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Progressive West Insurance Co. v. Tiscareno

August 3, 2010


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


Pending before the Court is Plaintiff/Counter defendant Progressive West Insurance Company's ("Progressive") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court decides the matters on the papers and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated below, the Court DENIES Progressive's motion.


This declaratory relief action arises out of a fatal car accident. On January 5, 2007, twenty-nine year old Joshua Tiscareno was driving his car, eastbound on Athena Avenue, in Encinitas, California. At the same time, Kody Porterfield, who was sixteen years old at the time, was driving his car southbound on Highway 101. As Joshua Tiscareno began to execute a left turn across the southbound Highway 101, Kody Porterfield's car collided with the driver's side door of his vehicle. Joshua Tiscareno died as a result of the accident. Joshua Tiscareno is survived by his parents, Craig and Teresa Tiscareno ("Defendants" or "Tiscarenos"), as well as his brother Spencer Tiscareno. At the time of the accident, Kody Porterfield was insured by Progressive.

The accident was reported to Progressive on January 6, 2007. Shortly thereafter, Progressive began its investigation. On January 18, 2007, Progressive took the recorded statement of Kody Porterfield. (Doc. 54, Exh 5.) In his statement, Kody admitted that at the time of the accident he had been driving 85 miles per hour even though he believed the speed limit was 45 miles per hour. (the real speed limit appears to have been 40.)

Progressive also made several attempts to contact the Tiscarenos. (Id., Exh 1 at 17, 18.) On February 9, 2007, Progressive was contacted by Attorney James McCabe. (Id., Exh 1 at 18.) McCabe indicated that he represented the Tiscarenos, that all communication with them should be done through him, and that he did not have a police report regarding the accident. (Id.)

On February 14, 2007, Progressive sent a letter to McCabe. The letter states that Progressive was continuing its investigation and was awaiting the results of the police report. (Doc. No. 54, Exh. 10.) In the same letter, Progressive also requested the production of Joshua Tiscareno's birth and death certificates, along with a copy of the coroner's report. (Id.) Progressive also requested information from the Tiscarenos to establish the state of their relationship with Joshua. (Doc. No. 54, Exh. 1 at 18.) Evidence of their relationship was significant to Progressive because it is a relevant factor when assessing the liability for any wrongful death benefits that are to be paid to the surviving parents of an adult child. (Doc. No. 54 at 4, citing Cal.Code. Civ. Proc. § 377.60.)

On March 14, 2007, Progressive sent McCabe a status report regarding its investigation. (Doc. No. 54, Exh. 13.) Progressive explained that it could not finalize its liability evaluation until it had the police report. (Id.) Progressive also requested information regarding the Tiscarenos relationship with their son and a copy of his birth certificate. (Id.)

In early April, Progressive made additional attempts to get a copy of the police report, which was not available. (Doc. No. 54., Exh 1 at 21.) Ultimately, the police report would not be completed until October 8, 2007. (Doc. No. 54., Exh. 51 at 40.)

On April 16, 2007, the Tiscarenos made a written demand for the full amount of the Porterfields' policy limits ($100,000). (Id. at Exh. 17.) The letter also included a conformed copy of a wrongful-death complaint that they had filed against the Porterfields in San Diego Superior Court on March 28, 2007. (Id. at Exh. 17.)

On April 25, 2007, Progressive responded to the Tiscareno's written demand in a formal letter. (Id. at Exh. 18.) Progressive explained that they were "unable to accept or reject" the demand for the policy limits. (Id.) Progressive also noted: (1) that their investigation was ongoing, (2) that the preliminary investigation lead them to believe that Joshua Tiscareno was principally at fault, and (3) that they had still not received any information to confirm the relationship between the Tiscarenos and Joshua Tiscareno. (Id.) Progressive also requested an "open extension to respond" to the demand. (Id.)

On April 30, 2007, McCabe replied to Progressive's letter. (Id. at Exh. 22.) McCabe stated that the Tiscarenos had interpreted Progressive's April 25th letter as a rejection of their policy limit demand. They also rejected Progressive's request for an open extension. (Id.)

On May 3, 2007, McCabe sent a letter to the Porterfields' counsel. (Id. at Exh. 40.) McCabe acknowledged that the police report had not been finalized and that he had requested documents and other information to substantiate the relationship between Joshua Tiscareno and his parents. (Id.)

On May 9, 2007, Progressive sent a letter to Mr. Kim Porterfield. Mr. Porterfield had apparently requested that Progressive immediately pay the $100,000 policy limit to the Tiscarenos. (Id. at Exh. 40.) In response, Progressive explained to Mr. Porterfield that they had still not received the police report or any information to confirm the relevant relationships. (Id.) Because they had not been able to conduct a complete investigation, Progressive was not ...

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