California Court of Appeals, First District, Second Division
Napa County Superior Court No. 2657438, Honorable Diane M. Price, Trial Judge
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GCA Law Partners, Kathryn C. Curry, Kenneth R. Van Vleck for Plaintiffs and Appellants.
Horvits & Levy, Peder K. Batalden, Julie L. Woods; Weston & McElvain and Randy M. McElvain for Defendant and Respondent.
A 41-foot long, 7,300-pound tree limb crashed onto the home of appellants Michael and Lorie Bock, an incident they reported to their homeowner’s insurer, Travelers Property and Casualty Insurance Company (Travelers). Travelers assigned respondent Craig Hansen to adjust the loss, whose behavior, as alleged by the Bocks, can best be described as appalling. On Hansen’s first visit to the scene (which lasted no more than 15 minutes), he altered the scene before taking pictures, spoke derogatorily to Mr. Bock, and misrepresented the policy coverage, causing the Bocks to begin the clean up themselves, in the course of which Mrs. Bock was injured. Travelers refused the Bocks’ request to replace Hansen, who in the course of adjusting the loss is alleged to have revised an estimate to include a false statement by the Bocks, conspired with an unlicensed contractor to create a false report, and engaged in various other misconduct.
The Bocks sued Travelers and Hansen, their claims against Hansen alleging negligent misrepresentation and intentional infliction of emotional distress. The trial court sustained Hansen’s demurrer without leave to amend, concluding that the Bocks “have presented no convincing argument for allowing these claims to stand against defendant Hansen in what is a contract based action.” We conclude otherwise and reverse, holding first that negligent misrepresentation can be asserted against an insurance adjuster, and that such claim was adequately pleaded here. We also hold that the intentional infliction
Of emotional distress claim was not adequately pleaded, but that the trial court abused its discretion in denying leave to amend.
The facts for our analysis are those alleged by the Bocks, all of which are admitted by Hansen’s demurrer (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831 P.2d 317]), as are any facts that may be implied or inferred from those expressly alleged. (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37. 43 [112 Cal.Rptr.2d 677] (Traders Sports, Inc.).) Those facts must be accepted no matter how unlikely or improbable (Del E. Webb Corp. v. Structured Materials Co. (1981) 123 Cal.App.3d 593, 604 [176 Cal.Rptr. 824]), and without regard to the Bocks’ ability to prove them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214 [197 Cal.Rptr. 783, 673 P.2d 660].) Those facts are these:
In December 2001, the Bocks purchased from Travelers a homeowner’s policy covering their home in the city of Angwin, Napa County. The policy covered certain risks of physical loss to their home and provided additional coverage for debris removal.
Early on the morning of September 9, 2010, a large limb—41 feet long, some two feet in diameter, and weighing 7, 300 pounds—broke off from an oak tree in the Bocks’ front yard, “crashing into the chimney, the front of the house, and through the living room window.” The giant limb caused three other large limbs to fall, which came to rest on a portion of the Bocks’ chimney. The limbs “caused significant damage to the Bocks’ chimney, which had been in working condition prior to the incident and was used as the Bocks’ primary heating source for their home.” The limbs also broke three windows and caused damage to the interior of the home, the Bocks’ fence, and Mrs. Bock’s car.
The Bocks reported the incident to Travelers that same day. Travelers did not send an adjuster to the scene until the following day, September 10, when
Hansen arrived. Upon arrival, Hansen told Mrs. Bock that he only had a few minutes to review the damage, and in fact spent no more than 10 to 15 minutes at their home. Before Hansen took any pictures of the damage, he pushed several branches out of the living room window. When Mrs. Bock asked Hansen why he had not taken the pictures first, he ignored her, telling her to “clean up the mess, ” and demanding she clean up the living room. Moving outside, Hansen also removed the limbs leaning against the chimney and the fence before taking any pictures, all the while making derogatory comments about PG&E, Mr. Bock’s employer, which Mrs. Bock found rude and upsetting.
Before leaving, Hansen wrote a check for $675.69. When Mrs. Bock said that the amount would not be enough to even clean up, let alone repair, the damage, Hansen told her that cleanup was not covered under the policy and that she should contact “friends and family members with chainsaws” to clean up the limbs and the mess in the house and backyard. Relying on these statements, Mrs. Bock attempted to clean up the broken glass, sustaining a cut on her hand.
After Hansen left, Mr. Bock discovered that the fallen limbs had caused significant damage to the chimney. The next day, September 11, Mrs. Bock sent an e-mail to Travelers Property Field Manager Frank Blaha, reporting the chimney damage. She also requested that another adjuster be assigned to their claim because Hansen was “rude, disinterested, and rushed during his initial visit.”
Travelers ignored the request, and Hansen prepared an estimate, which Blaha sent to the Bocks on September 13. The estimate, which totaled $3, 479.54, reflected minimal amounts for each category of repairs needed, and was unreasonably low, as the Bocks had obtained an estimate the same day in the amount of $2, 065 for cut up and removal of the tree limbs alone.
On September 15, Hansen again came to the house, this time accompanied by Blaha. The Bocks were present, as was Ron Priest, a licensed general contractor who was there at the Bocks’ request. Hansen and Blaha were shown the significant cracks in the chimney, as well as gouges where the limbs had hit it, and Hansen took pictures of the damage to the chimney. Again, Hansen falsely told the Bocks that their policy did not cover the cost of clean up, explaining, “If a car had hit the tree causing it to fall, then the clean-up would be covered but since the wind caused the limb to fall, the cost to clean up the limbs was not covered.” Hansen told Mr. Bock to get his chainsaw and remove the limbs himself, and as he did so, Hansen yelled, “Atta boy! See you can do it! Now go get a few friends to finish it up.”
On September 17, Travelers provided the Bocks with a revised estimate for the loss. While the revised estimate increased the amount payable to $3, 655.23, it eliminated amounts previously included for damage to the hardwood floor and fence, based on the false statement that the Bocks had confirmed during the reinspection that there was no damage to those items, despite obvious physical evidence to the contrary.
That same day, acting at the request of Travelers, Roy Anderson of Vertex Construction Services (Vertex) inspected the Bocks’ house. Neither Vertex nor Anderson had a valid California contractor’s license. Because the limbs and debris had already been removed, Mrs. Bock provided Anderson a disk containing digital images that showed the fallen limbs and damage on the morning of the accident. Anderson sent Hansen a report dated September 29, detailing the results of his inspection and which concluded—falsely, the Bocks alleged—that “[n]o scarring, gouging, or scuff marks were noted on the siding or trim materials on the northeast corner of the residence.” Anderson’s report also falsely stated that “[t]here was no visual evidence that the fallen tree branch impacted the chimney, or that the fallen tree branch... propagated any damage to the natural rock chimney, ” instead concluding that the “fireplace appear[ed] to be in good and serviceable condition.” Finally, Anderson’s report concluded that the observed cracks in the chimney were minor and were “due to the age of the chimney and the residence, ” and that inspection of the interior and exterior of the house revealed that “[t]he only damage... due to the fallen tree branch [was] the broken window and frame.” Hansen did not perform any tests to support his conclusion, and did not include in his report any statements from the Bocks or Priest.
By letter dated October 1, Hansen informed the Bocks that based on the Vertex report Travelers was denying coverage for the chimney damage.
The Bocks asked Priest, a licensed contractor, to review the Vertex report and provide a response. He did, preparing a report disputing the false statements contained in the Vertex report and describing how the tree limb damaged the chimney, a conclusion he reached having inspected the property three times. On January 14, 2011, the Bocks, through their attorney, submitted additional information to Travelers, including Priest’s report, and requested that Travelers reconsider its coverage determination. Travelers never responded.
The Proceedings Below
The Bocks filed a complaint naming Travelers, Hansen, and Vertex. The complaint asserted six causes of action, including five against Travelers, styled as follows: first, ...