(Super. Ct. No. T06/2289C)
The opinion of the court was delivered by: Blease , Acting P. J.
Dupre Ins. Services v. Hall
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case involves the tort of another doctrine. The cross-complainant, an insurance agent, was sued by a third party for failure to procure liability insurance for the third party resulting in the insurance company's denial of a defense in an action against the third party. The cross-complainant then filed this action claiming the cross-defendants' negligence was responsible for the failure to obtain insurance, thus requiring the cross-complainant to defend against the action by the third party. The trial court granted the cross-defendants' summary judgment motion on the ground they were not negligent. This appeal followed.
Cross-complainant Dupre Insurance Services, Inc. appeals from a summary judgment entered in favor of cross-defendants Insurenet Insurance Marketing, Inc., Samantha L. Hall, and Stefanie Ann Habbestad. Dupre contends the trial court erred in entering summary judgment as to its "tort of another" cause of action because "the evidence and argument presented in the moving papers did not address the factual and legal basis for [that] cause of action," namely that cross-defendants' misappropriation and use of Dupre's name led to Dupre having to defend itself in a lawsuit brought against it by a third party and to bring a defensive cross-complaint.
Under the tort of another doctrine, "[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620 (Prentice).)
Dupre's tort of another cause of action is premised on cross-defendants' alleged negligence in failing to procure liability insurance applicable in defense of third party's action against Dupre. However, the trial court concluded that cross-defendants were not negligent. Because there can be no tort of another without a tort, Dupre's tort of another cause of action is barred as a matter of law. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ross Garrison dba Ross Garrison Construction (Garrison) sued Dupre, Insurenet, and others for professional negligence and negligence after Garrison's insurance carrier refused to defend him in a lawsuit on the ground the carrier had not been paid for Garrison's commercial general liability policy, and the policy had been cancelled. Garrison's claims were based on Habbestad's alleged negligence in procuring and maintaining the policy. Believing Habbestad "was employed by DUPRE and/or its successor-in-interest INSURENET," Garrison named Dupre and Insurenet as defendants in his complaint.
Dupre cross-complained against Insurenet, Hall, and Habbestad for, among other things, negligence and "tort of another." Dupre's negligence cause of action was based on Hall's alleged misrepresentation that she and Habbestad were agents or employees of Dupre, Habbestad's "participation in the failed procurement of the insurance policy for [Garrison]," Insurenet's consummation of the sale of Dupre's assets to Insurenet, and Insurenet and Hall's control and management of Dupre. Dupre's tort of another cause of action likewise was based on Hall's purported negligent misrepresentation that she and Habbestad were agents or employees of Dupre, and Habbestad's alleged failure "to exercise ordinary care" in procuring the insurance policy for Garrison. In addition, Dupre alleged that as a result of Hall and Habbestad's conduct, it was "compelled to hire an attorney to defend against [Garrison's] complaint and to prosecute this cross-complaint," and that "[u]nder the 'tort of another' doctrine, [it was] entitled to recover its attorney fees and costs incurred in" defending against and prosecuting those actions.
Cross-defendants moved for summary judgment on the cross-complaint, arguing, among other things, that Dupre could not prove any of its claims against them because they "had nothing to do with the cancellation of the Garrison policy." They also asserted that Dupre's negligence cause of action failed as a matter of law because Dupre could not prove cross-defendants' alleged conduct caused it harm, and that the tort of another doctrine was inapplicable under the circumstances of this case.
The trial court granted cross-defendants' motions for summary judgment, finding: "There is no triable issue of material fact that any of these moving parties caused any damage to Garrison. There is no triable issue of material fact that they violated any duty to either Garrison or Dupre as these challenged causes of action allege. There is no triable issue of material fact that the moving ...