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Tomassi v. Scarff12/28/2000
CERTIFIED FOR PUBLICATION
Reliance Insurance Company ("Reliance") appeals from an order denying its motion to vacate a judgment in a wrongful death action against its insured, Campbell Towing Company. The trial court determined that Reliance lacked standing as an "aggrieved" party within the meaning of Code of Civil Procedure section 663. We agree with the court's ruling and therefore affirm the order.
Background
Angelo Tomassi, Sr. and Christopher Moreno were aggressive competitors in the tow-truck business. Tomassi owned Great America Towing, Inc., while Moreno was a co-owner of Campbell Towing, Inc. Animosity had developed between the two over alleged breaches of their non-competition agreements and other issues. In addition to Moreno's business disputes with Tomassi, Moreno's wife had filed for divorce . Moreno had told her he would commit suicide if she continued with the dissolution proceedings.
On January 11, 1994, Moreno rode his motorcycle to Great America Towing and engaged Tomassi in conversation. A heated argument erupted, and Moreno shot Tomassi several times, killing him. Then Moreno went to the pharmacy where his wife worked and shot himself to death.
Tomassi's wife and sons sued Moreno's estate and Campbell Towing for wrongful death and negligent infliction of emotional distress. In January 1995 Campbell Towing tendered its defense to Reliance, and extensive correspondence took place over the next two years. During that period counsel for Campbell Towing kept Reliance informed of developments in the litigation and repeatedly renewed its requests for a defense. Reliance, however, continued to reject the tender on the ground that even if there was potential liability of Campbell Towing, it fell outside the coverage of the liability policy. Meanwhile, the litigation proceeded through active discovery, discovery orders and sanctions, and an unsuccessful motion for summary judgment.
Faced with Reliance's refusal to defend and the impending trial set for February 9, 1998, Campbell Towing entered into an agreement with plaintiffs which limited damages but guaranteed plaintiffs a recovery of at least $275,000. As defense counsel explained to Reliance, "The risk of a multimillion dollar judgment, with the resulting probability of Campbell Towing, Inc.'s bankruptcy , were unacceptable risks for my client to endure on its own." The parties thereafter waived jury trial and informed the court that trial would take one day or less. Plaintiffs submitted a trial brief asserting liability of Campbell Towing on the grounds of negligent failure to control Moreno and negligent failure to warn Tomassi that Moreno had threatened to kill him. Campbell Towing did not submit a trial brief.
The half-day trial on February 9, 1998, proceeded without a court reporter, by agreement of the parties. Plaintiffs' witnesses were not cross-examined and certain offers of proof were made without objection. At the conclusion of the trial, the court found Campbell Towing liable for wrongful death and negligent infliction of emotional distress.
In its statement of decision following the trial, the court stated that Campbell Towing had negligently failed to exercise reasonable care to control the conduct of Moreno and negligently failed to warn Tomassi of Moreno's threats. The court specifically found that the corporate officers, directors, and managerial employees of Campbell Towing knew of at least four separate business disputes between the company and its rival, Great America Towing. They also knew of Moreno's "volatile personality" and his "hatred" of Tomassi. The hatred and threats against Tomassi's life had resulted from the ant
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