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1 JONATHAN H. COLMAN (SBN 93652)
SCOTT M. KOPPEL (SBN 110747)
2 COLMAN PERKINS LAW GROUP
15615 ALTON PARKWAY, SUITE 370
3 IRVINE, CA 92618
TELEPHONE (949)261-8100
FACSIMILE (949)261-8102
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Attorneys for Plaintiff
5 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES – CHATSWORTH COURTHOUSE
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11 STATE FARM MUTUAL AUTOMOBILE Case No.:
INSURANCE COMPANY
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Plaintiff, COMPLAINT FOR DECLARATORY
13 vs. RELIEF
14 GERARD STANTON SMITH, an individual
and DOES 1 through 20, inclusive,
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Defendants.
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17 Plaintiff STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, hereby
18 alleges as follows:
19 1. At all times herein relevant, Plaintiff STATE FARM MUTUAL AUTOMOBILE
20 INSURANCE COMPANY (“Plaintiff” or “State Farm”) was a corporation duly qualified to do
21 business in the State of California as an insurance company and was and is authorized to engage in
22 business in the State of California, County of Los Angeles.
23 2. Plaintiff is informed and believes, and thereon alleges, that at all times herein
24 relevant, GERARD STANTON SMITH, (“Defendant/Insured” or “Mr. Smith”), was and is a
25 resident of the County of Los Angeles, State of California.
26 3. Plaintiff is ignorant of the true names and capacities of the individuals or entities
27 sued herein as Does 1 through 20, who may have been involved in the acts alleged herein. Plaintiff
28 alleges that each of the DOE Defendants sued herein is legally responsible in some manner for the
1
COMPLAINT FOR DECLARATORY RELIEF
1 events and happenings referred to herein, and the Plaintiff’s damages as alleged were proximately
2 caused by their conduct. Plaintiff therefore sues said defendants by such fictitious names and will
3 seek leave of court to amend this Complaint to show their true names and capacities when the same
4 has been ascertained.
5 4. At all times herein, Defendants and each of them were the agents, servants, and
6 employees of each defendant, and in doing the things herein described, were acting within the course
7 and scope of their authority as such agents, servants, and employees.
8 BACKGROUND FACTS
9 5. On July 20, 2023, at or about 1:43 p.m., State Farm issued a policy (“Policy”) of
10 automobile insurance as is more particularly described herein to Defendant/Insured Gerard Smith.
11 The insured vehicle on the Policy was a 2007 Lexus LS 460, VIN ending in 13228.
12 6. On July 25, 2023, Mr. Smith reported a claim to State Farm advising that on July 21,
13 2023, at 12:00 p.m., he was rear ended by an unidentified vehicle at the intersection of Reseda
14 Boulevard and Roscoe Boulevard in Northridge, California. The initial impact reportedly pushed
15 the insured vehicle into a retaining wall. The responsible party then reportedly fled the scene.
16 7. On July 21, 2023 Mr. Smith filed a counter Traffic Crash Report with the California
17 Highway Patrol stating that the subject accident occurred on July 20, 2023, at 10:00 p.m. (the same
18 date that Mr. Smith’s Policy incepted with State Farm)
19 8. According to the Traffic Crash Report, Mr. Smith was the driver of a 2007 Lexus LS
20 460 at the time of the subject accident. The Traffic Crash Report further provides that Gerard Smith
21 stated that he was at a stopped at a solid red light in the southbound No.1 lane on Reseda Boulevard
22 at the intersection with Roscoe Boulevard when he was struck from behind by another vehicle.
23 Defendant Gerard Stanton Smith is further quoted in the Traffic Crash Report as stating that the
24 driver of the adverse vehicle failed to stop and identify himself/herself, and that the adverse vehicle
25 drove around Defendant Smith’s vehicle and proceeded south on Reseda Boulevard.
26 9. On July 25, 2023, Defendant/Insured first reported the subject July 21, 2023 accident
27 to State Farm.
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2
COMPLAINT FOR DECLARATORY RELIEF
1 10. On July 28, 2023, State Farm received notice from Sweet James Accident Attorneys
2 (hereinafter referred to as “Claimant’s Counsel”) that their office had been retained to represent
3 Defendant/Insured for personal injury and property damage claims as a result of the subject accident.
4 11. On August 7, 2023 State Farm acknowledged receipt of Claimant’s Counsel’s
5 correspondence and provided notice regarding the claims process, policy coverages and conditions.
6 12. On August 17, 2023, a representative of State Farm spoke with Claimant’s Counsel
7 and informed Claimant’s Counsel as to what would be needed to expedite the claims process
8 including a recorded statement from Defendant/Insured. Additionally, the State Farm representative
9 asked to inspect the subject vehicle and made repeated requests for the location of the subject
10 vehicle.
11 13. On August 18, 2023 State Farm sent correspondence to Claimant’s Counsel advising
12 that they would be handling the Defendant’s/Insured’s claim under Reservation of Rights. On
13 September 7, 2023 correspondence was sent to Claimant’s Counsel reiterating State Farm’s request
14 for information including a recorded statement.
15 14. During the claim investigation, questions arose regarding the facts of the reported
16 loss and the damage claimed to the Defendant’s/Insured’s vehicle and State Farm requested that Mr.
17 Smith sign an authorization to obtain an accident reconstruction evaluation and to inspect the 2007
18 Lexus LS 460’s Event Date Recorder (“EDR.)
19 15. Due to concerns with the loss facts as reported by the Defendant/Insured and the
20 procurement of coverage on the 2007 Lexus LS 460, Plaintiff referred the matter to counsel (Colman
21 Perkins Law Group, hereinafter referred to as “Colman Perkins”) in order to secure the Defendant
22 Insured’s Examination Under Oath (“EUO”) and relevant documents.
23 16. On September 22, 2023, notice was emailed to the Claimant’s Counsel proposing
24 October 18, 2023, as the date for Mr. Smith’s Examination Under Oath. No response was received.
25 On September 25, 2023, notice was sent to Claimant’s Counsel advising that Mr. Smith’s
26 Examination Under Oath had been scheduled for October 18, 2023, via remote appearance. Notice
27 was sent via First Class Mail, Certified Mail, and E-Mail.
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3
COMPLAINT FOR DECLARATORY RELIEF
1 17. On September 25, 2023, Claimant’s Counsel sent Colman Perkins an Uninsured
2 Motorist Bodily Injury policy limits demand without acknowledging or responding to any of State
3 Farm’s and/or Colman Perkins’ correspondence requesting the Examination Under Oath, Signed
4 EDR and Medical Authorizations, or requested documents.
5 18. In response to Claimant’s Counsel’s policy limits demand, notice was sent by
6 Colman Perkins to Claimant’s Counsel proposing October 3, 2023 as an earlier date for the Mr.
7 Smith’s EUO in order to allow State Farm to evaluate Mr. Smith’s claim and respond to the policy
8 limits demand in some manner, However, no response was received.
9 19. As a result of Claimant’s Counsel’s failure to respond to Colman Perkins’ request
10 for an earlier date for the EUO of Mr. Smith, Mr. Smith’s Examination Under Oath was unilaterally
11 rescheduled for October 3, 2023. Written notice of the October 3, 2023 EUO was provided to
12 Claimant’s Counsel by way of a September 29, 2023 letter to Claimant’s Counsel and an e-mail to
13 Claimant’s counsel on that same date. In response, Claimant’s Counsel sent an e-mail to Colman
14 Perkins on October 2, 2023, advising that Mr. Smith would not be able to attend his Examination
15 Under Oath on October 3, 2024.
16 20. Claimant’s Counsel then sent Coleman Perkins an e-mail on October 2, 2023,
17 advising that Mr. Smith had undergone a medical procedure and would not be able to attend his
18 Examination Under Oath due to his need to recover from that medical procedure. Claimant’s
19 Counsel apologized and agreed to speak with Mr. Smith to obtain available dates for Mr. Smith’s
20 Examination Under Oath. In reliance on Claimant’s Counsel’s October 2, 2023 e-mail and
21 concomitant agreement to provide alternative dates, Colman Perkins cancelled the court reporter
22 scheduled to attend Mr. Smith’s Examination Under Oath on October 3, 2023.
23 21. Colman Perkins then sent Claimant’s Counsel an October 12, 2023 e-mail requesting
24 three (3) alternative dates in October 2023 for your Mr. Smith’s Examination Under Oath.
25 22. On October 13, 2023, and without providing the promised alternative dates for Mr.
26 Smith’s EUO, Claimant’s Counsel sent a “Formal Demand for Arbitration” to counsel for Colman
27 Perkins (with a myriad of written discovery), without mention of Mr. Smith’s EUO. Significantly,
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4
COMPLAINT FOR DECLARATORY RELIEF
1 that “Formal Demand for Arbitration” was not sent in compliance with the requirements of
2 Insurance Code, Section 11580.2 (i)(1)(C).
3 23. On November 7, 2023, a response was sent by Colman Perkins to Claimant’s Counsel
4 via First Class Mail and E-Mail requesting withdrawal of Mr. Smith’s premature and improperly
5 served “Formal Demand for Arbitration” and demanding alternative dates and times Mr. Smith’s
6 Examination Under Oath. There was no response from Claimant’s Counsel.
7 23. Mr. Smith’s Examination Under Oath and an associated production of documents
8 relevant to his claim was unilaterally scheduled by Colman Perkins for December 7, 2023. Written
9 notice of that EUO and request for production of documents was provided to Claimant’s Counsel
10 by way of a November 20, 2023 letter sent via First Class Mail, E-Mail and Facsimile.
11 Defendant/Insured failed to attend his Examination Under Oath on December 7, 2023, or request an
12 alternative date for that Examination Under Oath.
13 24. On November 30, 2023, and prior to the proper service of the “Formal Demand for
14 Arbitration”, Claimant’s Counsel offered to have Mr. Smith submit to an uninsured motorist
15 arbitration deposition in lieu of the Examination Under Oath previously requested by State Farm.
16 Colman Perkins rejected this offer due for the following reasons:
17 a) Uninsured motorist arbitration had not been properly initiated;
18 b) Claimant’s Counsel could not provide any legal, contractual, or factual grounds for
19 the contention that Claimant’s Counsel could obviate the need for Defendant/Insured to fulfill
20 his contractual obligation to submit to an Examination Under Oath by prematurely offering
21 to submit to a deposition, as not such authority exists;
22 c) Forcing State Farm to waive its right to a later deposition in order to obtain Mr.
23 Smith’s Examination Under Oath would be prejudicial to State Farm’s right to obtain an
24 Examination Under Oath (and the production of documents) to determine coverage issues
25 before proceeding to uninsured motorist arbitration and prejudicial to State Farm’s right to
26 take Mr. Smith’s deposition (if necessary) after conducting written discovery and
27 subpoenaing Mr. Smith’s relevant records; and
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5
COMPLAINT FOR DECLARATORY RELIEF
1 d) Forcing State Farm to waive its right to a later deposition in order to obtain Mr.
2 Smith’s Examination Under Oath would vitiate the reason for the contractual provision
3 allowing the insurer to conduct an Examination Under Oath upon the submission of a claim
4 (e.g., one reason for such provisions is to allow the insurer to investigate coverage issues)
5 before proceeding to uninsured motorist arbitration.
6 25. On January 25, 2024, notice was sent rescheduling Mr. Smith’s Examination Under
7 Oath for February 22, 2024, at 1:30 p.m., and reiterating Colman Perkins’ prior request for
8 documents, in order to afford Mr. Smith a second opportunity to comply with his contractual
9 obligations. Defendant/Insured Gerard Stanton Smith failed to appear for his Examination Under
10 Oath on February 22, 2024.
11 26. An actual controversy has arisen and presently exists between Plaintiff and
12 Defendant/Insured Gerard Stanton Smith in connection with claims under the Policy, based on Mr.
13 Smith’s refusal to comply with his duties under the subject Policy, impeding State Farm’s
14 contractual right to discover the facts and documents necessary to evaluate Mr. Smith’s claim prior
15 to proceeding to uninsured motorist arbitration, if necessary.
16 27. Plaintiff now brings this Declaratory Relief action, contending that coverage under
17 the Policy should not be afforded as the Defendant Insured is refusing to comply with the required
18 conditions under his policy of insurance, which are expressly stated in the subject Policy to be a
19 condition precedent to coverage.
20 THE POLICY OF INSURANCE
21 28, On or about July 20, 2023, State Farm issued a policy of automobile insurance to
22 named insured Gerard Stanton Smith, Policy Number 779 6361-A20-75 (“Policy”). The subject
23 Policy provided (in relevant part) uninsured motorist bodily injury coverage in the amount of
24 $25,000 per person / $50,000 per accident. The Policy also provided collision coverage for physical
25 damage with a $1,000.00 deductible to the listed 2007 Lexus ES350 involved in the subject traffic
26 collision. A true and accurate copy of the Policy is attached as Exhibit 1.
27 29. As it relates to the insured’s duties when submitting a claim for benefits, the subject
28 Policy provides as follows:
6
COMPLAINT FOR DECLARATORY RELIEF
1 INSURED’S DUTIES
2 1. Notice to Us of an Accident or Loss
3 The insured must give us or one of our agent’s notice of the accident
4 or loss
5 as soon as reasonably possible. The notice must give us:
6 a. your name;
7 b. the names and addresses of all persons involved in the accident or loss;
8 c. the hour, date, place, and facts of the accident or loss; and
9 d. the names and addresses of witnesses to the accident or loss.
10 3. Insured’s Duty to Cooperate with Us
11 a. The insured must cooperate with us and, when asked, assist us in:
12 (1) making settlements;
13 (2) securing and giving evidence; and
14 (3) attending, and getting witnesses to attend, depositions, hearings, and
15 trials.
16 b. The insured must not, except at his or her own cost, voluntarily:
17 (1) make any payment to others; or
18 (2) assume any obligation to others unless authorized by the terms of this
19 policy.
20 c. Any person or organization making claim under this policy must, when
21 we require, give us proof of loss on forms we furnish.
22 4. Questioning Under Oath
23 Under:
24 a. Liability Coverage, each insured;
25 b. Medical Payments Coverage, Uninsured Motor Vehicle Coverage, Death,
26 Dismemberment and Loss of Sight Coverage, or Loss of Earnings Coverage,
27 each insured, or any other person or organization making a claim or seeking
28 payment;
7
COMPLAINT FOR DECLARATORY RELIEF
1 Must, at our option, submit to an examination under oath, provide a statement
2 under oath, or do both, as reasonably often as we require. Such person or
3 organization must answer questions under oath, asked by anyone we name,
4 and sign copies of the answers. We may require each person or organization
5 answering questions under oath to answer the questions with only that
6 person’s or organizations legal representative, our representatives, any
7 person, or persons designated by us to record the questions and answers, and
8 no other person present.
9 5. Other Duties Under the Physical Damage Coverages
10 When there is a loss, you or the owner of the covered vehicle must:
11 a. protect the covered vehicle from additional damage. We will pay any
12 reasonable expense incurred to do so that is reported to us;
13 b. make a prompt report to the police when the loss is the result of theft;
14 c. allow us to:
15 (1) inspect any damaged property before its repair or disposal;
16 (2) test any part or equipment before that part or equipment is
17 removed or repaired; and
18 (3) move the covered vehicle at our expense in order to conduct such
19 inspection or testing;
20 d. provide us all:
21 (1) records;
22 (2) receipts; and
23 (3) invoices that we request and allow us to make copies; and
24 e. not abandon the covered vehicle to us.
25 30. As it relates to the rationale for the contractual requirement that the insured submit
26 to an Examination Under Oath as a condition precedent to obtaining coverage, and the effect of the
27 insured’s failure to comply with his duties under the subject Policy, the applicable Policy provides
28 as follows (see Page 32 of Exhibit 1):
8
COMPLAINT FOR DECLARATORY RELIEF
1 GENERAL TERMS
2 12. Concealment or Fraud
3 There is no coverage under this policy if you or any other person insured under this
4 policy has made false statements with the intent to conceal or misrepresent any material
5 fact or circumstance in connection with any claim under this policy. Mr. Smith was sent
6 multiple correspondence requesting that he not only appear for an examination under oath,
7 but that he also provide documents which are material to this investigation. Defendant
8 Insured has failed to cooperate and provide documents thus prejudicing Plaintiff’s ability
9 to conduct its investigation. Moreover, as previously indicated, the facts and evidence
10 suggest that the loss did not occur as alleged, suggesting misrepresentations may have been
11 made in the presentation of the claim.
12 14. Legal Action Against Us
13 Legal action may not be brought against us until there has been full compliance with
14 all the provisions of this policy.
15 31. Mr. Smith and his counsel were sent multiple letters and e-mails requesting that he
16 not only appear for an examination under oath, but that he also provide documents which are
17 material to this investigation. Defendant/Insured Gerard Stanton Smith has failed to cooperate and
18 provide documents thus prejudicing Plaintiff’s ability to conduct its investigation.
19 32. Moreover, as previously indicated, facts and evidence suggest that there are bona
20 fide factual and legal issues that need to be resolved before coverage can be affirmed and before this
21 matter can proceed to uninsured motorist arbitration (if necessary). California law provides that
22 coverage issues are not subject to uninsured motorist arbitration.
23 FIRST CAUSE OF ACTION
24 DECLARATORY RELIEF AGAINST ALL DEFENDANTS
25 33. Plaintiff incorporates by reference Paragraphs 1 through 32 of this Complaint as
26 though fully set forth herein.
27 ///
28 ///
9
COMPLAINT FOR DECLARATORY RELIEF
1 34. An actual controversy has arisen and now exists between Plaintiff State Farm and
2 Defendant/Insured Gerard Stanton Smith as to the existence of coverage available under the subject
3 Policy.
4 35. An actual controversy has arisen and now exists between Plaintiff State Farm and
5 Defendant/Insured Gerard Stanton Smith as to Plaintiff State Farm’s duty to proceed to uninsured
6 motorist arbitration and participate in uninsured motorist arbitration discovery in light of the failure
7 of Defendant/Insured’s failure to comply with his contractual obligations under the subject Policy.
8 36. Defendant/Insured Gerard Stanton Smith’s intentional and deliberate lack of
9 cooperation has prejudiced Plaintiff’s ability to investigate the subject claim. Plaintiff has acted
10 diligently to obtain Mr. Smith ‘s cooperation and is prejudiced by his intentional and deliberate lack
11 of cooperation.
12 37. An actual controversy has arisen between the parties hereto with respect to the
13 Defendant/Insured Gerard Stanton Smith’s duty to comply with his contractual duties to submit to
14 an Examination Under Oath and produce documents relevant to his claims and Plaintiff’s duty to
15 proceed to uninsured motorist arbitration and engage in uninsured motorist discovery (despite Mr.
16 Smith’s failure to comply with his contractual duties). Plaintiff is entitled to have this Honorable
17 Court decide the obligations of Plaintiff and Defendant and each of them and to have this Court
18 render its judgement of declaratory relief regarding the issues stated hereinabove.
19 38. Plaintiff has no adequate remedy at law to resolve the above controversy.
20 39. For the foregoing reasons, Plaintiff seeks a court determination under CCP §1060
21 whether coverage is available under the Policy, regarding Defendant/Insured Gerard Stanton
22 Smith’s duty to comply with his contractual duties to submit to an Examination Under Oath and
23 produce documents relevant to his claims, and regarding Plaintiff’s duty to proceed to uninsured
24 motorist arbitration and engage in uninsured motorist discovery
25 WHEREFORE, Plaintiff State Farm prays for relief as follows:
26 1. For a judicial declaration that no collision coverage, rental car coverage or uninsured
27 motorist bodily injury coverage is owed to the Defendant Insured due to his refusal to
28 comply with his obligations under the policy.
10
COMPLAINT FOR DECLARATORY RELIEF
1 2. For a judicial declaration providing a stay on any uninsured motorist arbitration
2 proceedings and any uninsured motorist arbitration discovery until Plaintiff has
3 complied with his contractual duties under the subject Policy;
4 3. That judgment be granted in favor of State Farm; and
5 4. For such other relief as this Court may deem just and proper.
6
Dated: May 7, 2024 COLMAN PERKINS LAW GROUP
7
8
BY:_____________________________________
9 JONATHAN H. COLMAN
SCOTT M KOPPEL
10 Attorneys for Plaintiff
STATE FARM MUTUAL AUTOMOBILE
11 INSURANCE COMPANY
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COMPLAINT FOR DECLARATORY RELIEF
EXHIBIT “1”
Please read the policy carefully. If there is an
accident, contact your State Farm agent or one
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California
Policy Form 9805B
CONTENTS
THIS POLICY ..................................................... 3 Deciding Fault and Amount.............................. 17
Limits and Loss Settlement .............................. 17
DEFINITIONS..................................................... 4
Exclusions ........................................................ 18
LIABILITY COVERAGE .................................. 6 If Other Uninsured Motor Vehicle Property
Damage Coverage Applies ................................. 18
Additional Definition ......................................... 6 Our Payment Options ....................................... 18
Insuring Agreement............................................ 6
Supplementary Payments ................................... 6 PHYSICAL DAMAGE COVERAGES ............ 18
Limits ................................................................. 7 Additional Definitions ...................................... 18
Nonduplication................................................... 7 Insuring Agreements ........................................ 19
Exclusions .......................................................... 7 Supplementary Payments – Comprehensive
If Other Liability Coverage Applies .................. 8 Coverage and Collision Coverage .................... 20
Required Out-of-State Liability Coverage ......... 9 Limits and Loss Settlement – Comprehensive
Financial Responsibility Certification ............... 9 Coverage and Collision Coverage ...................... 20
Limits – Car Rental and Travel Expenses
MEDICAL PAYMENTS COVERAGE .............. 9 Coverage .......................................................... 22
Nonduplication ................................................. 22
Additional Definitions ....................................... 9 Exclusions ........................................................ 22
Insuring Agreement ......................................... 10 If Other Physical Damage Coverage or Similar
Determining Medical Expenses ....................... 10 Coverage Applies............................................... 24
Arbitration ....................................................... 10 Financed Vehicle .............................................. 24
Limit .................................................................11 Our Payment Options ...................................... 24
Nonduplication .................................................11
Exclusions .........................................................11 DEATH, DISMEMBERMENT AND
LOSS OF SIGHT COVERAGE ....................... 25
If Other Medical Payments Coverage or
Similar Vehicle Insurance Applies ................... 12 Additional Definition ....................................... 25
Our Payment Options ...................................... 13 Insuring Agreement .......................................... 25
Benefit .............................................................. 25
UNINSURED MOTOR VEHICLE Exclusions – Death, Dismemberment and
COVERAGE ........................................................... 13 Loss of Sight Coverage and Loss of Earnings
Additional Definitions ..................................... 13 Coverage .......................................................... 26
Insuring Agreement ......................................... 14 Our Payment Options– Death, Dismemberment
and Loss of Sight Coverage and Loss of
Deciding Fault and Amount ............................. 14 Earnings Coverage ........................................... 27
Limits ............................................................... 14
Nonduplication ................................................ 15 LOSS OF EARNINGS COVERAGE ............... 25
Exclusions ........................................................ 15
Additional Definitions ...................................... 26
If Other Uninsured Motor Vehicle Coverage
Applies ............................................................. 16 Insuring Agreement .......................................... 26
Our Payment Options ...................................... 16 Limit ................................................................. 26
Exclusions – Death, Dismemberment and
UNINSURED MOTOR VEHICLE PROPERTY Loss of Sight Coverage and Loss of Earnings
DAMAGE COVERAGE ................................... 16 Coverage .......................................................... 26
Our Payment Options – Death, Dismemberment
Additional Definitions ..................................... 16 and Loss of Sight Coverage and Loss of
Insuring Agreement.......................................... 17 Earnings Coverage ........................................... 27
2
9805B
INSURED’S DUTIES........................................ 27 Where Coverage Applies .................................. 29
Notice to Us of an Accident or Loss ................ 27 Limited Coverage in Mexico ............................ 29
Notice to Us of a Claim or Lawsuit ................. 27 Newly Owned or Newly Leased Car ................ 30
Insured’s Duty to Cooperate With Us .............. 27 Changes to This Policy ..................................... 30
Questioning Under Oath .................................. 27 Premium ........................................................... 30
Other Duties Under the Physical Renewal ............................................................ 31
Damage Coverages .......................................... 28 Nonrenewal ...................................................... 31
Other Duties Under Uninsured Motor Vehicle Cancellation...................................................... 31
Property Damage Coverage ............................. 28 Assignment ....................................................... 32
Other Duties Under Medical Payments Bankruptcy or Insolvency of the Insured ......... 32
Coverage, Uninsured Motor Vehicle, Coverage, Concealment or Fraud ...................................... 32
Death, Dismemberment and Loss of Sight
Coverage, and Loss of Earnings Coverage ...... 28 Our Right to Recover Our Payments ................ 32
Legal Action Against Us................................... 32
GENERAL TERMS .......................................... 29 Choice of Law .................................................. 33
When Coverage Applies .................................. 29 Severability ...................................................... 33
THIS POLICY
1. This policy consists of: (b) a vehicle registration
a. the most recently issued Declarations suspended, revoked, or refused.
Page; (3) Your car is used for pleasure and
b. the policy booklet version shown on that business.
Declarations Page; and 4. All named insureds shown on the Declarations
c. any endorsements that apply, including Page and all applicants agree by acceptance of
those listed on that Declarations Page as this policy that:
well as those issued in connection with any
subsequent renewal of this policy. a. the statements in 3.b. above are made by
such named insured or applicant and are
2. This policy contains all of the agreements be- true; and
tween all named insureds who are shown on
the Declarations Page and all applicants and: b. we provide this insurance on the basis
a. us; and those statements are true.
b. any of our agents. 5. Your purchase of this policy may allow:
3. We agree to provide insurance according to the a. you to purchase or obtain certain coverages,
terms of this policy: coverage options, coverage deductibles,
coverage limits, or coverage terms on other
a. based on payment of the required premi- products from the State Farm Companies,
um when due for the coverages chosen; subject to their applicable eligibility rules;
and or
b. unless otherwise stated in “EXCEPTIONS, b. the premium or price for other products or
POLICY BOOKLET, & ENDORSE- services purchased by you, including non-
MENTS” on the Declarations Page, in reli- insurance products or services, to vary.
ance on the following statements: Such other products or services must be
(1) The named insured shown on the Dec- provided by the State Farm Companies or
larations Page is the sole owner of by an organization that has entered into an
your car. agreement or contract with the State Farm
(2) Neither you nor any member of your Companies. The State Farm Companies
household has, within the past three do not warrant the merchantability, fitness,
years, had either: or quality of any product or service offered
(a) a license to drive; or or provided by that organization.
3
9805B
DEFINITIONS
We define certain words and phrases below for use Non-Owned Car means a car that is in the lawful
throughout the policy. Each coverage includes ad- possession of you or any resident relative and that
ditional definitions only for use with that coverage. neither:
These definitions apply to the singular, plural, pos- 1. is owned by:
sessive, and any other form of these words and
phrases. Defined words and phrases are printed in a. you;
boldface italics. b. any resident relative;
Bodily Injury means bodily injury to a person and c. any other person who resides primarily in
sickness, disease, or death that results from it. your household; or
Car means a land motor vehicle with four or more d. an employer of any person described in a.,
wheels, designed for use primarily on public roads. b., or c. above; nor
Car does not include:
2. has been operated by, rented by, or in the pos-
1. Any vehicle while located for use as a dwelling session of:
or other premises; or a. you; or
2. A truck-tractor designed to pull any type of trailer. b. any resident relative
Car Business means a business or job where the during any part of each of the 31 or more con-
purpose is to sell, repair, service, deliver, test, road- secutive days immediately prior to the date of
test, park, or store land motor vehicles or any type the accident or loss.
of trailer.
Occupying means in, on, entering, or exiting.
Domestic Partner means a person who is in a regis-
tered domestic partnership as qualified by Califor- Our means the Company issuing this policy as
nia law. shown on the Declarations Page.
Fungi means any type or form of fungus or fungi Owned By means:
and includes: 1. owned by;
1. Mold; 2. registered to; or
2. Mildew; and 3. leased, if the lease is written for a period of 31
3. Any of the following that are produced or re- or more consecutive days, to.
leased by fungi:
Pedestrian means a person who is not occupying:
a. Mycotoxins; 1. a motorized vehicle; or
b. Spores;
2. a vehicle designed to be pulled by a motorized
c. Scents; or vehicle.
d. Byproducts. Person means a human being.
Newly Acquired Car means a car newly owned by Personal Vehicle Sharing means the use of a pri-
you. A car ceases to be a newly acquired car on vate passenger car by persons other than the vehi-
the earlier of: cle’s owner in connection with a personal vehicle
1. the effective date and time of a policy, includ- sharing program or any similar program.
ing any binder, issued by us or any other com- Personal Vehicle Sharing Program means a legal
pany that describes the car as an insured entity qualified to do business in the State of Cali-
vehicle; or fornia and engaged in the business of facilitating
2. the end of the 14th calendar day immediately the sharing of private passenger cars for non-
following the date the car is delivered to you. commercial use by individuals within the state.
If a newly acquired car is not otherwise afforded Private Passenger Car means:
comprehensive coverage or collision coverage by 1. a car of the private passenger type, other than a
this or any other policy, then this policy will pro- pickup truck, van, minivan, or sport utility ve-
vide Comprehensive Coverage or Collision Cover- hicle, designed primarily to carry persons and
age for that newly acquired car, subject to a their luggage; or
deductible of $500. Any coverage provided as a 2. a pickup truck, van, minivan, or sport utility
result of this paragraph will apply only until the end vehicle:
of the 5th calendar day immediately following the
date the newly acquired car is delivered to you. a. while not used for:
4
9805B
(1) wholesale; or 2. neither you nor the person operating it own or
(2) retail have registered.
pickup or delivery; and If a car qualifies as both a non-owned car and a
temporary substitute car, then it is considered a
b. that has a Gross Vehicle Weight Rating of temporary substitute car only.
10,000 pounds or less. Trailer means:
Resident Relative means, except in Uninsured Motor 1. a trailer:
Vehicle Coverage, a person, other than you, who re-
sides with the first person shown as a named insured a. designed to be pulled by a private passen-
on the Declarations Page and who is: ger car;
1. related to that named insured or his or her b. not designed to carry persons; and
spouse or domestic partner by blood, marriage, c. while not used as premises for office,
domestic partnership as qualified by California store, or display purposes; or
law, or adoption, including an unemancipated
child of either who is away at school if such 2. a farm implement or farm wagon while being
child: pulled on public roads by a car.
a. otherwise maintains his or her residence Us means the Company issuing this policy as
with that named insured; and shown on the Declarations Page.
We means the Company issuing this policy as
b. is neither married nor a domestic partner; shown on the Declarations Page.
or
2. a ward or a foster child of that named insured, You or Your means, except in Uninsured Motor
his or her spouse or domestic partner, or a per- Vehicle Coverage, the named insured or named
son described in 1. above. insureds shown on the Declarations Page. If a
named insured shown on the Declarations Page is a
See Additional Definitions in Uninsured Motor person, then “you” or “your” includes the spouse or
Vehicle Coverage for the definition used in that domestic partner of the first person shown as a
coverage. named insured if the spouse or domestic partner
resides with that named insured.
State Farm Companies means one or more of the
following: See Additional Definitions in Uninsured Motor
Vehicle Coverage for the definition used in that
1. State Farm Mutual Automobile Insurance coverage.
Company; Your Car means the vehicle shown under “YOUR
2. State Farm Fire and Casualty Company; and CAR” on the Declarations Page. Your Car does not
3. Subsidiaries or affiliates of either 1. or 2. above. include a vehicle that you no longer own or lease.
Temporary Substitute Car means a car that is in the If a car is shown on the Declarations Page under
lawful possession of the person operating it and that: “YOUR CAR”, and you ask us to replace it with a
car newly owned by you, then the car being re-
1. replaces your car for a short time while your placed will continue to be considered your car until
car is out of use due to its: the earliest of:
a. breakdown; 1. the end of the 30th calendar day immediately
b. repair; following the date the car newly owned by you
is delivered to you;
c. servicing;
2. the date this policy is no longer in force; or
d. damage; or 3. the date you no longer own or lease the car
e. theft; and being replaced.
5
9805B
LIABILITY COVERAGE
This policy provides Liability Coverage if “A” is 2. We have the right to:
shown under “SYMBOLS” on the Declarations Page. a. investigate, negotiate, and settle any claim
Additional Definition or lawsuit;
Insured means: b. defend an insured in any claim or lawsuit,
1. you and resident relatives for: with attorneys chosen by us; and
a. the ownership, maintenance, or use of: c. appeal any award or legal decision
(1) your car; for damages payable under this policy’s Liabil-
ity Coverage.
(2) a newly acquired car; or Supplementary Payments
(3) a trailer; and
We will pay, in addition to the damages described in
b. the maintenance or use of: the Insuring Agreement of this policy’s Liability
(1) a non-owned car; or Coverage, those items listed below that result from
such accident:
(2) a temporary substitute car;
1. Attorney fees for attorneys chosen by us to
2. the first person shown as a named insured on the defend an insured who is sued for such damag-
Declarations Page and that named insured’s es. We will not defend any lawsuit or pay attor-
spouse or domestic partner who resides with ney fees incurred:
that named insured for the maintenance or use of
a car that is owned by, or furnished by an em- a. after we deposit in court or pay:
ployer to, a person who resides primarily in (1) the amount due under the Insuring
your household, but only if such car is neither Agreement of this policy’s Liability
owned by, nor furnished by an employer to, the Coverage; or
first person show
Preview
1 JONATHAN H. COLMAN (SBN 93652) SCOTT M. KOPPEL (SBN 110747) 2 COLMAN PERKINS LAW GROUP 15615 ALTON PARKWAY, SUITE 370 3 IRVINE, CA 92618 TELEPHONE (949)261-8100 FACSIMILE (949)261-8102 4 Attorneys for Plaintiff 5 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES – CHATSWORTH COURTHOUSE 10 11 STATE FARM MUTUAL AUTOMOBILE Case No.: INSURANCE COMPANY 12 Plaintiff, COMPLAINT FOR DECLARATORY 13 vs. RELIEF 14 GERARD STANTON SMITH, an individual and DOES 1 through 20, inclusive, 15 Defendants. 16 17 Plaintiff STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, hereby 18 alleges as follows: 19 1. At all times herein relevant, Plaintiff STATE FARM MUTUAL AUTOMOBILE 20 INSURANCE COMPANY (“Plaintiff” or “State Farm”) was a corporation duly qualified to do 21 business in the State of California as an insurance company and was and is authorized to engage in 22 business in the State of California, County of Los Angeles. 23 2. Plaintiff is informed and believes, and thereon alleges, that at all times herein 24 relevant, GERARD STANTON SMITH, (“Defendant/Insured” or “Mr. Smith”), was and is a 25 resident of the County of Los Angeles, State of California. 26 3. Plaintiff is ignorant of the true names and capacities of the individuals or entities 27 sued herein as Does 1 through 20, who may have been involved in the acts alleged herein. Plaintiff 28 alleges that each of the DOE Defendants sued herein is legally responsible in some manner for the 1 COMPLAINT FOR DECLARATORY RELIEF 1 events and happenings referred to herein, and the Plaintiff’s damages as alleged were proximately 2 caused by their conduct. Plaintiff therefore sues said defendants by such fictitious names and will 3 seek leave of court to amend this Complaint to show their true names and capacities when the same 4 has been ascertained. 5 4. At all times herein, Defendants and each of them were the agents, servants, and 6 employees of each defendant, and in doing the things herein described, were acting within the course 7 and scope of their authority as such agents, servants, and employees. 8 BACKGROUND FACTS 9 5. On July 20, 2023, at or about 1:43 p.m., State Farm issued a policy (“Policy”) of 10 automobile insurance as is more particularly described herein to Defendant/Insured Gerard Smith. 11 The insured vehicle on the Policy was a 2007 Lexus LS 460, VIN ending in 13228. 12 6. On July 25, 2023, Mr. Smith reported a claim to State Farm advising that on July 21, 13 2023, at 12:00 p.m., he was rear ended by an unidentified vehicle at the intersection of Reseda 14 Boulevard and Roscoe Boulevard in Northridge, California. The initial impact reportedly pushed 15 the insured vehicle into a retaining wall. The responsible party then reportedly fled the scene. 16 7. On July 21, 2023 Mr. Smith filed a counter Traffic Crash Report with the California 17 Highway Patrol stating that the subject accident occurred on July 20, 2023, at 10:00 p.m. (the same 18 date that Mr. Smith’s Policy incepted with State Farm) 19 8. According to the Traffic Crash Report, Mr. Smith was the driver of a 2007 Lexus LS 20 460 at the time of the subject accident. The Traffic Crash Report further provides that Gerard Smith 21 stated that he was at a stopped at a solid red light in the southbound No.1 lane on Reseda Boulevard 22 at the intersection with Roscoe Boulevard when he was struck from behind by another vehicle. 23 Defendant Gerard Stanton Smith is further quoted in the Traffic Crash Report as stating that the 24 driver of the adverse vehicle failed to stop and identify himself/herself, and that the adverse vehicle 25 drove around Defendant Smith’s vehicle and proceeded south on Reseda Boulevard. 26 9. On July 25, 2023, Defendant/Insured first reported the subject July 21, 2023 accident 27 to State Farm. 28 /// 2 COMPLAINT FOR DECLARATORY RELIEF 1 10. On July 28, 2023, State Farm received notice from Sweet James Accident Attorneys 2 (hereinafter referred to as “Claimant’s Counsel”) that their office had been retained to represent 3 Defendant/Insured for personal injury and property damage claims as a result of the subject accident. 4 11. On August 7, 2023 State Farm acknowledged receipt of Claimant’s Counsel’s 5 correspondence and provided notice regarding the claims process, policy coverages and conditions. 6 12. On August 17, 2023, a representative of State Farm spoke with Claimant’s Counsel 7 and informed Claimant’s Counsel as to what would be needed to expedite the claims process 8 including a recorded statement from Defendant/Insured. Additionally, the State Farm representative 9 asked to inspect the subject vehicle and made repeated requests for the location of the subject 10 vehicle. 11 13. On August 18, 2023 State Farm sent correspondence to Claimant’s Counsel advising 12 that they would be handling the Defendant’s/Insured’s claim under Reservation of Rights. On 13 September 7, 2023 correspondence was sent to Claimant’s Counsel reiterating State Farm’s request 14 for information including a recorded statement. 15 14. During the claim investigation, questions arose regarding the facts of the reported 16 loss and the damage claimed to the Defendant’s/Insured’s vehicle and State Farm requested that Mr. 17 Smith sign an authorization to obtain an accident reconstruction evaluation and to inspect the 2007 18 Lexus LS 460’s Event Date Recorder (“EDR.) 19 15. Due to concerns with the loss facts as reported by the Defendant/Insured and the 20 procurement of coverage on the 2007 Lexus LS 460, Plaintiff referred the matter to counsel (Colman 21 Perkins Law Group, hereinafter referred to as “Colman Perkins”) in order to secure the Defendant 22 Insured’s Examination Under Oath (“EUO”) and relevant documents. 23 16. On September 22, 2023, notice was emailed to the Claimant’s Counsel proposing 24 October 18, 2023, as the date for Mr. Smith’s Examination Under Oath. No response was received. 25 On September 25, 2023, notice was sent to Claimant’s Counsel advising that Mr. Smith’s 26 Examination Under Oath had been scheduled for October 18, 2023, via remote appearance. Notice 27 was sent via First Class Mail, Certified Mail, and E-Mail. 28 /// 3 COMPLAINT FOR DECLARATORY RELIEF 1 17. On September 25, 2023, Claimant’s Counsel sent Colman Perkins an Uninsured 2 Motorist Bodily Injury policy limits demand without acknowledging or responding to any of State 3 Farm’s and/or Colman Perkins’ correspondence requesting the Examination Under Oath, Signed 4 EDR and Medical Authorizations, or requested documents. 5 18. In response to Claimant’s Counsel’s policy limits demand, notice was sent by 6 Colman Perkins to Claimant’s Counsel proposing October 3, 2023 as an earlier date for the Mr. 7 Smith’s EUO in order to allow State Farm to evaluate Mr. Smith’s claim and respond to the policy 8 limits demand in some manner, However, no response was received. 9 19. As a result of Claimant’s Counsel’s failure to respond to Colman Perkins’ request 10 for an earlier date for the EUO of Mr. Smith, Mr. Smith’s Examination Under Oath was unilaterally 11 rescheduled for October 3, 2023. Written notice of the October 3, 2023 EUO was provided to 12 Claimant’s Counsel by way of a September 29, 2023 letter to Claimant’s Counsel and an e-mail to 13 Claimant’s counsel on that same date. In response, Claimant’s Counsel sent an e-mail to Colman 14 Perkins on October 2, 2023, advising that Mr. Smith would not be able to attend his Examination 15 Under Oath on October 3, 2024. 16 20. Claimant’s Counsel then sent Coleman Perkins an e-mail on October 2, 2023, 17 advising that Mr. Smith had undergone a medical procedure and would not be able to attend his 18 Examination Under Oath due to his need to recover from that medical procedure. Claimant’s 19 Counsel apologized and agreed to speak with Mr. Smith to obtain available dates for Mr. Smith’s 20 Examination Under Oath. In reliance on Claimant’s Counsel’s October 2, 2023 e-mail and 21 concomitant agreement to provide alternative dates, Colman Perkins cancelled the court reporter 22 scheduled to attend Mr. Smith’s Examination Under Oath on October 3, 2023. 23 21. Colman Perkins then sent Claimant’s Counsel an October 12, 2023 e-mail requesting 24 three (3) alternative dates in October 2023 for your Mr. Smith’s Examination Under Oath. 25 22. On October 13, 2023, and without providing the promised alternative dates for Mr. 26 Smith’s EUO, Claimant’s Counsel sent a “Formal Demand for Arbitration” to counsel for Colman 27 Perkins (with a myriad of written discovery), without mention of Mr. Smith’s EUO. Significantly, 28 4 COMPLAINT FOR DECLARATORY RELIEF 1 that “Formal Demand for Arbitration” was not sent in compliance with the requirements of 2 Insurance Code, Section 11580.2 (i)(1)(C). 3 23. On November 7, 2023, a response was sent by Colman Perkins to Claimant’s Counsel 4 via First Class Mail and E-Mail requesting withdrawal of Mr. Smith’s premature and improperly 5 served “Formal Demand for Arbitration” and demanding alternative dates and times Mr. Smith’s 6 Examination Under Oath. There was no response from Claimant’s Counsel. 7 23. Mr. Smith’s Examination Under Oath and an associated production of documents 8 relevant to his claim was unilaterally scheduled by Colman Perkins for December 7, 2023. Written 9 notice of that EUO and request for production of documents was provided to Claimant’s Counsel 10 by way of a November 20, 2023 letter sent via First Class Mail, E-Mail and Facsimile. 11 Defendant/Insured failed to attend his Examination Under Oath on December 7, 2023, or request an 12 alternative date for that Examination Under Oath. 13 24. On November 30, 2023, and prior to the proper service of the “Formal Demand for 14 Arbitration”, Claimant’s Counsel offered to have Mr. Smith submit to an uninsured motorist 15 arbitration deposition in lieu of the Examination Under Oath previously requested by State Farm. 16 Colman Perkins rejected this offer due for the following reasons: 17 a) Uninsured motorist arbitration had not been properly initiated; 18 b) Claimant’s Counsel could not provide any legal, contractual, or factual grounds for 19 the contention that Claimant’s Counsel could obviate the need for Defendant/Insured to fulfill 20 his contractual obligation to submit to an Examination Under Oath by prematurely offering 21 to submit to a deposition, as not such authority exists; 22 c) Forcing State Farm to waive its right to a later deposition in order to obtain Mr. 23 Smith’s Examination Under Oath would be prejudicial to State Farm’s right to obtain an 24 Examination Under Oath (and the production of documents) to determine coverage issues 25 before proceeding to uninsured motorist arbitration and prejudicial to State Farm’s right to 26 take Mr. Smith’s deposition (if necessary) after conducting written discovery and 27 subpoenaing Mr. Smith’s relevant records; and 28 5 COMPLAINT FOR DECLARATORY RELIEF 1 d) Forcing State Farm to waive its right to a later deposition in order to obtain Mr. 2 Smith’s Examination Under Oath would vitiate the reason for the contractual provision 3 allowing the insurer to conduct an Examination Under Oath upon the submission of a claim 4 (e.g., one reason for such provisions is to allow the insurer to investigate coverage issues) 5 before proceeding to uninsured motorist arbitration. 6 25. On January 25, 2024, notice was sent rescheduling Mr. Smith’s Examination Under 7 Oath for February 22, 2024, at 1:30 p.m., and reiterating Colman Perkins’ prior request for 8 documents, in order to afford Mr. Smith a second opportunity to comply with his contractual 9 obligations. Defendant/Insured Gerard Stanton Smith failed to appear for his Examination Under 10 Oath on February 22, 2024. 11 26. An actual controversy has arisen and presently exists between Plaintiff and 12 Defendant/Insured Gerard Stanton Smith in connection with claims under the Policy, based on Mr. 13 Smith’s refusal to comply with his duties under the subject Policy, impeding State Farm’s 14 contractual right to discover the facts and documents necessary to evaluate Mr. Smith’s claim prior 15 to proceeding to uninsured motorist arbitration, if necessary. 16 27. Plaintiff now brings this Declaratory Relief action, contending that coverage under 17 the Policy should not be afforded as the Defendant Insured is refusing to comply with the required 18 conditions under his policy of insurance, which are expressly stated in the subject Policy to be a 19 condition precedent to coverage. 20 THE POLICY OF INSURANCE 21 28, On or about July 20, 2023, State Farm issued a policy of automobile insurance to 22 named insured Gerard Stanton Smith, Policy Number 779 6361-A20-75 (“Policy”). The subject 23 Policy provided (in relevant part) uninsured motorist bodily injury coverage in the amount of 24 $25,000 per person / $50,000 per accident. The Policy also provided collision coverage for physical 25 damage with a $1,000.00 deductible to the listed 2007 Lexus ES350 involved in the subject traffic 26 collision. A true and accurate copy of the Policy is attached as Exhibit 1. 27 29. As it relates to the insured’s duties when submitting a claim for benefits, the subject 28 Policy provides as follows: 6 COMPLAINT FOR DECLARATORY RELIEF 1 INSURED’S DUTIES 2 1. Notice to Us of an Accident or Loss 3 The insured must give us or one of our agent’s notice of the accident 4 or loss 5 as soon as reasonably possible. The notice must give us: 6 a. your name; 7 b. the names and addresses of all persons involved in the accident or loss; 8 c. the hour, date, place, and facts of the accident or loss; and 9 d. the names and addresses of witnesses to the accident or loss. 10 3. Insured’s Duty to Cooperate with Us 11 a. The insured must cooperate with us and, when asked, assist us in: 12 (1) making settlements; 13 (2) securing and giving evidence; and 14 (3) attending, and getting witnesses to attend, depositions, hearings, and 15 trials. 16 b. The insured must not, except at his or her own cost, voluntarily: 17 (1) make any payment to others; or 18 (2) assume any obligation to others unless authorized by the terms of this 19 policy. 20 c. Any person or organization making claim under this policy must, when 21 we require, give us proof of loss on forms we furnish. 22 4. Questioning Under Oath 23 Under: 24 a. Liability Coverage, each insured; 25 b. Medical Payments Coverage, Uninsured Motor Vehicle Coverage, Death, 26 Dismemberment and Loss of Sight Coverage, or Loss of Earnings Coverage, 27 each insured, or any other person or organization making a claim or seeking 28 payment; 7 COMPLAINT FOR DECLARATORY RELIEF 1 Must, at our option, submit to an examination under oath, provide a statement 2 under oath, or do both, as reasonably often as we require. Such person or 3 organization must answer questions under oath, asked by anyone we name, 4 and sign copies of the answers. We may require each person or organization 5 answering questions under oath to answer the questions with only that 6 person’s or organizations legal representative, our representatives, any 7 person, or persons designated by us to record the questions and answers, and 8 no other person present. 9 5. Other Duties Under the Physical Damage Coverages 10 When there is a loss, you or the owner of the covered vehicle must: 11 a. protect the covered vehicle from additional damage. We will pay any 12 reasonable expense incurred to do so that is reported to us; 13 b. make a prompt report to the police when the loss is the result of theft; 14 c. allow us to: 15 (1) inspect any damaged property before its repair or disposal; 16 (2) test any part or equipment before that part or equipment is 17 removed or repaired; and 18 (3) move the covered vehicle at our expense in order to conduct such 19 inspection or testing; 20 d. provide us all: 21 (1) records; 22 (2) receipts; and 23 (3) invoices that we request and allow us to make copies; and 24 e. not abandon the covered vehicle to us. 25 30. As it relates to the rationale for the contractual requirement that the insured submit 26 to an Examination Under Oath as a condition precedent to obtaining coverage, and the effect of the 27 insured’s failure to comply with his duties under the subject Policy, the applicable Policy provides 28 as follows (see Page 32 of Exhibit 1): 8 COMPLAINT FOR DECLARATORY RELIEF 1 GENERAL TERMS 2 12. Concealment or Fraud 3 There is no coverage under this policy if you or any other person insured under this 4 policy has made false statements with the intent to conceal or misrepresent any material 5 fact or circumstance in connection with any claim under this policy. Mr. Smith was sent 6 multiple correspondence requesting that he not only appear for an examination under oath, 7 but that he also provide documents which are material to this investigation. Defendant 8 Insured has failed to cooperate and provide documents thus prejudicing Plaintiff’s ability 9 to conduct its investigation. Moreover, as previously indicated, the facts and evidence 10 suggest that the loss did not occur as alleged, suggesting misrepresentations may have been 11 made in the presentation of the claim. 12 14. Legal Action Against Us 13 Legal action may not be brought against us until there has been full compliance with 14 all the provisions of this policy. 15 31. Mr. Smith and his counsel were sent multiple letters and e-mails requesting that he 16 not only appear for an examination under oath, but that he also provide documents which are 17 material to this investigation. Defendant/Insured Gerard Stanton Smith has failed to cooperate and 18 provide documents thus prejudicing Plaintiff’s ability to conduct its investigation. 19 32. Moreover, as previously indicated, facts and evidence suggest that there are bona 20 fide factual and legal issues that need to be resolved before coverage can be affirmed and before this 21 matter can proceed to uninsured motorist arbitration (if necessary). California law provides that 22 coverage issues are not subject to uninsured motorist arbitration. 23 FIRST CAUSE OF ACTION 24 DECLARATORY RELIEF AGAINST ALL DEFENDANTS 25 33. Plaintiff incorporates by reference Paragraphs 1 through 32 of this Complaint as 26 though fully set forth herein. 27 /// 28 /// 9 COMPLAINT FOR DECLARATORY RELIEF 1 34. An actual controversy has arisen and now exists between Plaintiff State Farm and 2 Defendant/Insured Gerard Stanton Smith as to the existence of coverage available under the subject 3 Policy. 4 35. An actual controversy has arisen and now exists between Plaintiff State Farm and 5 Defendant/Insured Gerard Stanton Smith as to Plaintiff State Farm’s duty to proceed to uninsured 6 motorist arbitration and participate in uninsured motorist arbitration discovery in light of the failure 7 of Defendant/Insured’s failure to comply with his contractual obligations under the subject Policy. 8 36. Defendant/Insured Gerard Stanton Smith’s intentional and deliberate lack of 9 cooperation has prejudiced Plaintiff’s ability to investigate the subject claim. Plaintiff has acted 10 diligently to obtain Mr. Smith ‘s cooperation and is prejudiced by his intentional and deliberate lack 11 of cooperation. 12 37. An actual controversy has arisen between the parties hereto with respect to the 13 Defendant/Insured Gerard Stanton Smith’s duty to comply with his contractual duties to submit to 14 an Examination Under Oath and produce documents relevant to his claims and Plaintiff’s duty to 15 proceed to uninsured motorist arbitration and engage in uninsured motorist discovery (despite Mr. 16 Smith’s failure to comply with his contractual duties). Plaintiff is entitled to have this Honorable 17 Court decide the obligations of Plaintiff and Defendant and each of them and to have this Court 18 render its judgement of declaratory relief regarding the issues stated hereinabove. 19 38. Plaintiff has no adequate remedy at law to resolve the above controversy. 20 39. For the foregoing reasons, Plaintiff seeks a court determination under CCP §1060 21 whether coverage is available under the Policy, regarding Defendant/Insured Gerard Stanton 22 Smith’s duty to comply with his contractual duties to submit to an Examination Under Oath and 23 produce documents relevant to his claims, and regarding Plaintiff’s duty to proceed to uninsured 24 motorist arbitration and engage in uninsured motorist discovery 25 WHEREFORE, Plaintiff State Farm prays for relief as follows: 26 1. For a judicial declaration that no collision coverage, rental car coverage or uninsured 27 motorist bodily injury coverage is owed to the Defendant Insured due to his refusal to 28 comply with his obligations under the policy. 10 COMPLAINT FOR DECLARATORY RELIEF 1 2. For a judicial declaration providing a stay on any uninsured motorist arbitration 2 proceedings and any uninsured motorist arbitration discovery until Plaintiff has 3 complied with his contractual duties under the subject Policy; 4 3. That judgment be granted in favor of State Farm; and 5 4. For such other relief as this Court may deem just and proper. 6 Dated: May 7, 2024 COLMAN PERKINS LAW GROUP 7 8 BY:_____________________________________ 9 JONATHAN H. COLMAN SCOTT M KOPPEL 10 Attorneys for Plaintiff STATE FARM MUTUAL AUTOMOBILE 11 INSURANCE COMPANY 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 COMPLAINT FOR DECLARATORY RELIEF EXHIBIT “1” Please read the policy carefully. If there is an accident, contact your State Farm agent or one RIRXU&ODLP2I¿FHVDWRQFH 6HH³,1685('¶6 '87,(6´LQWKLVSROLF\ERRNOHW WARNING 8QOHVV\RXKDYHDXWRPRELOHLQVXUDQFHZULWWHQE\ a Mexican insurance company, you may spend PDQ\ KRXUV RU GD\V LQ MDLO LI \RX KDYH DQ DF- FLGHQW LQ 0H[LFR ,QVXUDQFH FRYHUDJH VKRXOG State Farm® EHVHFXUHGIURPDFRPSDQ\OLFHQVHGXQGHUWKH ODZVRI0H[LFRWRZULWHVXFKLQVXUDQFHLQRUGHU Car Policy WR DYRLG FRPSOLFDWLRQV DQG VRPH RWKHU SHQDO- WLHVSRVVLEOHXQGHUWKHODZVRI0H[LFRLQFOXGLQJ Booklet WKH SRVVLEOH LPSRXQGPHQW RI \RXU DXWRPRELOH California Policy Form 9805B CONTENTS THIS POLICY ..................................................... 3 Deciding Fault and Amount.............................. 17 Limits and Loss Settlement .............................. 17 DEFINITIONS..................................................... 4 Exclusions ........................................................ 18 LIABILITY COVERAGE .................................. 6 If Other Uninsured Motor Vehicle Property Damage Coverage Applies ................................. 18 Additional Definition ......................................... 6 Our Payment Options ....................................... 18 Insuring Agreement............................................ 6 Supplementary Payments ................................... 6 PHYSICAL DAMAGE COVERAGES ............ 18 Limits ................................................................. 7 Additional Definitions ...................................... 18 Nonduplication................................................... 7 Insuring Agreements ........................................ 19 Exclusions .......................................................... 7 Supplementary Payments – Comprehensive If Other Liability Coverage Applies .................. 8 Coverage and Collision Coverage .................... 20 Required Out-of-State Liability Coverage ......... 9 Limits and Loss Settlement – Comprehensive Financial Responsibility Certification ............... 9 Coverage and Collision Coverage ...................... 20 Limits – Car Rental and Travel Expenses MEDICAL PAYMENTS COVERAGE .............. 9 Coverage .......................................................... 22 Nonduplication ................................................. 22 Additional Definitions ....................................... 9 Exclusions ........................................................ 22 Insuring Agreement ......................................... 10 If Other Physical Damage Coverage or Similar Determining Medical Expenses ....................... 10 Coverage Applies............................................... 24 Arbitration ....................................................... 10 Financed Vehicle .............................................. 24 Limit .................................................................11 Our Payment Options ...................................... 24 Nonduplication .................................................11 Exclusions .........................................................11 DEATH, DISMEMBERMENT AND LOSS OF SIGHT COVERAGE ....................... 25 If Other Medical Payments Coverage or Similar Vehicle Insurance Applies ................... 12 Additional Definition ....................................... 25 Our Payment Options ...................................... 13 Insuring Agreement .......................................... 25 Benefit .............................................................. 25 UNINSURED MOTOR VEHICLE Exclusions – Death, Dismemberment and COVERAGE ........................................................... 13 Loss of Sight Coverage and Loss of Earnings Additional Definitions ..................................... 13 Coverage .......................................................... 26 Insuring Agreement ......................................... 14 Our Payment Options– Death, Dismemberment and Loss of Sight Coverage and Loss of Deciding Fault and Amount ............................. 14 Earnings Coverage ........................................... 27 Limits ............................................................... 14 Nonduplication ................................................ 15 LOSS OF EARNINGS COVERAGE ............... 25 Exclusions ........................................................ 15 Additional Definitions ...................................... 26 If Other Uninsured Motor Vehicle Coverage Applies ............................................................. 16 Insuring Agreement .......................................... 26 Our Payment Options ...................................... 16 Limit ................................................................. 26 Exclusions – Death, Dismemberment and UNINSURED MOTOR VEHICLE PROPERTY Loss of Sight Coverage and Loss of Earnings DAMAGE COVERAGE ................................... 16 Coverage .......................................................... 26 Our Payment Options – Death, Dismemberment Additional Definitions ..................................... 16 and Loss of Sight Coverage and Loss of Insuring Agreement.......................................... 17 Earnings Coverage ........................................... 27 2 9805B INSURED’S DUTIES........................................ 27 Where Coverage Applies .................................. 29 Notice to Us of an Accident or Loss ................ 27 Limited Coverage in Mexico ............................ 29 Notice to Us of a Claim or Lawsuit ................. 27 Newly Owned or Newly Leased Car ................ 30 Insured’s Duty to Cooperate With Us .............. 27 Changes to This Policy ..................................... 30 Questioning Under Oath .................................. 27 Premium ........................................................... 30 Other Duties Under the Physical Renewal ............................................................ 31 Damage Coverages .......................................... 28 Nonrenewal ...................................................... 31 Other Duties Under Uninsured Motor Vehicle Cancellation...................................................... 31 Property Damage Coverage ............................. 28 Assignment ....................................................... 32 Other Duties Under Medical Payments Bankruptcy or Insolvency of the Insured ......... 32 Coverage, Uninsured Motor Vehicle, Coverage, Concealment or Fraud ...................................... 32 Death, Dismemberment and Loss of Sight Coverage, and Loss of Earnings Coverage ...... 28 Our Right to Recover Our Payments ................ 32 Legal Action Against Us................................... 32 GENERAL TERMS .......................................... 29 Choice of Law .................................................. 33 When Coverage Applies .................................. 29 Severability ...................................................... 33 THIS POLICY 1. This policy consists of: (b) a vehicle registration a. the most recently issued Declarations suspended, revoked, or refused. Page; (3) Your car is used for pleasure and b. the policy booklet version shown on that business. Declarations Page; and 4. All named insureds shown on the Declarations c. any endorsements that apply, including Page and all applicants agree by acceptance of those listed on that Declarations Page as this policy that: well as those issued in connection with any subsequent renewal of this policy. a. the statements in 3.b. above are made by such named insured or applicant and are 2. This policy contains all of the agreements be- true; and tween all named insureds who are shown on the Declarations Page and all applicants and: b. we provide this insurance on the basis a. us; and those statements are true. b. any of our agents. 5. Your purchase of this policy may allow: 3. We agree to provide insurance according to the a. you to purchase or obtain certain coverages, terms of this policy: coverage options, coverage deductibles, coverage limits, or coverage terms on other a. based on payment of the required premi- products from the State Farm Companies, um when due for the coverages chosen; subject to their applicable eligibility rules; and or b. unless otherwise stated in “EXCEPTIONS, b. the premium or price for other products or POLICY BOOKLET, & ENDORSE- services purchased by you, including non- MENTS” on the Declarations Page, in reli- insurance products or services, to vary. ance on the following statements: Such other products or services must be (1) The named insured shown on the Dec- provided by the State Farm Companies or larations Page is the sole owner of by an organization that has entered into an your car. agreement or contract with the State Farm (2) Neither you nor any member of your Companies. The State Farm Companies household has, within the past three do not warrant the merchantability, fitness, years, had either: or quality of any product or service offered (a) a license to drive; or or provided by that organization. 3 9805B DEFINITIONS We define certain words and phrases below for use Non-Owned Car means a car that is in the lawful throughout the policy. Each coverage includes ad- possession of you or any resident relative and that ditional definitions only for use with that coverage. neither: These definitions apply to the singular, plural, pos- 1. is owned by: sessive, and any other form of these words and phrases. Defined words and phrases are printed in a. you; boldface italics. b. any resident relative; Bodily Injury means bodily injury to a person and c. any other person who resides primarily in sickness, disease, or death that results from it. your household; or Car means a land motor vehicle with four or more d. an employer of any person described in a., wheels, designed for use primarily on public roads. b., or c. above; nor Car does not include: 2. has been operated by, rented by, or in the pos- 1. Any vehicle while located for use as a dwelling session of: or other premises; or a. you; or 2. A truck-tractor designed to pull any type of trailer. b. any resident relative Car Business means a business or job where the during any part of each of the 31 or more con- purpose is to sell, repair, service, deliver, test, road- secutive days immediately prior to the date of test, park, or store land motor vehicles or any type the accident or loss. of trailer. Occupying means in, on, entering, or exiting. Domestic Partner means a person who is in a regis- tered domestic partnership as qualified by Califor- Our means the Company issuing this policy as nia law. shown on the Declarations Page. Fungi means any type or form of fungus or fungi Owned By means: and includes: 1. owned by; 1. Mold; 2. registered to; or 2. Mildew; and 3. leased, if the lease is written for a period of 31 3. Any of the following that are produced or re- or more consecutive days, to. leased by fungi: Pedestrian means a person who is not occupying: a. Mycotoxins; 1. a motorized vehicle; or b. Spores; 2. a vehicle designed to be pulled by a motorized c. Scents; or vehicle. d. Byproducts. Person means a human being. Newly Acquired Car means a car newly owned by Personal Vehicle Sharing means the use of a pri- you. A car ceases to be a newly acquired car on vate passenger car by persons other than the vehi- the earlier of: cle’s owner in connection with a personal vehicle 1. the effective date and time of a policy, includ- sharing program or any similar program. ing any binder, issued by us or any other com- Personal Vehicle Sharing Program means a legal pany that describes the car as an insured entity qualified to do business in the State of Cali- vehicle; or fornia and engaged in the business of facilitating 2. the end of the 14th calendar day immediately the sharing of private passenger cars for non- following the date the car is delivered to you. commercial use by individuals within the state. If a newly acquired car is not otherwise afforded Private Passenger Car means: comprehensive coverage or collision coverage by 1. a car of the private passenger type, other than a this or any other policy, then this policy will pro- pickup truck, van, minivan, or sport utility ve- vide Comprehensive Coverage or Collision Cover- hicle, designed primarily to carry persons and age for that newly acquired car, subject to a their luggage; or deductible of $500. Any coverage provided as a 2. a pickup truck, van, minivan, or sport utility result of this paragraph will apply only until the end vehicle: of the 5th calendar day immediately following the date the newly acquired car is delivered to you. a. while not used for: 4 9805B (1) wholesale; or 2. neither you nor the person operating it own or (2) retail have registered. pickup or delivery; and If a car qualifies as both a non-owned car and a temporary substitute car, then it is considered a b. that has a Gross Vehicle Weight Rating of temporary substitute car only. 10,000 pounds or less. Trailer means: Resident Relative means, except in Uninsured Motor 1. a trailer: Vehicle Coverage, a person, other than you, who re- sides with the first person shown as a named insured a. designed to be pulled by a private passen- on the Declarations Page and who is: ger car; 1. related to that named insured or his or her b. not designed to carry persons; and spouse or domestic partner by blood, marriage, c. while not used as premises for office, domestic partnership as qualified by California store, or display purposes; or law, or adoption, including an unemancipated child of either who is away at school if such 2. a farm implement or farm wagon while being child: pulled on public roads by a car. a. otherwise maintains his or her residence Us means the Company issuing this policy as with that named insured; and shown on the Declarations Page. We means the Company issuing this policy as b. is neither married nor a domestic partner; shown on the Declarations Page. or 2. a ward or a foster child of that named insured, You or Your means, except in Uninsured Motor his or her spouse or domestic partner, or a per- Vehicle Coverage, the named insured or named son described in 1. above. insureds shown on the Declarations Page. If a named insured shown on the Declarations Page is a See Additional Definitions in Uninsured Motor person, then “you” or “your” includes the spouse or Vehicle Coverage for the definition used in that domestic partner of the first person shown as a coverage. named insured if the spouse or domestic partner resides with that named insured. State Farm Companies means one or more of the following: See Additional Definitions in Uninsured Motor Vehicle Coverage for the definition used in that 1. State Farm Mutual Automobile Insurance coverage. Company; Your Car means the vehicle shown under “YOUR 2. State Farm Fire and Casualty Company; and CAR” on the Declarations Page. Your Car does not 3. Subsidiaries or affiliates of either 1. or 2. above. include a vehicle that you no longer own or lease. Temporary Substitute Car means a car that is in the If a car is shown on the Declarations Page under lawful possession of the person operating it and that: “YOUR CAR”, and you ask us to replace it with a car newly owned by you, then the car being re- 1. replaces your car for a short time while your placed will continue to be considered your car until car is out of use due to its: the earliest of: a. breakdown; 1. the end of the 30th calendar day immediately b. repair; following the date the car newly owned by you is delivered to you; c. servicing; 2. the date this policy is no longer in force; or d. damage; or 3. the date you no longer own or lease the car e. theft; and being replaced. 5 9805B LIABILITY COVERAGE This policy provides Liability Coverage if “A” is 2. We have the right to: shown under “SYMBOLS” on the Declarations Page. a. investigate, negotiate, and settle any claim Additional Definition or lawsuit; Insured means: b. defend an insured in any claim or lawsuit, 1. you and resident relatives for: with attorneys chosen by us; and a. the ownership, maintenance, or use of: c. appeal any award or legal decision (1) your car; for damages payable under this policy’s Liabil- ity Coverage. (2) a newly acquired car; or Supplementary Payments (3) a trailer; and We will pay, in addition to the damages described in b. the maintenance or use of: the Insuring Agreement of this policy’s Liability (1) a non-owned car; or Coverage, those items listed below that result from such accident: (2) a temporary substitute car; 1. Attorney fees for attorneys chosen by us to 2. the first person shown as a named insured on the defend an insured who is sued for such damag- Declarations Page and that named insured’s es. We will not defend any lawsuit or pay attor- spouse or domestic partner who resides with ney fees incurred: that named insured for the maintenance or use of a car that is owned by, or furnished by an em- a. after we deposit in court or pay: ployer to, a person who resides primarily in (1) the amount due under the Insuring your household, but only if such car is neither Agreement of this policy’s Liability owned by, nor furnished by an employer to, the Coverage; or first person show