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Goodstein v. Doctors' Company1/31/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Wallace A. Goodstein, M.D., challenges summary judgment in favor of respondents The Doctors' Company and The Doctors' Company Insurance Services, Inc. We affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
This is the third time this case has come before us on matters relevant to the current appeal. We summarize the procedural history culminating in our first two decisions before describing the facts pertinent to the present appeal.
On May 16, 1995, Goodstein filed a complaint against "The Doctors' Company, Inc." and Doe defendants, containing a claim for declaratory relief and two claims for bad faith termination of an insurance policy. The complaint alleged that "The Doctors' Company, Inc.," had issued Goodstein a medical malpractice insurance policy, and that it had improperly canceled the policy as of February 1, 1994. This complaint was never served.
On June 15, 1995, Goodstein filed a first amended complaint. The only difference between the complaints was that the first amended complaint substituted The Doctors' Management Company, Inc. (TDMCI), as the sole named defendant. The first amended complaint was served on TDMCI on June 26, 1995.
On July 26, 1995, TDMCI answered the first amended complaint. The answer denied all the allegations in the complaint and raised several defenses, but did not expressly allege that TDMCI was not the insurer on Goodstein's policy.
On April 4, 1997, TDMCI filed a motion for summary judgment or adjudication. In support of this motion, TDMCI submitted, inter alia, a declaration from Molly L. Farrell, who identified herself as a director of claims for TDMCI. Farrell stated that Goodstein was insured with TDMCI policy No. 0028206, and that TDMCI had provided a defense and indemnity to Goodstein with respect to litigation against Goodstein. On May 2, 1997, Judge Richard G. Harris denied summary judgment, but granted summary adjudication with respect to Goodstein's claim for declaratory relief and one of his bad faith claims.
On or about August 14, 1997, TDMCI filed a renewed motion for summary judgment. On August 29, 1997, Judge Harris denied the renewed motion.
Goodstein dismissed the unserved Doe defendants on December 10, 1997. In July 1998, trial by jury before Judge David A. Horowitz began in Goodstein's action.
Following the opening statement by Herbert Papenfuss, who represents Goodstein, TDMCI's counsel made a motion for non-suit, arguing that Papenfuss's opening statement referred exclusively to "The Doctors' Company" as the defendant insurer, that they did not represent this entity, and that TDMCI did not issue insurance. Papenfuss opposed the motion. Judge Horowitz granted the motion for non-suit.
Goodstein subsequently filed a motion for a new trial and a motion under Code of Civil Procedure section 473, for relief from the dismissal of the Doe defendants or for leave to amend the complaint and proof of service to add "The Doctors' Company, Inc." as a defendant. On August 20, 1998, Judge Horowitz denied Goodstein's motions, and entered judgment in TDMCI's favor.
In an unpublished opinion we reversed, concluding that because TDMCI had secured non-suit by means of representations contrary to declarations that it had relied upon to obtain summary adjudication, non-suit should be
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