ 12117, 12133, & 12188 (West Supp. 1991).
Therefore, the Court dismisses with prejudice defendant's cause of action alleging breach of statutory duty because the Americans with Disabilities Act of 1990 is not yet enforceable. Because the Act is not yet enforceable, the Court need not address the issue of whether it affects state laws concerning insurance.
IV. Plaintiff's Motion for a More Definite Statement
Pursuant to Federal Rule of Civil Procedure 12(e), plaintiff moves that the Court require defendant to provide a more definite statement of his constructive fraud cause of action. As noted above, defendant has sufficiently pleaded the elements of constructive fraud.
Therefore, the Court denies plaintiff's motion for a more definite statement.
IT IS HEREBY ORDERED that:
1. Plaintiff General American's and third-party defendant Kasalko's motion to dismiss for lack of subject matter jurisdiction is GRANTED, with leave to amend, as to the following non-diverse (California) third-party defendants: Abbott, Goldberg, Burr, Sanchez, McDonald, Oliver, Schneider, Bennett, and Imperial Savings Bank. The motion is DENIED as to these third-party defendants: Maccabees Insurance Company, Mueller, Guardian Insurance Company, Lancetter, Provident, and Kasalko.
2. Plaintiff's and third-party defendant's motion to dismiss defendant's conspiracy cause of action is GRANTED with leave to amend.
3. Plaintiff's motion to dismiss defendant's causes of action for breach of fiduciary duty and breach of statutory duty is GRANTED with prejudice.
4. Plaintiff's motion to dismiss defendant's constructive fraud cause of action is DENIED.
5. Plaintiff's motion to require defendant to provide a more definite statement is DENIED.