Stanford Law School - Robert Crown Law Library

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.

---

Opinion Information

Date:	Docket Number:
Wed, 10/20/2004	S107855M

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

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