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Taylor v. Fireman''s Fund Insurance Co.3/23/1989
Plaintiff/appellant William J.R. Taylor (Taylor), personal representative of the Estate of Sharon Faye Taylor, brought an action seeking damages for breach of an automobile insurance contract under which Ms. Taylor was the named insured. Taylor appeals from the trial court's orders granting Fireman's Fund Insurance Company of
Canada's (Fireman's Fund-Canada) motion to dismiss and Fireman's Fund Insurance Company's (Fireman's Fund-U.S.) motion for summary judgment, and its denial of Taylor's motions to amend his complaint.
FACTS
Decedent Sharon Taylor purchased automobile insurance from Fireman's Fund-Canada while she was a Canadian resident. Her policy contained an Underinsured Motorist Endorsement with policy limits of $500,000. Fireman's Fund-Canada issued the policy in Canada, and the record does not indicate that any premiums were paid in Arizona. Sharon had moved to Arizona less than three months before the accident on October 28, 1982, which resulted in her death several days later. Appellant, Taylor, is a Canadian resident. All of the potential heirs of Sharon Taylor's estate reside in and are citizens of Canada. Fireman's Fund-Canada is a foreign corporation with its home office in Toronto, Canada. It is not authorized to conduct business in Arizona, does not advertise, solicit applications for insurance, issue policies, have offices or agents or otherwise conduct business in Arizona. Fireman's Fund-U.S., a California corporation authorized to do business in Arizona, was not a party to any agreement with Ms. Taylor. Its Phoenix office was retained by Fireman's Fund-Canada to investigate the factual circumstances of the accident. It was also authorized to settle this claim up to $5,000. Fireman's Fund-U.S.'s Phoenix office may also have investigated one or two prior Fireman's Fund-Canada claims in Arizona. The exact nature of the relationship between Fireman's Fund-Canada and Fireman's Fund-U.S. is unclear from the record. An adjustment manual or portions thereof was purportedly available for clarification on that point. It was not included in the record on appeal. Even if available, it is uncertain that it was, in fact, admitted in the trial court.
Beginning shortly after Sharon Taylor's accident, Taylor's attorney communicated directly and extensively with both Fireman's Fund-U.S. and Fireman's Fund-Canada. Apparently neither Fireman's Fund-U.S. nor Fireman's Fund-Canada made any payments to the estate under Sharon Taylor's insurance policy.
Taylor, as personal representative of the decedent's estate, prosecuted a wrongful death action in Maricopa County. Judgment for Taylor in that action was entered in November 1985 in the amount of $284,431.50, plus costs. Taylor collected the maximum policy limits of $50,000 under the insured tortfeasor's insurance policy and requested the difference between the amount collected and the judgment to be paid by appellees pursuant to Sharon Taylor's underinsured motorist endorsement issued by Fireman's Fund-Canada.
PROCEDURE
In 1986, Taylor filed the complaint in the instant action, alleging that defendants had refused to adjust the claim and seeking damages for breach of contract. Fireman's Fund-Canada filed a motion to dismiss for lack of personal jurisdiction. Fireman's Fund-U.S. filed a motion for summary judgment on the ground that it was not a party to any agreement with Sharon Taylor, but was merely an agent for Fireman's Fund-Canada. Following a consolidated hearing, the trial court granted both motions. The court also denied Taylor's motion to amend his complaint to allege a breach of an implied covenant of good faith and fai
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