Wawanesa General Ins. v. Super. Ct. 6/14/07 CA4/1

State: California

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

Docket No: D049675

Case Date: 09/25/2007

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

WAWANESA GENERAL INSURANCE COMPANY, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; GHAFOUR AIMAQ, Real Party in Interest.

D049675 (San Diego County Super. Ct. No. GIC857012)

PROCEEDINGS in mandate after the superior court denied petitioner's demurrer to first amended complaint. Yuri R. Hofmann, Judge. Petition granted.

Wawanesa General Insurance Company (Wawanesa) petitions for a writ of mandate challenging the trial court's denial of its demurrer to the first amended complaint filed by Ghafour Aimaq. 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 Wawanesa's demurrer. We thus grant Wawanesa's petition for writ of mandate, and order the court to vacate its order overruling Wawanesa's demurrer and enter a new order sustaining the demurrer. FACTUAL AND PROCEDURAL BACKGROUND Aimaq filed a class action complaint against Wawanesa, his automobile insurer. As amended, the complaint alleged that Aimaq's automobile policy with Wawanesa included first party, no-fault medical payments insurance coverage (med-pay coverage). On December 29, 2002, Aimaq allegedly suffered injuries resulting from an automobile accident with a third party. Under the policy's med-pay coverage provisions, Wawanesa paid $2,000 to Aimaq. Aimaq settled his claim against the third party tortfeasor for $6,400, and received the settlement payment in full. Aimaq allegedly incurred attorney fees of $2,560 and costs of $500.25 (for a total of $3,060.25) to obtain this settlement. Wawanesa then requested that Aimaq repay the $2,000 under Wawanesa's reimbursement provision, which states: "OUR RIGHT TO RECOVER PAYMENT. [

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