Interins. Exchange v. Super. Ct. 6/14/07 CA4/1

State: California

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

Docket No: D049831

Case Date: 09/25/2007

Preview:Filed 6/14/07 Interinsurance Exchange 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

D049831 (San Diego County Super. Ct. No. GIC856160)

MICHELLE MONTPETIT, Real Party in Interest.

PROCEEDINGS in mandate after the superior court denied petitioner's demurrer to the first amended complaint. Richard E. L. Strauss, Judge. Petition granted.

Interinsurance Exchange of the Automobile Club (Interinsurance Exchange) petitions for a writ of mandate challenging the trial court's denial of its demurrer to the first amended complaint filed by Michelle Montpetit. 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 Interinsurance Exchange's demurrer. We thus grant Interinsurance Exchange's petition for writ of mandate, and order the court to vacate its order overruling Interinsurance Exchange's demurrer and enter a new order sustaining the demurrer. FACTUAL AND PROCEDURAL BACKGROUND Montpetit filed a class action complaint against Interinsurance Exchange, her former automobile insurer. As amended, the complaint alleged that Montpetit's former automobile policy with Interinsurance Exchange included first party, no-fault medical payments insurance coverage (med-pay coverage). On September 15, 2000, Montpetit allegedly suffered injuries resulting from an automobile accident with a third party. Under its policy's med-pay coverage provisions, Interinsurance Exchange paid $2,000 to Montpetit. Montpetit then settled her claim against the third party tortfeasor for $12,500, and received the settlement payment in full. Montpetit allegedly incurred unrecovered attorney fees of $5,000 and costs of $1,083.70 (for a total of $6,083.70) to obtain this settlement. Interinsurance Exchange then requested that Montpetit repay the $2,000 under Interinsurance Exchange's reimbursement provision, which states: "REIMBURSEMENT TO US - COVERAGE C [

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