Modification: Infinity Select Insurance Co. v. Superior Court (Cal Leduc)

INFINITY SELECT INSURANCE CO. et al.,

Petitioners,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Respondent;

CAL LEDUC et al.,

Real Parties in Interest.

No. F085014

(Super. Ct. No. 19CECG01278 )

California Court of Appeal

Fifth Appellate District

Filed August 30, 2023

Order Modifying Opinion And Denying Rehearing

[No Change In Judgement]

THE COURT:

It is so ordered that the partially published opinion filed on August 8, 2023, be modified as follows:

1. After headings I., II., VI., VII., and VIII. of the Discussion add the following unnumbered footnote:

* See footnote, ante, page 1.

2. At the end of the first full paragraph on page 7, after the sentence ending in "box was checked," add as footnote 7 the following footnote, which will require renumbering of all subsequent footnotes:

7 In its writ petition, Infinity alleged "Guerra's application did not ask Infinity to file a Form 65 certificate of insurance with the DMV .... In fact, in response to the application's inquiry whether any DMV filing was necessary, the 'No' box was checked." Relevant to that allegation, plaintiffs responded, "Admit the broker/producer probably supplied the answer to Infinity's question 'State Filing' 'yes' or 'no' without understanding 'no' meant Infinity would be violating the law." We deem the allegation admitted. (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1101 [when a party fails to deny a verified allegation, it is deemed admitted].) For the sake of precision, the referenced question and answer on the application form read, "DMV/PUC Filing ___Yes X  No".

In their writ return, plaintiffs denied that Guerra, himself, completed the application form.

3. On page 11, the second sentence of the paragraph under heading III. of the Discussion beginning "The undisputed facts," the words "that" are replaced with "whether," so the sentence now reads:

The undisputed facts, as presented to us, do not indicate whether Guerra ever requested insurance in order to comply with the MCPPA, or whether he requested Infinity file a DMV Form 65 certificate of insurance or issue a DMV Form 67 policy endorsement.

4. On page 11, the last sentence of the paragraph under heading III. of the Discussion beginning "Rather, Infinity issued," is deleted and replaced with the following sentence:

In short, this is not a case premised on alleged unmet expectations of Guerra or alleged misrepresentations by Infinity.

5. On page 12, the first sentence of the second paragraph beginning "To obtain a valid motor," is deleted and replaced with the following sentence:

To receive a valid motor carrier permit, a motor carrier of property must, among other things, obtain "[e]vidence of financial responsibility."

There is no change in the judgment.

Real parties in interests petition for rehearing filed on August 24, 2023, is denied.

FRANSON, J.

WE CONCUR:

LEVY, Acting P. J.

SMITH, J.