Salas v. Salas













Filed 10/05/10 Salas v. Salas CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS





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opinion has not been certified for publication or ordered published for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 THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

SHAUN SALAS, Plaintiff and Appellant; GILBERT SALAS, Plaintiff and Respondent, v. MERCURY INSURANCE COMPANY, Defendant and Appellant.

G042194 (Super. Ct. No. 30-2008-00102496) O P I N I O N

Appeals from a judgment
of the Superior Court
of Orange
County, David T. McEachen and Kirk H. Nakamura,
Judges. Affirmed in part, reversed in
part, and remanded.

Merritt
L. McKeon for Plaintiff and Appellant and for Plaintiff and Respondent.

O'Connor,
Schmeltzer & O'Connor, Lee P. O'Connor and Timothy J. O'Connor for
Defendant and Appellant.

*
* *

Introduction

Shaun
Salas was involved in an automobile accident, while driving a vehicle owned by
his father, Gilbert Salas. (To avoid
confusion, we will refer to the members of the Salas family by their first
names; we intend no disrespect.) Shaun's
automobile insurance carrier, Mercury Insurance Company (Mercury), denied
coverage for the accident on the ground Gilbert's car was not covered under the
terms of the policy. Shaun sued for tortious breach of the insurance policy. The trial court granted a motion for summary
adjudication in favor of Mercury of Shaun's bad faith claim. Following a bench trial, the court found
Mercury had breached the insurance contract, and awarded damages to Shaun and
Gilbert. Shaun appealed, and Mercury
cross‑appealed.

We
conclude the trial court did not err in granting the motion for summary
adjudication. Because Shaun's two
claims--breach of contract and bad faith--were combined in one cause of action,
the court could properly grant summary adjudication of the bad faith
claim. A genuine dispute as to coverage
was established by Mercury, and the court properly determined Shaun could not
state a claim for bad faith on the part of Mercury.

We
further conclude the trial court did not err by denying Shaun's motion to amend
the complaint to add the bad faith claim back into the complaint immediately
before trial.

Finally,
we conclude the Mercury insurance policy did not provide coverage for the
accident.

With
respect to Shaun's appeal, the judgment is affirmed. With respect to Mercury's cross‑appeal,
the judgment is reversed and remanded with directions to enter judgment in
favor of Mercury on the cross-appeal.



Statement of Facts and Procedural History

Mercury
issued an automobile insurance policy to Shaun, covering the period from April 20, 2007 to October 20, 2007 (the Mercury
policy). The only vehicle listed in the
policy declarations was Shaun's 1993 Honda Prelude. On May 5, 2007, while driving a 2006 Toyota
Tundra owned by his parents, Gilbert and Marilyn, Shaun (then age 26)
collided with a car driven by Teresa Huyn Nguyen (the Nguyen accident).[1]

On
the date of the accident, Gilbert and Marilyn's address was 20666 Calle De
La Ladera, in Yorba Linda. Shaun lived in a studio located behind, and
separate from, the main house in which Gilbert and Marilyn lived. The studio does not have a separate mailing
address, nor does it have separate utilities.

Nguyen's
insurance carrier paid insurance benefits to her, and then filed a lawsuit
against Shaun and Gilbert for subrogation.
Mercury denied coverage to Shaun for the accident because the Toyota
Tundra was not a listed vehicle on the Mercury policy, nor was it covered by
the Mercury policy as an owned or nonowned automobile. Shaun sued Mercury for tortious breach of the
insurance contract.

Mercury
filed a motion for summary judgment
or, in the alternative, summary adjudication.
Judge David T. McEachen denied the motion for summary judgment, but
granted summary adjudication of the claim for bad faith.

In
February 2009, at the start of trial, Shaun filed a motion to amend the
complaint to add the cause of action for bad faith that had been summarily
adjudicated against him. The trial court
denied Shaun's motion. The parties
stipulated to add Gilbert as a plaintiff to the complaint.

A
bench trial was conducted based on the parties' trial briefs, stipulated facts,
and evidence. Judge Kirk H. Nakamura
issued a tentative decision on March 6,
2009, finding in favor of Shaun and against Mercury.[2] Judgment in favor of Shaun and Gilbert, and
against Mercury, in the amount of $26,250, was entered on April 9, 2009.
Shaun timely appealed. Mercury
filed a timely notice of cross‑appeal.




Discussion

I.

>Did
Gilbert File a Timely Appealâ€