*1 28, 1977.] No. 23494. Feb. [S.F. NIPPER, EUGENE Plaintiff
ROBERT Appellant, al., CALIFORNIA AUTOMOBILE ASSIGNED RISK PLAN et Defendants and Respondents.
Counsel
McCormick, Barstow, & R. Cornwell Coyle Wayte, Stephen Sheppard, P. for Plaintiff and James Wagoner Appellant. Bianchi, Bianchi, Hoskins & & Bagley, Hoskins Rosenberg, Rosenberg, Bianchi, Albert Peter C. Morris and Stutsman & for Defendants Nagel and Respondents. Fisher,
Peter W. Woods, Alan E. James Chase, R. Lacy, Fisher Maloney, Hurst, Ball, Hunt, Hart, & Baerwitz, Brown & Ball, A. Clarence Joseph Hunt, Mullender, Jr., S. D. Yank, Preston, Molinelli & Joseph Staiger, Frank E. Preston and Warren A. as Amici Curiae on behalf of Staiger Defendants Respondents.
Opinion *5 RICHARDSON, J. This case whether an insur- presents question ance broker and an association of insurers providing assigned automobile insurance to an driver allegedly unqualified incompetent be held liable for may sustained third civilly personal injuries by persons as a result of the insured’s of a motor vehicle. Under negligent operation these circumstances we conclude that is unwarranted and will liability affirm of dismissal. judgments
Plaintiff was in 1973 when the injured truck he was January pickup collided with insured, a car driven driving H. K. Warkentin. by Plaintiff defendants, sued Warkentin and other California including Automobile Risk Plan Assigned and (CAARP) H. B. Klassen and Klassen & Ratzlaff (a licensed insurance broker and his agency, hereinafter referred to as Klassen). After demurrers inter- collectively both CAARP posed and Klassen by were sustained without leave to amend, to trial Warkentin and proceeded obtained a against $200,000, him for $170,000 of which judgment against remains unsat- isfied. On contends that the demurrers were appeal, plaintiff improperly examine, sustained. We of claims as successively, plaintiff’s liability CAARP and Klassen. against Liability CAARP
1. of facts CAARP causes of action Plaintiff’s alleged following against below, as true. we which, for of reviewing rulings accept purposes Wells Indian City {Scott association of insurance CAARP is an 492 P.2d unincorporated 11623 (unless Code section under Insurance organized companies indicated, Code). references are to Insurance otherwise all statutory risk automobile Its function is to administer assigned In 11620-11627. November which is established sections program an and 1971 Warkentin was 79 incapable years age operating alertness, and because of lack of mental automobile capacity safely Warkentin, 5, 1971, Klassen, on behalf On October senility. acting for insur to CAARP Warkentin’s submitted signed application had $15,000. At this time Klassen the amount of ance in allegedly an automobile inability operate personal knowledge Warkentin’s this information to disclose but failed the application safely, Warkentin’s the issuance of liability policy CAARP. (United) Automobile Association thereby inducing United Services automobile to believe that he could an safely. Warkentin operate failed applicants CAARP’s form require allegedly their mental capacity submit or. physical regarding furnished, as been required and had such information sought driving, law, would have issued CAARP nor United policy. neither CAARP had notified Further, that, it in the event alleged of Warkentin’s its of Motor Vehicles (DMV) rejection Department Warkentin’s have revoked the DMV would application, thereupon insurance, he license, that, license and of both drivers deprived *6 accident. on the date of the his vehicle would not have been operating information omissions to elicit concludes that CAARP’s The complaint infirmities, risk to his Warkentin’s assigned application, reject regarding thereof, in the DMV and to proximately notify conjunction of the accident to a member caused the motoring foreseeably plaintiff, public.
a. CAARP’s Obligations. Statutory contention is that the
Plaintiff’s
statutory
applicable
principal
an
taken
and administrative regulations,
together,
imposed
provisions
for
from
affirmative
CAARP to obtain
applicants
duty upon
prospective
their mental and
risk
physical
assigned
coverage
regarding
condition,
those
to
the insurance
lacking
ability
reject
applications
the DMV of such
to
a motor vehicle
and to inform
operate
safely,
An
of this contention
a close examination of
rejection.
analysis
requires
basis of CAARP.
statutory
The
risk
at issue
created
to section 11620
was
assigned
plan
pursuant
et
The
and its
character
seq.
history
operation,
change
plan’s
from
to
are well
and have left clear
documented
voluntary
compulsory,
tracks.
Cal. State Auto. etc. Bureau v.
(See
(1950)
Downey
Cal.App.2d
876, 880-887
P.2d
was to
general purpose
plan
[216
who,
automobile
for
insurance
those
motorists
because
provide
marginal
risks,”
were considered “bad
were otherwise unable to secure and
they
881;
maintain such insurance.
at
v.
{Id.,
see
Interinsurance
p.
Billington
728,
326,
71 Cal.2d
(1969)
In under section foregoing purpose, Insurance Commissioner to issue thereafter (and empowered “. for amend) . . reasonable plan equitable among apportionment, insurance, insurers admitted transact of those applicants who automobile bodily injury property damage liability faith entitled to but are such insurance are in unable good procure methods.” Section 11623 authorizes the ordinary through subscribing insurers to form their own to administer and organization operate Commissioner, to review the Insurance and it is under plan, subject *7 administers CAARP this section that at issue. plan on section which details We focus attention primarily contain. These elements which the “shall’ various component plan include, others, standards for among determining eligibility applicants (subd. (a)), for for insurance and procedures application making insurers apportioning eligible applicants (subd. among subscribing (b)), shall provision (CAARP) administering organization the DMV of the name of each for insurance and notify rejected applicant (subd. (c)), and rules and statutory rejection ground regulations administration and of the governing operation (subd. (d)). plan standards, With and of moment eligibility respect special our section subdivision that “. . . in inquiry, (a), provides such standards the into be taken considera establishing following may tion in .... His criminal conviction (1) respect applicant [If] record; His record of (2) or revocation of a license to suspension [H] operate an automobile; [II] (3) His automobile accident records; [1] mental, His and and age moral characteristics which to his physical pertain and automobile; an The condition ability safely lawfully operate [If] or use of the automobile.” (Italics added.) that CAARP in
Although plaintiff was argues insurability determining of subdivision and required by (a) foregoing language investigate consider Warkentin’s and his mental and age, physical condition, the section leads us to conclude is vested with discretion to determine whether such factors should be included among note, standards for We and most eligibility. initially importantly, the section itself and the described specifically provides age characteristics be considered. Our further conclusion is may supported which, distinction, section 16 the familiar semantic recognizing ’ “ that the term ‘shall’ is and . . is specifically provides mandatory ‘may’ unless otherwise from the context.” From the permissive, apparent itself, read, of section 11624 it is clear that the language fairly Legislature intended a terms, differential of these two as it providing does that the risk “shall” contain standards of plan eligibility include condition, and mental and “may” age, physical It applicant. is that the apparent consideration of Legislature prefaced mental, moral, and and age characteristics with physical discretionary while permissive in the same section language clear retaining to the four mandatory language constituent elements relating generalized which a must contain. This with the plan consistent language demonstrated legislative purpose extending broadening (Cal. coverage State Auto. high etc. Bureau v. applicants. Downey, supra, 876.) otherwise, Had the intended Cal.App.2d there Legislature
43 not It was available such was readily language purpose. accomplish used. in Vice the court’s conclusion analysis
The foregoing supported 241 759 Club Cal. So. Automobile Cal.App.2d Vice, sued an situation. In a somewhat similar 837], involving an club for in automobile liability automobile negligence issuing policy and man vision with one an unlicensed impaired Wyne, 87-year-old had contended in Vice other hearing. Among arguments, plaintiff it therein made standards of described section and the eligibility to a for the to issue insurance unlawful club Wyne’s age person contention, the the court concluded condition. In rejecting physical intended that the cited are not but were “It is sections likely compulsive be to furnish criteria under which an insurer would permitted reject the risk at (Id., an for insurance under plan.” assigned 765.) p. Auto, case, court in the Cal. State sometime
Similarly, ago supra, the Insurance Commissioner had been observed given “great in of risks risk discretion” kinds determining assigned plan court at (See 907.) accept. p. appellate Cal.App.2d assumed its that section throughout opinion, properly, thereof, standards contained in subdivision were (a) eligibility permis- sive, at 900-906.) not (Id., mandatory. pp. in adminis- find in disclosed
We also certain features significance contents of the to the required trative history regulations pertaining course, section These implement plan. regulations, that the view This discloses the Insurance Commissioner’s 11624. histoiy Prior not standards of that section are mandatory. permissive, eligibility contained June 1971 the various plan eligibility approved specified Code, 2431-2437.) tit. former (See §§ Cal. Admin. restrictions. been if had were for insurance considered ineligible they Applicants addicted to (former convicted certain offenses were 2431), drugs § of alcohol (former 2431.1a), (former were habitual excessive users § with “a 2431.2a), disability” were mental § persons major physical (former 2431.5a). §
However, in before June 1971 occurrence events (prior were 2430 was sections and section us) repealed foregoing plan that, their Section as a provides adopted place. prerequisite has under the an he consideration must plan, certify, *9 within 60 to his to obtain attempted, prior days present application, insurance and was unable secure it means. through ordinary Further, “An so shall be considered for assignment applicant certifying An in faith to the Plan. shall be good upon making application in faith if he all information of the material |jzc] considered good reports incorrect or statements in nature and does not make willfully misleading form, not come within of the or does the any prescribed application listed below.” There follow three (§ 2430.) or exclusions prohibitions failure exclusions which render an (1) applicant wholly ineligible: obtain, hold, it can be restored or a drivers license (unless ineligibility to an of financial failure to premiums upon proof responsibility); pay months; the risk automobile insurer applicant’s during past hire, for when the includes use of a motor vehicle in passengers carrying exceeds 16 or use for the of seating capacity persons, transportation certain materials. dangerous explosive
It thus that instead of those appears eligibility continuing previous Warkentin, standards which have excluded such as persons 2430, 1971, section in June extends since present regulation, operation licensed most drivers who are otherwise unable to obtain coverage the usual methods. The reason for the substantial coverage through and is in a 1971 change eligibility policy revealing explained Commissioner, 174-A, decision the Insurance No. of which we by Ruling Code, take (Evid. notice. subd. This decision may judicial (c).) § summarized results held his office regarding hearings by various amendments to the contained the proposed plan statement: “The unanimous following Hearings developed approval recommendation that the Committee Governing eligibility in the for Plan should be broadened participation requirements end that the thereunder is only requirement coverage expanded for the time a valid and unrevoked license either at operator’s possession of for the or the reinstatement automatic coverage, making Such of such insurance coverage. such license following provision exclusions delete from the amendments will existing many present plan which time from from therein and exceptions eligibility participation now dictated to be and inharmonious have outmoded and experience the streets and conditions which on with the driving presently pertain added.) California....” italics (Ruling p. highways Commissioner, is authorized who by Insurance It is apparent forth standards set has that the assumed eligibility law issue plan, not be considered are standards which need in section 11624 permissive fact, In reason insurance. CAARP in processing applications Code, CAARP must (with the Administrative amendments to the 1971 to all licensed not herein relevant) provide minor exceptions *10 carriers authorized those by few drivers. As a with corollary, exceptions, on 11625) (§ in the insurance must to write participate plan law liability insurance that, the of for extending the theory purpose apparent the risks in in the insurers greater as as sharing coverage widely possible, the the bad with field must “take good.” liability to administrative accorded interpreta
We have respect generally them erroneous, deemed have and, a law unless tions of clearly (E.g., factors in statutory meaning purpose. ascertaining significant Noroian v. 10]; 470 P.2d Mudd v. McColgan [183 651, 655 Administration Cal.App.3d Department of however, insisting to the by Plaintiff foregoing responds analysis, Insurance of the errs in his the Insurance Commissioner interpretation herein. Plaintiff emphasis Code at issue provisions places special above, which, as noted requires subdivision of section 11624 (c) upon the of CAARP to the DMV of both any rejection notify the reasons that therefor. Plaintiff and the reason statutory had it intended this would not have enacted Legislature provision of standards to CAARP discretion eligibility possess ignore it is however, We find this (a). unconvincing, subdivision analysis, the DMV intended reasonable to conclude equally Legislature notification to those discretionary eligibility provision apply only risk insurance CAARP for standards chosen by evaluating assigned applicants. include, CAARP’s statutory responsibilities
Plaintiff urges DMV, of the function, in effect, or an investigative policing supplement that, While acknowledging or drivers. out” unsafe to “weed unqualified function of its reporting to a prompt performance by degree, CAARP’s means is DMV this no material aid duty by is of statutes of the Furthermore, interpretation one. plaintiff’s principal is, have as we CAARP which with the primary purpose conflicts who, drivers risk” insurance noted, wider extension “assigned or mental physical record age of their present because past driving (See condition, coverage. risks for otherwise unacceptable ordinary are It 876, 881.) Auto. etc. Bureau Downey, Cal.App.2d Cal. State supra, CAARP, DMV, authority which is entrusted with not primary is California drivers are and statutory determining responsibility Code, 12500 et subd. Veh. (See seq., §§ capable driving safely. vehicle for denial a motor ground (f) operate safely [inability it is aided in its task discharge Doubtless license].) prompt CAARP, as it is assisted function of reports police reporting and local and other state agencies. CAARP, however, of civil general imposition upon failure to for CAARP’s investigate
to members of the motoring public serve to defeat drivers would and “screen out” dangerous potentially such tort To avoid liability, of the assigned primary plan. purpose doubtful *11 irresistible CAARP would be under almost compulsion reject Co. (1968) Ins. Matthias v. United (See or borderline applicants. Pacific in turn 752, This 754-755 260 Cal.Rptr. Cal.App.2d [67 on California’s number of insured drivers than increase the reduce rather view, the extending In our policy streets and strong public highways. itself of the underlies the existence plan which coverage CAARP, the utilization countervailing policy favoring outweighs any effect, arm of the DMV in the as an general policing auxiliary Since we of California’s motorists. control of the driving qualifications will cease that those who are driving, cannot assume coverage desiring uninsured to increase the number of the inevitable result will be risks. motorists class among very possessing highest that CAARP had no We conclude obligation inquire statutory Warkentin’s ability. regarding driving
b. CAARP’s Common Law Obligations. that, or absence
Plaintiff contends regardless presence of care CAARP owed a common law obligations, duty any statutory Plaintiff’s all other members of the toward motoring public. to assure CAARP was to take affirmative is that obligated steps reasoning be denied drivers such as Warkentin would liability incompetent to take such insurance, their desire A failure to drive. thereby inhibiting of care owed the breach of a it constitutes duty is urged, general steps, be affected who, in reasonable anticipation, adversely all those above, discussed the various considerations the breach. Given policy cannot however, with such a contention. we agree situations were in such recently principles applicable general harm of foreseeable us as follows: the avoidance expressed “[W]hen 47 or to warn a defendant to control the conduct of another person, requires conduct, the common law has such traditionally liability only imposed if the defendant bears some special relationship dangerous person or to the victim.” v. potential (Tarasoff Regents University of California 425, 14, 334]; 17 Cal.3d 551 P.2d see Weirum Cal.Rptr. [131 General, RKO Inc. 48-49 Torts,
P.2d Rest.2d Plaintiff cited no we 36]; 315.) has § authority, none, are aware of that an other (or insurer suggests person whom an for insurance is either stands in a tendered) special victims, with the or his relationship potential alternatively owes affirmative or disclosure any duty inquiry regarding Co., (See Matthias v. United Ins. applicant. supra, Cal.App.2d Pacific 752, 755-756 between insurer and either special relationship [no insured or victim of insured’s negligence].)
Plaintiff that such a with the urges special relationship general nature of the arises from the motoring public agency “quasi-public” As we have with the state’s charged plan. administering seen, however, the statutes do not create such any applicable expressly connection or of care. without distinctive concluding Assuming *12 defendant, authorized, is a (or statutorily public quasi-public) that which to a fact alone is an insufficient basis agency, upon predicate law in or to in common to duty motoring public general, plaintiff (See, particular. University California, e.g., Regents Tarasoff officers have no supra, [police relationship special of care to either the his tortfeasor or duty victim].) Thus, either on or common law we conclude statutory grounds, to CAARP for failed state cause of action plaintiff’s complaint against its failure to a motor Warkentin’s to inquire regarding ability operate vehicle, or to Warkentin’s or to the DMV reject application, notify thereof. Liability
2. of Klassen in are
The causes action Klassen plaintiff’s allegations against In identical to those set forth with to CAARP. substantially respect addition, in October 1971 Travelers alleged Indemnity to Klassen had refused insure Warkentin because (Travelers) Company with a letter had furnished Travelers from Warkentin’s physician stated that Warkentin was unable to drive because of safely senility; 5, 1971, filled out on October Klassen Warkentin’s application with CAARP certified he had included all risk insurance Warkentin; information him that Klassen “required” given wilfully omitted CAARP with the letter from Warkentin’s furnishing physician; and that owed to furnish that letter Klassen a duty motoring public to CAARP. discussion of CAARP’s preceding liability appear disposi- above,
tive of the action Klassen. As CAARP had no against explained or common law to Warkentin’s mental statutory duty inquire regarding fact, condition. In been would have physical required by administrative applicable Warkentin’s regulations accept under the doubts it have had his plan, despite any regarding a motor vehicle. His case fell within none of the ability operate which, in the bound both CAARP and exceptions recognized regulations follows, Klassen. It that Klassen’s accordingly, alleged knowledge Warkentin’s and the failure disclose that senility, alleged knowledge CAARP, immaterial and would not rise to a cause of wholly give action in favor of plaintiff. noted, further,
It should be under the imposition circumstances óf this case could result in undesirable consequences Klassen, future cases. as Warkentin’s owed to Warkentin an agent, affirmative him if it risk insurance for could be securing assigned obtained of tort a broker for his failure Imposition legally. liability upon to volunteer unrequested regarding ability applicant’s a motor vehicle would create a substantial interest. operate conflict of The broker in such a situation would be to choose between required his hand, client’s best interests in serving on the one obtaining coverage, *13 himself protecting personal member of the against liability any public unsolicited motoring information of a by voluntarily disclosing which cannot affect the type carrier’s to extend obligation coverage rule, view, event. Such any in our would cause brokers to inevitably refuse to seek for their risk clients risk high This assigned coverage. defeat the clear thereby such insurance. We public policy favoring concealment, no means condone by otherwise, intentional or of informa- tional material called for by applications questionnaires. We also that in the instant case had there recognize been revealed the information unfavorable to Warkentin there would have been no different insofar result as risk was concerned. Accord- assigned coverage we hold that Klassen’s to CAARP ingly, (and obligations plaintiff) were satisfied CAARP in information by furnishing only sought by its form.
The case raises We considerations. think policy conflicting tort on CAARP and impose Klassen would be to narrow rather and, than to broaden insurance of California accidents coverage highway motorists, rather than the number of insured decreasing by increasing serve to defeat the demonstrated intent legislative underlying creation plan. of dismissal are affirmed. judgments
Mosk, J., Clark, J., J.,* Sims, concurred. Wright, J.,† TOBRINER, C. J. I dissent. Acting
I with the agree has no majority valid claim against California Automobile Risk Plan Assigned (CAARP). bears no or common law statutory to consider whether obligation individuals who seek its insurance are fit I however, drivers. cannot agree, plaintiff’s complaint states no conceivable viable claim the insurance against agent view, Klassen. In reaches its my conclusion either majority contrary the function improperly of the trier of fact usurping or by narrowly reading plaintiff’s in violation of the complaint canons of accepted review. appellate
I see no
for a
justification
conclusion that an insurance
stands
agent
free of
whatsoever to the
any duty
at
in the event that
public
large
in the
client,
course of
agent,
with a
dealing
acquires
that the client is unfit to
A
suggesting
drive.
bartender who knows that a
customer will drive his car owes a
not to
continue to
public
serve drinks to the customer once the customer becomes obviously
intoxicated.
(1971) Cal.3d
(Vesely
Sager
164-167
Cal.Rptr.
[95
623, 486 P.2d
see
151];
also Bernhard v. Harrah’s Club
(1976) Cal.3d
313, 324-325
215,
† Chairman of the Judicial Council. that it can in such a if it itself puts position supervisory responsibility to whom it has of a the developer adequacy plans housing judge & Loan Assn. 69 Cal.2d v. Great Western Sav. (Connor lent money. 609, 369, An 224].) 447 P.2d 39 A.L.R.3d 850, 864-867 Cal.Rptr. [73 who to all members of the owes a public might duty insurance company a motorist’s motorist to a investigate promptly be negligent injured by a to the motorist. has issued once the policy company insurability Co. Mut. Automobile Ins. v. State Farm (Barrera the insurance P.2d The situation of 674-677 that of the me to be from not seem to does agent distinguishable bank, bartender, the and the insurance the company: psychiatrist, some the owes agent public. clearly, that an therefore, does not contend the Not majority surprisingly, Instead, interest. majority insurance agent may ignore public that, information an indicating concludes should acquire only agent The unfit, not CAARP. is need majority client agent inform conclusion from its that this conclusion follows inexorably prior suggests not consider an fitness.1 need applicant’s of two in either improper The grounded majority’s approach that CAARP hand, assume On the one may majority assumptions. unfitness, that the as to agent with the information would do nothing CAARP, and informing nothing by consequently accomplish to not if he decides that the cannot be therefore possibly negligent agent CAARP, case, however, that It is not inform CAARP. necessarily insurance, would fitness in because it need not consider simply issuing could CAARP officials throw such away. Conceivably, Motor at the the information on to officials decide to pass Department course, the DMV If CAARP officials took this (DMV). Vehicles liable for his failure the insurance holding agent 1The also argues majority between his CAARP would to choose agent information to require the fitness report tort avoiding and his interest in insurance coverage personal to his client to obtain duty liability. refusing fears, often, their conflict of interest will resolve agents All too the majority of interest. to see the conflict for their clients. I fail seek risk insurance high demonstrates, account in take fitness into CAARP need not and does not As the majority CAARP, fitness information If forwards an agent on insurance applications. passing Moreover, is not tort liability insurance. client from obtaining not block his he would risk clients. insurance for high to seek willingness chill agents’ likely significantly care, not take, obvious and are to fulfill his duty must in order which an agent steps costly: DMV, CAARP, need only notify an fully, agent himself protect evident unfitness. the client’s client himself of *15 license,2 decide not to the individual might the unfit individual’s revoke therefore the risk of the drive, escape and members public individual’s unfitness. this occasioned particular injury by would do with CAARP officials decide what we cannot Plainly, would do if or what the insurance as to unfitness applicant left to to be These are fact, license were revoked. questions his driver’s conclusion, it if The fact aided the trial majority’s the trier of process. determinations, the function factual rests on such usurps inevitably trier of fact. the decision to hoist could reflect a the majority’s approach
Alternatively, linked his claim In his on his own petard. complaint, plaintiff to his claim the insurance agent by arguing against against CAARP, it followed from the fact that had the breach of agent’s duty unfitness, have denied the informed of the information as to would been insured, insurance, would have if not applicant, applicant view, on this ceased to drive his car. The hold plaintiff majority, of his treated CAARP’s as his since plaintiff premise logic: sees no it once this argument, rejects premise, apparently majority, conclusion. in also injustice rejecting plaintiff’s function, however, the false charm
Our is not to teach plaintiff without leave The trial court dismissed plaintiff’s complaint symmetry. action, court, in this whether the trial taking to amend. We must judge v. American Sav. & Loan Assn. abused its discretion. La Sala (See 849, is not 489 P.2d Our concern as with the with the defects in so much plaintiff’s complaint possibility if “It is axiomatic that will be able to cure those defects. that plaintiff can be that a defect in the there is a reasonable complaint possibility state a construed can cured amendment or that pleading liberally action, be sustained without leave cause of a demurrer should not case, Klassen, a letter from a 2In this the insurance had in his agent, possession insurance, Warkentin, senile and therefore was stating physician Vehicle authorizes the DMV to “revoke privilege unfit to drive. of Code section 13359 authorize grounds a motor vehicle any person operate upon any Code, (See 13800.) Vehicle Code section § refusal to issue a license.” also Veh. 1, 1976, (f), shall not issue declared that department subdivision prior July “[t]he examination or other license to ... it appears by renew a driver’s any person [w]hen a highway safely such is unable to a motor vehicle upon evidence that person operate DMV, therefore, would have or mental defect or lack of skill.” because had letter. physical had it received a copy physician’s to revoke Warkentin’s license grounds
52 113, Los 11 Cal.3d 118 (1974) (Minsky City Angeles amend.” v. [113 102, 726].) 520 P.2d Cal.Rptr. stands, it is deficient. As we have As plaintiff’s complaint factually seen, connected his to the insurance failure to agent’s plaintiff injury CAARP, CAARP that because it had a notify by alleging duty insurance, fitness, consider would have denied the for applicant’s request insured, if not would have ceased and applicant, driving, his would not struck truck with therefore the have plaintiff’s under no car. If deny applicant, breaks down. To connect theory of plaintiff’s causality obviously seen, act with his as we have also might failure to agent’s plaintiff, injury, Motor CAARP would have notified the Department allege license, and Vehicles, DMV have revoked the that the would applicant’s license; without a driver’s would not have driven the applicant CAARP, and eliminate reference any alternatively, plaintiff the DMV. claim that the should have notified simply agent that the trial run the time Because the statute of limitations had of whether court dismissed the question plaintiff plaintiff’s complaint, could have corrected the factual deficiencies in his through complaint whether, in factual the changes amendment depends upon despite state “the same the amended would nonetheless allegations, complaint Massachusetts (Austin set of facts” as the general prior complaint. 817, 596, 364 & Insurance Co. Bonding Cal.Rptr. [15 584-585 P.2d In Grudt v. Los Cal.3d City Angeles test was 825], 468 P.2d we held that the Austin met where widow of a man shot to death amended her plaintiff, by police, that, not had complaint allege only police intentionally husband, her but that the was killed also wrongfully city responsible officers, of these inasmuch as it its particular negligent supervision police their misconduct. We knew or should have known of prior acknowledged “added a new dimension to the that the amended complaint significant inasmuch as it added the new 583-584) lawsuit” at (id, allegations pp. misconduct and the of that police concerning prior city’s knowledge Nonetheless, we held that the new facts were misconduct. merely at Plaintiff’s amended asserted 584.) “additional.” (Id, complaint p. “the as the facts: it recited same acts by gravamen same basic police] [the action,” for the still “to sought recovery compensate plaintiff (Id.) loss of her husband.”
Grudt that the new facts would need to here suggests allege would be also “additional.” amended merely complaint *17 assert the same facts: basic the insurance would be with agent charged omission, the same act of the failure to take reasonable as to the steps unfitness,3 information the upon applicant’s plaintiff’s injury same, that the therefore, incurred in accident. Because stay plaintiff, deficiencies, could have amended his to correct its factual complaint trial court erred in without leave to dismissing plaintiff’s complaint amend, and the errs in as is. majority judging complaint result,
To reach its must either the function of the majority usurp trier of fact or hold to his deficient to our plaintiff pleading contrary usual rule of liberal construction. I would do An neither. insurance agent not free to his to the at in the event ignore responsibility public large that client, in the course of with agent, acquires dealing read, that the client is unfit to drive. indicating Fairly plaintiff’s that defendant complaint Klassen breached his suggests We should reverse the public. of the trial court judgment allow an to amend plaintiff his opportunity complaint. for a was denied March 1977.
Appellant’s petition rehearing Sullivan, J.,* Tobriner, J., did not therein. was of the participate opinion that the should be petition granted. 3Read literally, plaintiff’s complaint alleges failed to only agent notify course,
CAARP. This allegation, of be sufficient if were to on the proceed that CAARP theory complaint would have notified the DMV. In order to find in plaintiff’s one, an that the allegation notified agent no and thus a basis for the theory that the should agent have notified the DMV we cannot read directly, plaintiff’s complaint literally. An did allegation agent whatsoever with the nothing however; information seems to be implicit under the rule of plaintiff’s complaint, construction, therefore, liberal we should treat this as implicit allegation part (Cf. complaint. v. Regents 17 Cal.3d at University California, supra, p. Tarasoff 3fn. [allegation failed to psychiatrist victim treated as notify part complaint which literally alleges failed to only victim’s psychiatrist notify parents].) *Retired Associate Justice of the Court under Supreme sitting assignment by Chairman of the Judicial Council.