Allstate Indemnity v. Super. Ct. 6/14/07 CA4/1

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D049446

Case Date: 09/25/2007

Preview:Filed 6/14/07 Allstate Indemnity v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

ALLSTATE INDEMNITY COMPANY, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

D049446 (San Diego County Super. Ct. No. GIC857011)

DONNA COLLINS, Real Party in Interest.

PROCEEDINGS in mandate after the superior court denied petitioner's demurrer to first amended complaint. Kevin A. Enright, Judge. Petition granted.

Allstate Indemnity Company (Allstate Indemnity) petitions for a writ of mandate challenging the trial court's denial of its demurrer to the first amended complaint filed by Donna Collins. The legal issue in this case is identical to the issue in Allstate Insurance

Company v. Superior Court (Delanzo) (2007) __ Cal.App.4th ___, filed simultaneously with this opinion. Based on Delanzo, we conclude the court erred in overruling Allstate Indemnity's demurrer. We thus grant Allstate Indemnity's petition for writ of mandate, and order the court to vacate its order overruling Allstate Indemnity's demurrer and enter a new order sustaining the demurrer. FACTUAL AND PROCEDURAL BACKGROUND Collins filed a class action complaint against Allstate Indemnity, her automobile insurer. As amended, the complaint alleged that Collins's automobile policy with Allstate Indemnity included first party, no-fault medical payments insurance coverage (med-pay coverage). On October 28, 2003, Collins allegedly suffered injuries resulting from an automobile accident with a third party. Under the policy's med-pay coverage provisions, Allstate Indemnity paid $2,000 to Collins. Collins then settled her claim against the third party tortfeasor for $10,000, and received the settlement payment in full. Collins allegedly incurred attorney fees of $4,000 and costs of $937.75 (for a total of $4,937.75) to obtain this settlement. Allstate Indemnity then requested that Collins repay the $2,000 under Allstate Indemnity's reimbursement provision, which states: "Our Right to Recover Payment [

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