Filed 10/20/04
IN THE SUPREME COURT OF CALIFORNIA
JONATHAN NEIL & ASSOCIATES, INC.,
Plaintiff and Appellant,
S107855
v.
FREDDIE JONES,
Ct.App. 5 F029400/F030300
Defendant, Cross-complainant and
Appellant;
Fresno County
MILDRED JONES et al.,
Super. Ct. No. 0512318-7
Cross-complainants and Appellants.
CAL-EAGLE INSURANCE COMPANY,
Cross-defendant and Appellant;
JOHNSEY INSURANCE COMPANY,
Cross-defendant and Respondent.
BY THE COURT:
MODIFICATION OF OPINION
The opinion in this case, filed on August 5, 2004 and appearing at 33
Cal.4th 917, is modified as follows:
1. The third sentence in the second paragraph on page 925 is modified to
read: “In its original form, California’s rule 23 incorporated the generic,
nationwide rule resulting in uncertainty concerning the way the rule applied in
California.”
2. The first two sentences in footnote 2 on page 925 are modified to read:
“Specifically, paragraph C of rule 23, as it existed at the time the Joneses’ policy
was issued, provided two alternative methods of calculating premiums. The first
alternative provided that ‘[t]ruckers may be written on a specified car basis
according to the Trucks, Tractors and Trailers Classification Rule.’ ”
3. The third sentence in the first full paragraph on page 927 is modified to
read: “Many insureds did not have the required detailed records readily available
to establish their eligibility for the five criteria for excess coverage.”
4. The fourth sentence in the second full paragraph on page 927 is
modified to read: “It charged the Joneses an initial estimated annual premium of
$14,088, based on the Joneses use of their own, specified vehicles in the
business.”
5. The fourth sentence in the first full paragraph on page 928 is modified
to read: “After speaking with Mohr, the Joneses received a consumer complaint
form, which they filled out and returned to the DOI’s consumer services division
as directed.”
6. The fifth sentence in the second full paragraph on page 935 is modified
to read: “But the Joneses did not attempt to inform the DOI of Cal-Eagle’s
misrepresentation, nor to press the matter with the DOI personnel in charge of
handling the complaint, much less pursue an appeal.”
7. The second sentence in the second paragraph on page 940 is modified
to read: “There, the overcharging of premiums was inextricably linked to the
mishandling of claims – precisely the kind of bad faith behavior that goes to the
heart of the special insurance relationship and gives rise to tort remedies.”
8. The paragraph on page 942 is modified by adding at the end the
following sentence: “Each party is to bear its own costs on appeal.”
This modification changes the judgment.
Date: | Docket Number: |
Wed, 10/20/2004 | S107855M |
1 | Fred Jones Trucking, Inc. (Defendant and Appellant) Represented by James P. Wagoner Mccormick Barstow Sheppard Wayte & Carruth, LLP 5 River Park Place East Fresno, CA |
2 | Fred Jones Trucking, Inc. (Defendant and Appellant) Represented by Wendy S. Lloyd Mccormick Barstow Sheppard Wayte & Carruth, LLP 5 River Park Place East Fresno, CA |
3 | Jonathan Neil & Associates, Inc. (Plaintiff and Appellant) Represented by Peter O. Israel Greines, Martin, Stein, Etal 5700 Wilshire Blvd., Suite 375 Los Angeles, CA |
4 | Cal-Eagle Insurance Company (Plaintiff and Appellant) Represented by Peter O. Israel Greines, Martin, Stein, Etal 5700 Wilshire Blvd., Suite 375 Beverly Hills, CA |
5 | Jones, Freddie (Defendant and Appellant) Represented by James H. Wilkins Mccormick, Barstow, Sheppard, Wayte & Carruth P.O. Box 28912 Fresno, CA |
6 | Jones, Mildred (Defendant and Appellant) Represented by James P. Wagoner Mccormick Barstow Sheppard Wayte & Carruth LLP P. O. Box 28912, 5 River Park Place East Fresno, CA |
7 | Johnsey Insurance Company (Cross-defendant and Respondent) Represented by Todd B. Barsotti Merson & Yrulegui 2680 West Shaw Lane Fresno, CA |
8 | Roxborough Pomerance & Nye (Pub/Depublication Requestor) Represented by Nicholas Peter Roxborough Rosborough, Pomerance, & Nye Llp 10866 Wilshire Boulevard, Suite 1200 Los Angeles, CA |
9 | Levine, Arthur J. (Pub/Depublication Requestor) Represented by Arthur J. Levine Law Offices Of Arthur J. Levine, Cpcu, Arm 2067 Smokewood Avenue Fullerton, CA |
10 | Kronick, Moskovitz, Tiedemann & Girard (Pub/Depublication Requestor) Represented by William A. Kershaw Kronick Moskovitz Tiedemann & Girard 400 Capitol Mall, 27th Floor Sacramento, CA |
11 | Law Offices Of Barry L. Kramer (Pub/Depublication Requestor) Represented by Barry L. Kramer Law Offices of Barry L. Kramer 6601 Center Drive West, Suite 500 Los Angeles, CA |
12 | United Policyholders (Pub/Depublication Requestor) Represented by Jeffrey Ehrlich Shernoff, Bidart, Darras & Dillon 600 South Indian Hill Boulevard Claremont, CA |
13 | Aetna Health Of California (Amicus curiae) Represented by Christina J. Imre Sedgwick Detert Moran et al 801 South Figueroa Street, 18th Floor Los Angeles, CA |
14 | California Automobile Assigned Risk Plan (Amicus curiae) Represented by Thomas E. Mcdonald Sonnenschein, Nath & Rosenthal 685 Market Street, 6th Floor San Francisco, CA |
15 | State Compensation Insurance Fund (Amicus curiae) Represented by S. Thomas Todd Horvitz & Levy 15760 Ventura Blvd., 18th Floor Encino, CA |
16 | California Workers Compensation Institute (Amicus curiae) Represented by Paul E. B. Glad Sonnenschein, Nath & Rosenthal 685 Market Street, 6th Floor San Francisco, CA |
17 | State Farm Mutual Automobile Insurance Company (Amicus curiae) Represented by Vanessa Wells Heller, Ehrman, White & McAuliffe LLP 275 Middlefield Road Menlo Park, CA |
18 | California Insurance Commissioner (Amicus curiae) Represented by Elisa Beth Wolfe-Donato Office of the Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA |
19 | Consumer Attorney Of California (Amicus curiae) Represented by Robert S. Gianelli Gianelli & Morris 880 West First Street, Suite 215 Los Angeles, CA |
20 | Consumer Attorney Of California (Amicus curiae) Represented by Robert S. Gerstein Attorney at Law 1717 Fourth Street, 3rd Floor Santa Monica, CA |
21 | Consumer Attorney Of California (Amicus curiae) Represented by Sherril Nell Wells Gianelli & Morris 880 West First Street, Suite 215 Los Angeles, CA |
Disposition | |
Aug 5 2004 | Opinion: Affirmed |
Dockets | |
Jun 24 2002 | Petition for review filed by counsel for defendants/appellants (Fred Jones, et al.) |
Jun 26 2002 | Received Court of Appeal record 5 doghouses & 12 boxes |
Jul 9 2002 | Request for depublication (petition for review pending) By the Law Firm Roxborough, Pomerance & Nye (NON-ARTY). |
Jul 10 2002 | Request for depublication filed (another request pending) By The Counsumer Attorneys of California (NON-PARTY). |
Jul 15 2002 | Request for depublication filed (another request pending) By the Law firm of Kronick, Moskovitz, Tiedemann & Girard (NON-PARTY). / 40(K). |
Jul 15 2002 | Request for depublication filed (another request pending) United Policyholders [non-party] |
Jul 16 2002 | Request for depublication filed (another request pending) By Arthur J. Levine. (NON-PARTY)/40 (K) |
Jul 16 2002 | Request for depublication filed (another request pending) By the Law Offices of Barry L. Kramer (NON-PARTY). / 40(K). |
Jul 16 2002 | Request for depublication filed (another request pending) By United Policyholders (NON-PARTY) / 40(K). |
Jul 16 2002 | Answer to petition for review filed respondents Jonathan Neil & Assocs & Cal Eagle Insurance [Rule 40K] |
Jul 22 2002 | Opposition filed By appellants {Jonathan Neil & Associates and Cal Eagle Insurance Company} to request for depublication filed by the firm Roxborough, Pomerance & Nye. / 40(K). |
Jul 24 2002 | Received: Supplemental Proof of Service from counsel for United PolicyHolders (NON-PARTY). |
Jul 25 2002 | Opposition filed to reqts for depublication>>appellants Jonathan Neil & Associates, Inc. & Cal Eagle Insurance Company |
Aug 14 2002 | Letter sent to: Counsel regarding Certification of Interested Entities or Persons. |
Aug 14 2002 | Petition for Review Granted (civil case) Baxter, J., was recused and did not participate. Votes: George, CJ., Kennard, Werdegar, Chin, Brown and Moreno, JJ. |
Aug 29 2002 | Certification of interested entities or persons filed By counsel for appellant. |
Sep 4 2002 | Certification of interested entities or persons filed By counsel for appellants {Fred Jones et al.,}. |
Sep 5 2002 | Request for extension of time filed By appellants {Fred Jones et al.,} asking to November 12, 2002 to file appellants' Opening Brief on the Merits. |
Sep 10 2002 | Extension of time granted To November 12, 2002 to file appellants' {Fred Jones et al.,} opening brief on the merits. |
Oct 31 2002 | Request for extension of time filed By Appellants asking until November 27, 2002 to file Appellants' Opening Brief on the Merits. |
Nov 4 2002 | Extension of time granted To November 27, 2002 to file Appellants {Fred Jones et al.,} Opening Brief on the Merits. |
Nov 27 2002 | Opening brief on the merits filed In Fresno by counsel for Appellants {Fred Jones et al.,}. |
Dec 19 2002 | Request for extension of time filed answer brief/merits to 3-12-03>>appellants Jonathan Neil & Assocs., etal |
Dec 27 2002 | Extension of time granted To March 12, 2003 to file appellants' {Jonathan Neil & Associates Incorporated et al.,} Answer Brief on the Merits. |
Mar 13 2003 | Request for judicial notice filed (in non-AA proceeding) appellants Jonathan Neil & Assocs, Inc. and Cal Eagle Ins. Company |
Mar 13 2003 | Received: oversize answer brief/merits w/applctn [rule 40k] |
Mar 19 2003 | Answer brief on the merits filed By counsel for Plaintiffs and Appellants {Jonathan Neil & Associates & Cal Eagle Ins. Co.}. |
Mar 20 2003 | Request for extension of time filed By appellants {Fred Jones et al.,} asking until May 2, 2003 to file Appellants' Reply Brief on the Merits. |
Mar 27 2003 | Extension of time granted To April 18, 2003 to file appellants' {Fred Jones et al.,}Reply Brief on the Merits. |
Apr 7 2003 | Request for extension of time filed by Appellants {Fred Jones et al.,} asking until April 25, 2003 to file Appellants' Reply Brief on the Merits. |
Apr 10 2003 | Extension of time granted On application of appellants Fred Jones, Mildred Jones and Fred Jones Trucking Inc., and good cause appearing, it is ordered that the time to serve and file appellants' reply brief on the merits is extended to and including April 25, 2003. |
Apr 25 2003 | Received: Appellants' {Fred Jones et al.,} oversized Reply Brief on the Merits. |
Apr 25 2003 | Application to file over-length brief filed Appellants' {Fred Jones et al.,}. |
Apr 30 2003 | Opposition filed By counsel for appellant {Jonathan Neil & Associates et al.,} to application to file an oversized Reply Brief on the Merits. |
May 2 2003 | Order filed The application of respondents Fred Jones, Mildred Jones and Fred Jones Trucking Inc., to file a Reply Brief on the Merits ix excess of the 4,200 word limit is denied. Respondents have until May 12, 2003 to file a Reply Brief that does not exceed 8,400 words. |
May 12 2003 | Reply brief filed (case fully briefed) in San Diego by counsel for respondents Fred Jones, Mildred Jones and Fred Jones Trucking |
May 27 2003 | Received application to file Amicus Curiae Brief Of Pacific Legal Foundation in support of Respondent {Jonathan Neil & Associates. |
May 30 2003 | Permission to file amicus curiae brief granted Pacific Legal Foundation in support of Janathan Neil & Associates Inc.. |
May 30 2003 | Amicus Curiae Brief filed by: Pacific Legal Foundation in support of Jonathan Neil & Associates Inc., Answer is due within twenty days. |
Jun 9 2003 | Received application to file Amicus Curiae Brief Of State Compensation Insurance Fund in support of Appellant {Cal Eagle Insurance Company}. |
Jun 10 2003 | Received application to file Amicus Curiae Brief California Automobile Assigned Risk Plan in support of Jonathan Neil & Associates Inc., et al., |
Jun 11 2003 | Received application to file Amicus Curiae Brief California Insurance Commissioner [applctn w/i brief] |
Jun 11 2003 | Received application to file Amicus Curiae Brief Consumer Attorneys of California [in support of appellants] |
Jun 11 2003 | Received application to file Amicus Curiae Brief California Workers' Compensation Institute, Association of California Insurance Companies and Fireman's Fund Insurance Company in support of Jonathan Neil & Associates Inc.. |
Jun 11 2003 | Received application to file Amicus Curiae Brief and one volume of Appendix of Non - California Cases and other authorities of State Mutual Automobile Insurance Company in support of Cal Eagle Insurance Company. |
Jun 12 2003 | Received application to file Amicus Curiae Brief Aetna Health of California and Aetna Life Insurance Comapny in support of Jonathan Neil & Associates Inc., and Cal Eagle Insurance Company. / 40(K). |
Jun 13 2003 | Permission to file amicus curiae brief granted California Automobile Assigned Risk in support of Jonathan Neil & Associates Inc., et al.,. |
Jun 13 2003 | Amicus Curiae Brief filed by: California Automobile Assigned Risk Plan in support of Jonathan Neil & Asociates Inc., et al.,. Answer is due within twenty days. |
Jun 13 2003 | Permission to file amicus curiae brief granted State Compensation Insurance Fund in support of Cal Eagle Insurance Company. |
Jun 13 2003 | Amicus Curiae Brief filed by: State Compensation Insurance Fund in support of Cal Eagle Insurance Company. Answer is due within twenty days. |
Jun 13 2003 | Permission to file amicus curiae brief granted California Workers' Compensation Insitute, Association of California Insurance Companies and Fireman's Fund Insurance Company in support of Jonathan Neil & Associates Inc.,. |
Jun 13 2003 | Amicus Curiae Brief filed by: California Workers' Compensation Institute, Association of California Insurance Companies and Fireman's Fund Insurance Company in support of Jonathan Neil & Associates Inc. Answer is due within twenty days. |
Jun 13 2003 | Permission to file amicus curiae brief granted State Farm Mutual Automobile Insurance Company in support of Cal Eagle Insurance Company. |
Jun 13 2003 | Amicus Curiae Brief filed by: State Farm Mutual Automobile Insurance Company in support of Cal Eagle Insurance Company. Answer is due within twenty days. |
Jun 13 2003 | Permission to file amicus curiae brief granted Aetna Health of California and Aetna Life Insurance Company in support of Jonathan Neil & Associates and Cal Eagle Insurance Company. |
Jun 13 2003 | Amicus Curiae Brief filed by: Aetna Health of California and Aetna Life Insurance Company in support of Jonathan Neil & Associates and Cal Eagle Insurance Company. Answer is due within twenty days. |
Jun 19 2003 | Response to amicus curiae brief filed By Appellants {Freddie Jones et al.,} to AC Brief of Pacific Legal Foundation. |
Jun 20 2003 | Permission to file amicus curiae brief granted California Insurance Commissioner in support of Jonathan Neil & Associates Inc., et al.,. |
Jun 20 2003 | Amicus Curiae Brief filed by: California Insurance Commissioner in support of Jonathan Neil & Associates Inc., et al. Answer is due within twenty days. |
Jun 20 2003 | Permission to file amicus curiae brief granted Consumer Attorneys of California in support of Freddie Jones et al., |
Jun 20 2003 | Amicus Curiae Brief filed by: Consumer Attorneys of California in support of Freddie Jones et al., Answer is due within twenty days. |
Jun 26 2003 | Request for extension of time filed and request to file consolidated Response to Amicus Curiae Brief by counsel for Appellants {Fred Jones et al.,}. Asking until August 25, 2003. |
Jun 30 2003 | Extension of time granted On application of appellants Fred Jones et al., and good cause appearing, it is ordered that the time to serve and file appellants' consolidated response to amicus curiae briefs is extended to and including August 25, 2003. |
Jul 1 2003 | Request for extension of time filed to file responses to ac briefs to 8-25-03>>appellants Jonathan Neil & Assocs, etal |
Jul 9 2003 | Extension of time granted To August 25, 2003 to file appellants' Jonathan Neil & Associates Inc., et al., to file Appellants' Responses to Amicus Curiae briefs. |
Aug 21 2003 | Request for extension of time filed By Appellants {Fred Jones et al.,} asking until September 8, 2003 to file Responses to AC Briefs. |
Aug 25 2003 | Response to amicus curiae brief filed to ac brief of Consumer Attys of Calif>>appellants Jonathan Neil & Assocs and Cal Eagle Insurance Company |
Aug 25 2003 | Response to amicus curiae brief filed to ac brief of Calif Insurance Commr>>appellants Jonathan Neil & Assocs and Cal Eagle Insurance Company |
Aug 26 2003 | Extension of time granted To September 8, 2003 to file Appellants' Fred Jones et al., Responses to amicus briefs filed by State Compensation Insurance Fund, Aetna Health of California & Aetna Health Life Insurance Company, California Worker's Compensation Institute, State Farm Mutual Automobile Insurance Company, California Automobile Assigned Risk Plan and The California Insurance Commissioner. |
Sep 8 2003 | Response to amicus curiae brief filed In San Diego By Appellants {Fred Jones et al.,} to AC Briefs filed by California Automobile Assigned Risk Plan, State Farm Mutual Automobile Insurance Company, State Compensation Insurance Fund, California Workers' Compensation Institute et al., and Aetna Health of California et al.,. |
Sep 8 2003 | Response to amicus curiae brief filed in San Diego By Appellants {Fred Jones et al.,} to AC Briefs filed by The California Insurance Commisioner, The California Automobile Assigned Risk Plan and State Farm Mutual Automobile insurance company. |
Sep 29 2003 | Received: Appellants' {Fred Jones et al.,} application to file Supplemental Brief and Supplemental Brief in Response to Appellants {Cal-Eagle Insurance} Response to AC Brief of California Insurance. Commissioner. |
Oct 1 2003 | Received: resps, Jonathan Neil & Assoc., Inc. and Cal Eagle Ins.' opposition to "The Jones Parties" application to file a supplemental response'brief, responding to "Cal Eagles" answer to an amicus brief, filed earlier. |
Oct 2 2003 | Order filed The application of appellants {Fred Jones et al.,} for permission to file a supplemental brief in response to appellant's {Cal Eagle Insurance Company} response to amicus curiae brief filed by the California Insurance Commissioner is herebe DENIED. |
Apr 28 2004 | Case ordered on calendar 6-2-04, L. A. @ 9:00 a.m. |
Jun 2 2004 | Cause argued and submitted |
Aug 5 2004 | Opinion filed: Judgment affirmed in full Further proceedings should be conducted in accord with the views expressed in this opinion. Opinion by Moreno, J. -- joined by George, C.J., Kennard, Werdegar, Chin, Brown, and *Doi Todd, JPT [*Kathryn Doi-Todd, Associate Justice, Court of Appeal, Second Appellate District, Division 2, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.] |
Aug 20 2004 | Rehearing petition filed In Fresno by counsel for Defendant/Appellant {Fred Jones et al.,}. |
Aug 20 2004 | Rehearing petition filed In Fresno by Cross-Defendant/Respondent {Johnsey Insurance Company}. |
Aug 25 2004 | Time extended to consider modification or rehearing To November 3, 2004. |
Sep 2 2004 | Received: request for modification of opinion on behalf of A/C THE INSURANCE COMMISIONER |
Sep 7 2004 | Received: Request for modification of opinion from Roxborough Pomerance & Nye, LLP. |
Sep 9 2004 | Received: Letter from counsel for appellants {Jonathan Neil & Associates et al.,} advising they have no-opposition to letter from The Insurance Commisioner requesting modification of opinion. |
Oct 20 2004 | Rehearing denied Opinion Modified. Baxter, J., was recused and did not participate. Werdegar, J., was absent and did not participate. |
Oct 20 2004 | Opinion modified - change in judgment |
Nov 22 2004 | Remittitur issued (civil case) |
Dec 2 2004 | Received: receipt for remittitur from 5 DCA. |
Dec 6 2004 | Note: Remittitur corrected to read "Each party is to bear its own costs on appeal." |
Briefs | |
Nov 27 2002 | Opening brief on the merits filed |
Mar 19 2003 | Answer brief on the merits filed |
May 12 2003 | Reply brief filed (case fully briefed) |
May 30 2003 | Amicus Curiae Brief filed by: |
Jun 13 2003 | Amicus Curiae Brief filed by: |
Jun 13 2003 | Amicus Curiae Brief filed by: |
Jun 13 2003 | Amicus Curiae Brief filed by: |
Jun 13 2003 | Amicus Curiae Brief filed by: |
Jun 13 2003 | Amicus Curiae Brief filed by: |
Jun 19 2003 | Response to amicus curiae brief filed |
Jun 20 2003 | Amicus Curiae Brief filed by: |
Jun 20 2003 | Amicus Curiae Brief filed by: |
Aug 25 2003 | Response to amicus curiae brief filed |
Aug 25 2003 | Response to amicus curiae brief filed |
Sep 8 2003 | Response to amicus curiae brief filed |
Sep 8 2003 | Response to amicus curiae brief filed |