Savvy Property Management v. United National Ins. Co.
After tenants sued David Behrend, Savvy Property Management, LLC, and Melissa Bederman (plaintiffs), among others, alleging uninhabitable conditions in their building, plaintiffs tendered their defense and indemnity to United National Insurance Company (United). United agreed to provide a defense subject to a complete reservation of rights and appointed three separate attorneys to represent each of the three plaintiffs. Plaintiffs and United disagreed about whether a conflict of interest existed requiring the appointment of independent or Cumis counsel[1] and so in the context of the instant declaratory relief action, which plaintiffs brought against United, plaintiffs petitioned the trial court for an order compelling arbitration of the amount of Cumis counsel fees pursuant to Civil Code section 2860, subdivision (c).[2] The trial court denied the motion and plaintiffs appeal. (Code Civ. Proc., 1294, subd. (a).) We hold that the trial court correctly denied the motion to compel arbitration of the amount of Cumis counsel fees because at the time plaintiffs filed their petition, there had been no determination that a conflict of interest actually existed to justify the appointment of independent counsel. Accordingly, we affirm the order.
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