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Joseph D. Elias v. Famers Insurance Exchange

August 14, 2012

JOSEPH D. ELIAS, PLAINTIFF AND APPELLANT,
v.
FAMERS INSURANCE EXCHANGE, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 39200900213046CUICSTK)

The opinion of the court was delivered by: Robie , Acting P. J.

Elias v. Farmers Ins. Exchange

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this action for breach of an insurance contract, the trial court granted summary judgment to defendant Farmers Insurance Exchange (Farmers) on the ground that the action was barred by the one-year limitation period contained in the policy because plaintiff Joseph D. Elias did not commence the action until more than a year after Farmers "clearly and unequivocally" denied his claim. On appeal, Elias contends the trial court erred because "the date of denial was an issue of fact which was not subject to determination and resolution in a summary judgment motion." Finding no merit in this argument, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Elias was allegedly the victim of a home burglary in January 2008. Shortly thereafter, he submitted a claim against his homeowners' insurance to Farmers. The policy contained a provision stating that "[s]uit on or arising out of this policy must be brought within one year after the loss occurs." Under California law, however, the one-year period "is tolled from the time the insured gives notice of the claim to the insurance company until 'the time the insurer formally denies the claim in writing.' [Citations.] This has been construed to mean 'unequivocal' denial in writing." (Migliore v. Mid-Century Ins. Co. (2002) 97 Cal.App.4th 592, 604.)

On May 23, 2008, Farmers sent a letter to Elias explaining that Farmers had "finalized its investigation and evaluation of the . . . claim." The letter expressly stated that it "represent[ed] the final decision of [Farmers] for the . . . loss" and stated that Farmers "denies the claim in its entirety" "due to material misrepresentations and conflicting statements made by the insured." The "Conclusion" section of the letter included the following:

"For the reasons specified above, [Farmers] will not make any payment to the insured at this time.

"We are not aware of any party legally responsible for causing or contributing to this loss. If you believe there is additional information that would identify a responsible party, please contact [Farmers]. In the absence of additional information, the pursuit of any recovery is your responsibility. Although the purpose of this letter is to advise of [Farmers]'s final decision, if you believe [Farmers] has failed to consider any relevant evidence or documentation concerning your claim, you have a period of an additional fourteen (14) days from the date of this letter to submit any additional evidence or documentation you wish for [Farmers] to consider. If no additional information is received from you during that time, then [Farmers] will assume it has considered all of the evidence and documentation you believe is relevant to the proper investigation of the claim."

The "Conclusion" section of the letter further specified that "[p]ursuant to the terms of the policy and California law, the insured has one year from the date of this letter to commence suit against [Farmers] should the insured wish to pursue this matter in litigation."

In a letter to Farmers's attorney dated June 6, 2008, Elias's attorney noted that he had "received the final decision of [Farmers] for the . . . loss" but asked that Farmers "reopen this claim [to] review [certain] supplemental police reports and [to] give [Elias] additional time to provide [certain] documentation" Farmers had requested earlier.

In a letter dated August 12, 2008, Farmers's attorney responded to Elias's attorney, explaining that Farmers had "reviewed[,] evaluated" and "considered" the information provided following the May 25 "Decision Letter," but that information did "not change the basis for the Decision. Accordingly, the claim is denied due to material misrepresentation and conflicting statements." Thereafter, the August 12 letter stated that ...


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