Minich v. Allstate Ins. Co. 3/11/11 CA4/1

State: California

Court: California Eastern District Court

Docket No: D056359

Case Date: 03/11/2011

Plaintiff: Minich

Defendant: Allstate Ins. Co. 3/11/11 CA4/1

Preview:Filed 3/11/11

CERTIFIED FOR PUBLICATION

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

KELLY MINICH et al., Plaintiffs and Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant and Respondent.

D056359

(Super. Ct. No. 37-2008-00067995-CU-BC-EC)

APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed. Winters & Associates, Jack B. Winters; Nicholas & Butler, Craig M. Nicholas and Matthew Bartley Butler for Plaintiffs and Appellants. Luce, Forward, Hamilton & Scripps, R. Randal Crispen and Marc J. Feldman for Defendant and Respondent.

I. INTRODUCTION Allstate Insurance Company (Allstate) issued Kelly and Debbie Minich (the Minichs) a homeowner's insurance policy (Policy) that provided that Allstate would pay the Minichs the "actual cash value" of their house, in an amount not to exceed the "limit of liability shown on the Policy Declarations," if the house were damaged or destroyed. 1 The "Building Structure Reimbursement" provision of the Policy provided that Allstate would pay the Minichs an amount in excess of the actual cash value if the Minichs were to "repair, rebuild or replace" their house. An endorsement to the Policy modified the "Building Structure Reimbursement" provision to state that this additional payment would not exceed "150% of the limit of liability." After the Minichs' house was destroyed by a fire, Allstate paid the Minichs $129,590--the limit of liability as shown on the Policy's declarations, minus a $250 deductible. However, Allstate refused to pay the additional $64,920 provided for in the endorsement until the Minichs furnished Allstate with evidence that they were, in fact, rebuilding their house. Allstate paid the Minichs the additional $64,920 approximately 15 months after the fire, once the Minichs demonstrated to Allstate that they were rebuilding their house. The Minichs filed this action against Allstate, claiming that Allstate should have paid them the $64,920 immediately after the fire. The Minichs contend that Insurance

1

The Policy's limit of liability was $129,840, subject to a $250 deductible. 2

Code sections 2051 and 2051.52 require that an insurer pay the "policy limit" (

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