 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Berghoff v. Gavrity7/31/2002
as a matter of law, where no breach of contract occurs, there can be no liability for breach of the implied covenant, and granted summary judgment. After the district court denied plaintiffs' motion for reconsideration, the Ninth Circuit Court of Appeals affirmed the summary judgment and denied plaintiffs' petition for rehearing and request for an en banc rehearing.
While their motion for reconsideration was pending in the federal district court, plaintiffs filed the complaint in this action against Revere and Donald J. Gavrity, Jr., a Revere manager in Los Angeles, alleging intentional and negligent misrepresentation by Revere and Gavrity in inducing BAFJ to buy the policies. Plaintiffs alleged Gavrity, "on behalf of himself and all other defendants," represented to plaintiffs that if Berghoff became disabled during the policy period, "defendants" would pay for the expense "incurred" in buying out his shares. Plaintiffs further alleged that defendants knew the representations were false when made and made the representations to induce plaintiffs to act in reliance thereon. Plaintiffs said they were unaware of the falsity of the representations and acted in reliance on them. Plaintiffs alleged they first learned of the falsity of the representations in August 1995 when Revere denied the claim. Plaintiffs alleged compensatory damages of $649,950.
The cause of action for negligent misrepresentation echoed the first cause of action, modified to charge that defendants had no reasonable ground for believing the representations were true when they were made.
Revere filed a removal motion which the federal district court denied on the ground that naming Gavrity defeated diversity jurisdiction, rejecting among other arguments Revere's claim that Gavrity was a sham defendant because under California law an insurance agent cannot be liable for tortious misrepresentation within the scope of his employment. The court wrote, "However, Plaintiffs have alleged both negligent misrepresentation and intentional misrepresentation. The case law in California is well settled that an insurance agent will not be responsible for negligent misrepresentation within the scope of the agent's duties. [Citations.] However, the case law is much less well-settled on the subject of intentional misrepresentation by the agent within the scope of the agent's duties. No state court has addressed intentional misrepresentation, and the Court notes that the default rule in California is that an agent will be responsible for intentional torts. [Citations.]" Acknowledging it might well occur that the agent cannot be personally liable for his intentional misrepresentation, the court added it was merely noting the issue was unsettled. For that reason, the court was required to "err in favor of remand."
In the superior court, Revere and Gavrity demurred to the complaint on the ground the current action was barred by the doctrine of res judicata. The trial court sustained with leave to amend the demurrer to the negligent misrepresentation claim against Gavrity. The court overruled the demurrer to the intentional misrepresentation claim against Gavrity. The trial court sustained Revere's demurrer to both causes of action with leave to amend.
Plaintiffs first amended complaint added a new paragraph 14: "On January 14, 1997, plaintiffs Berghoff and Rosenthal filed an action in California state court (hereafter `Berghoff I') for breach of contract, i.e., the Policy, and breach of the concomitant implied covenant of good faith and fair dealing, against defendant Revere and defendant Group. . . . " The first amended complaint also added a plaintiff, Abraham, Friedman & Johnson, Inc., the alleged success
Page 1 2 3 4 5 6 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|