Overland Plumbing, Inc. v. Transamerica Insurance

Citations: 119 Cal. App. 3d 476; 174 Cal. Rptr. 1; 1981 Cal. App. LEXIS 1762Docket: Civ. 59156

Court: California Court of Appeal; March 20, 1981; California; State Appellate Court

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Defendant Transamerica Insurance Company appeals a summary judgment favoring plaintiff Overland Plumbing, Inc., awarding $32,067.88 plus interest and costs for a theft covered under a policy. Transamerica acknowledges the loss and timely claim but disputes that Overland demonstrated a loss exceeding $2,100, given a $1,000 deductible, tendering only $1,100 as the maximum liability. 

The insurer challenges the credibility of Overland's evidence, particularly the declaration of Sam Deutsch, which it claims is contradicted by a police report. Transamerica also asserts that Overland did not adhere to an arbitration provision in the policy and calls for disqualification of Overland's counsel based on precedent. It argues that its counterdeclarations, which may include hearsay and unauthenticated records, create triable issues of fact.

The court finds that Overland's claims do not rely on the unverified complaint but on valid declarations and authenticated documents. Sam Deutsch, as the facility manager, testified to the theft's details and provided evidence of the stolen items' value, totaling $33,067.88, confirming their presence before the theft. The court concludes that Overland has met the necessary evidentiary standards to support its claim.

Concentration on missing dogs and the complexity of job orders at the Facility hindered the timely discovery of stolen items on February 19, 1977. Upon realizing the theft, the individual contacted Barry Serber, the controller of OVERLAND, who was expected to notify the police and insurance company. Transamerica challenged the credibility of Sam Deutsch's statements, leading to a supplemental declaration on August 26, 1979. Deutsch clarified that an inventory was not physically conducted; instead, he referenced job sheets and tickets to verify groupings of plumbing materials, stating no physical inventory was completed between February 19 and April 6, 1977. Transamerica acknowledged issuing theft coverage policy F8461986, confirming receipt of notice on April 6, 1977, and did not dispute the timeliness of the claim. The authenticated job tickets and Deutsch's declarations sufficiently established the loss amount. Although Transamerica argued that certain photographs were inadmissible and irrelevant, this did not invalidate the motion for summary judgment. The insurance policy included an arbitration clause for disputes over loss amounts, but there was no record of Transamerica invoking it, thus Overland had no obligation to do so. Transamerica's request for counsel Steven J. Revitz to disqualify himself was waived due to lack of a formal motion in the trial court. Lastly, Transamerica's claim that Overland filed its 'Proof of Loss' on June 24, 1977, was only supported by an inadmissible statement from its declarant, Hoy Mitchell, which lacked personal knowledge.

A proof of loss must be submitted to Transamerica by the insured within 60 days after a loss, unless extended in writing by the company. This provision benefits Transamerica, which can waive compliance. Overland’s potential breach did not demonstrate any prejudice to Transamerica, nor did Transamerica argue this as a reason to deny Overland's summary judgment motion. Legal counsel must substantiate claims with arguments and authority; unsupported contentions are considered abandoned. Transamerica submitted counterdeclarations against Overland's motion, including a police report from a burglary involving stolen plumbing fixtures. This report did not contradict Overland's facts, and Sam Deutsch's failure to report all stolen items was reasonably explained. Although summary judgment cannot be denied solely on credibility, an exception exists for evidence supported only by a sole witness' affidavit. Transamerica challenged the credibility of Deutsch's declaration based on Overland's interrogatory responses regarding inventory issues, but the trial court's discretion in accepting these declarations was not abused. Additionally, much of Hoy Mitchell's counterdeclaration lacked personal knowledge, relying on hearsay and was therefore insufficient under procedural requirements. Transamerica argued that hearsay and unauthenticated records could support counterdeclarations against summary judgment motions.

Prior to the 1973 amendments to Code of Civil Procedure section 437c, affidavits opposing summary judgment did not need to be strictly evidentiary, as established in Eagle Oil Ref. Co. v. Prentice. Transamerica’s position is further supported by Jos. Schlitz Brewing Co. v. Downey Distributor. However, the 1973 amendments, as clarified in Craig Corp. v. County of Los Angeles, introduced a requirement for opposing affidavits to be based on personal knowledge and admissible evidence. This change reversed previous rulings that allowed summary judgment denials based on non-evidentiary counterdeclarations. In the present case, Transamerica’s counterdeclaration, which primarily consisted of arguments about witness credibility and lacked admissible evidence, did not raise a triable issue of fact against Overland’s motion. Furthermore, Overland provided written objections to Transamerica's counterdeclarations prior to the hearing, offering an opportunity to address the deficiencies, which Transamerica failed to do. The judgment is affirmed, with concurrence from judges Woods and Files.