Plaintiff, Great American Insurance Companies, appeals from a judgment entered in favor of defendant, Gordon Trucking, Inc., after defendant’s motion for summary judgment was granted. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2002, a truck owned by defendant would not start. Art’s Towing towed the truck to the repair yard of Bonander Truck, Inc., at approximately 7:00 p.m. that day. Defendant’s truck was parked near two other trucks, one owned by plaintiff’s insureds, the Gandys. While defendant’s truck was parked at Bonander’s, a fire damaged the three trucks parked in the Bonander yard.
Plaintiff filed its complaint, alleging that the fire originated in defendant’s truck and damaged the Gandys’ truck. The complaint alleges defendants were negligent in transporting defendant’s truck and placing it near the Gandys’ truck “in a condition where it was likely to ignite and cause damage to other vehicles and property,” and defendant was negligent in the maintenance and upkeep of its truck.
Defendant moved for summary judgment, asserting that defendant did not breach any duty it owed to the Gandys and there was no causal connection between its maintenance of its truck and the fire. Plaintiff opposed the motion, contending defendant knew its truck had an electrical problem and there was “a factual issue as to the reasonableness of GORDON’S inspection and failure to activate the battery shut off switch.” Plaintiff also argued that negligence could be presumed based on application of the doctrine of res ipsa loquitur.
The trial court granted defendant’s motion for summary judgment, finding there was no triable issue of material fact concerning defendant’s breach of a duty of care to plaintiff or causation of damage. Judgment was thereafter entered in favor of defendant and against plaintiff. Plaintiff appeals.
DISCUSSION
Summary judgment is reviewed de novo.
(Hamburg v. Wal-Mart Stores, Inc.
(2004)
I. Allegations of the Complaint *
II. Defendant’s Facts and Evidence
Defendant proffered 17 undisputed material facts in support of its motion. It asserted it acquired its truck in July of 2002, and put it into operation on August 15, 2002. On Saturday, December 14, 2002, the truck would not start for unknown reasons. Art’s Towing towed the truck to Bonander’s truck yard at approximately 7:00 p.m. The truck yard was closed and would not reopen until Monday. Defendant’s truck was parked near a truck owned by plaintiffs insureds (the Gandys). Twenty-three hours later, about 6:00 p.m. on December 15, 2002, a fire started and burned defendant’s truck, the Gandys’ truck, and a third truck. The cause of the fire is unknown. Defendant’s truck’s only previous electrical problems had been repaired. According to the Gandys, defendant used its truck in a foreseeable manner and for its intended use, and was not warned by the manufacturer of any defect in the electrical system that would cause a fire. According to the Gandys, the truck “would have been purchased without an inspection that would have revealed any alleged defects which could have allegedly caused the fire.” The Gandys’ response to defendant’s interrogatory asking for all facts on which the Gandys based their allegation that defendant knew or should have known its truck had electrical or other malfunctions apt to cause a fire identified the tow truck company and driver, and service technicians at Bonander truck service; it did not identify anyone at Gordon Trucking.
Plaintiff objected to some of the evidence proffered by defendant in support of its undisputed facts. Specifically, plaintiff objected to (1) defendant’s
In its minute order, the court noted it had not yet received the transcript of plaintiff’s oral objections, and it ruled that it was “inclined to sustain Great American’s objections to the interrogatory responses of all parties other than the Gandy plaintiffs.” It ruled that the Gandys’ discovery responses and the admissions in their complaint could be used against plaintiff, because plaintiff stepped into the shoes of the Gandys in this subrogation action. The court also noted that plaintiff relied in its own opposition on some of the same evidence to which it was objecting, apparently referring to maintenance records for defendant’s truck, which it concluded was “fatal to Great American’s opposition.”
Defendant contends plaintiff failed to preserve its objections because it did not obtain a ruling on them; the court merely expressed an “inclination” to sustain certain objections. Although the court phrased its ruling as an “inclination” because it had not yet received a transcript of plaintiffs oral objections, it did rule on each of plaintiff’s objections in its minute order. The court did not subsequently make any change to its ruling on the objections after receiving the transcript. Its ruling on the motion was presumably based on its consideration of only the evidence it ruled admissible. Thus, we conclude that the evidentiary rulings included in the court’s minute order constituted the final rulings on the parties’ evidentiary objections.
A. Defendant’s interrogatory responses
“At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party.” (Code Civ. Proc., § 2030.410, italics added.) Thus, the responding party may not use its own interrogatory responses in its own favor. The trial court did not abuse its discretion in sustaining plaintiff’s objection to defendant’s use of its own interrogatory responses as evidence supporting its statement of undisputed facts.
Defendant offered responses by the Gandys to interrogatories as evidence that “[i]t is unknown why the truck would not start,” that “[t]he cause of the fire is unknown,” and that, when asked for “all facts upon which you base your allegation that Gordon knew or should have known that its [F]reightliner was defective and that it had electrical or other malfunction apt to cause a fire,” the Gandys replied by identifying the “[t]ow truck Company and/or Driver, . . . Rip and Doug . . . , service technicians at Bonander Truck Service, Freightliner,” without identifying any of defendant’s personnel who had knowledge of any defects or malfunctions.
A defendant moving for summary judgment may rely on “factually devoid discovery responses” to show that the plaintiff’s cause of action has no merit and to shift the burden to the plaintiff to demonstrate that a triable issue of one or more material facts exists as to that cause of action.
(Union Bank v. Superior Court
(1995)
“ ‘Equitable subrogation permits a party who has been required to satisfy a loss created by a third party’s wrongful act to “step into the shoes” of the loser and pursue recovery from the responsible wrongdoer. [Citation.] In the insurance context, the doctrine permits the paying insurer to be placed in the shoes of the insured and to pursue recovery from third parties responsible to the insured for the loss for which the insurer was liable and paid.’ [Citation.] Because subrogation rights are purely derivative, an insurer cannot acquire anything by subrogation to which the insured has no right and can claim no right the insured does not have. [Citation.]”
(United Services Automobile Assn. v. Alaska Ins. Co.
(2001)
Because the insurer is subject to the same defenses as the insured, the statute of limitations on the insurer’s cause of action runs from the date of accrual of its insured’s cause of action.
(Commercial Union Assurance Co. v.
While a subrogated insurer’s claims are subject to the same defenses as the insured’s claims, we have been cited to no authority, and we have found none, indicating that the insurer is bound by every discovery response made by the insured during the litigation of the insured’s claims against the third party tortfeasor. When the insured makes affirmative statements or admissions about the facts of his claim, particularly those facts within the insured’s own knowledge, it may be appropriate to hold that the subrogated insurer is bound by those statements or admissions, because they define the insured’s claim and the insurer stands in the insured’s shoes in the subrogation action. But when the insured is asked for facts supporting his allegation regarding matters not within his personal knowledge, and he either represents that he has no knowledge of such facts or responds without identifying any such facts, there does not appear to be any basis for binding the insurer to that representation or factually devoid answer. The insurer can conduct its own investigation and discovery and make its own representations about the facts it learns; the insurer may develop facts of which the insured is unaware. Any opposing party may propound interrogatories directly to the insurer, to determine what facts the insurer is relying on to support its causes of action. Thus, when the insured is asked by interrogatory for all facts the insured is aware of that support some allegation, the subject of which is not a matter within the insured’s personal knowledge, the insurer should not be bound by the insured’s factually deficient answer. We hold that, under these circumstances, another party cannot use the insured’s factually devoid answer to demonstrate that the insurer has no facts with which to prove its allegations.
Moreover, the interrogatory responses cited in support of fact Nos. 4, 9, and 10 do not support those facts. Fact No. 4 states, “It is unknown why the truck would not start” on December 14, 2002. The interrogatories cited ask about “the incident.” The Gandys’ response indicates they interpreted' “the incident” to mean the fire. Fact No. 10 asserts the cause of the fire is unknown. The interrogatories cited do not ask generally what caused the fire; they ask specifically for information about any malfunction or defect in a vehicle that caused the incident or contributed to the injuries sustained in the incident. The only other evidence cited in support of fact Nos. 4 and 10 was defendant’s own interrogatory responses, to which the trial court sustained plaintiff’s objection. Consequently, defendant presented no admissible evidence showing that the matters set out in fact Nos. 4 and 10 are undisputed.
In its response to fact No. 9, plaintiff did not dispute that a fire damaged the Gandys’ truck. Plaintiff did not concede, however, the time of the fire or how long the trucks had been parked at Bonander’s before the fire; the cited interrogatory responses by the Gandys did not provide that information. The only other evidence cited in support of fact No. 9 was specified allegations of the Gandys’ third amended complaint. Even if those allegations were admissible against plaintiff, they also do not indicate when the fire occurred or how long any truck had been parked at the time. Except for the fact that a fire occurred and damaged the Gandys’ truck, purported fact No. 9 is unsupported.
C.-E. *
The judgment is reversed with directions to vacate the order granting summary judgment and to enter a new order denying summary judgment. Plaintiff is awarded its costs on appeal.
Vartabedian, Acting P. J., and Wiseman, J., concurred.
A petition for a rehearing was denied August 21, 2008.