Garret Murai | California Construction Law Blog
When’s the last time you read your homeowner’s insurance policy? Didn’t think so.
But you might consider doing so, particularly in light of all of the discussions surrounding climate change – a nearly 2 degree Fahrenheit increase in summer temperatures over the past 20 years – and studies finding that wildfires in California could increase by 20% or more by the 2040s, and that the total burned area could increase by 25% or more.
In the next case, Vulk v. State Farm (2021) 69 Cal.App.5th 243, one homeowner found out too late (after his house burned to the ground) that his homeowner’s insurance policy didn’t provide the coverage that he thought it did.
The Vulk Case
In September 2014, Gary Andrighetto’s house in Weed, California burned to the ground during the Boles fire in Siskiyou County. Andrighetto’s house had been insured by State Farm General Insurance Company. State Farm had insured the house, a three bedroom, two bath house, with two-car garage comprising approximately 1,500 square feet, since 1993.
At the time that Andrighetto renewed his homeowner’s insurance policy in 2013, the coverage limit on the dwelling $184,900, plus $18,490 for dwelling extension coverage. The dwelling-related coverage limits also included three optional coverages,: (1) Option ID, which provided an additional sum equal to 20% of the policy maximum for increased dwelling and dwelling extension costs; (2) Option OL, which provided an additional sum equal to 10% of the policy maximum for statutory building code compliance costs; and (3) an additional sum equal to 5% of the policy maximum for dwelling debris removal costs.
In addition to the annual renewal certificate, State Farm would send a California Residential Insurance disclosure form required under Insurance Code section 10102. The form defined various types of insurance coverage including: (1) “replacement cost coverage” which “only pays for replacement costs up to the limits specified in [the] policy”; (2) “extended replacement cost coverage” which “provides additional coverage above the dwelling limits up to a stated percentage or specific dollar amount” and (3) “guaranteed replacement cost coverage” which “covers the full cot to repair or replace the damaged or destroyed dwelling . . . regardless of the dwelling limits shown on the policy declarations page.” The form sent to Andrighetto in 2012 advised that he had purchased extended replacement coverage.
Further, every five years, State Farm would send a letter to Andrighetto providing him “information about an important aspect of . . . homeowners coverage – estimating the cost to replace [his] home at today’s reconstruction prices.” The letter identified several ways to obtain such an estimate including using a recent replacement cost appraisal, a recent building contractor’s estimate, or working with his insurance agent using Xactware software.
Following the fire, State Farm paid Andrighetto the coverage limits for the dwelling-related damage ($285,725.37), the coverage limits for personal property loss ($143,949.00) and additional living expense reimbursements ($37,221.30) in the total amount of $466,896.27. Thereafter, Andrighetto hired a contractor to build a near duplicate copy of his old home at a cost of $236,173.26. However, a contractor hired by Andrighetto’s public adjuster estimated that the actual cost to replace his home would have been $365,450.26.
I’m scratching my head a bit here, but based on this information from the public adjuster, Andrighetto filed suit against State Farm claiming that his insurance policy did not provide full coverage since he was “forced to build a substantially cheaper replacement house.” His complaint asserted claims for breach of contract, breach of the implied covenant of good faith and fair dealing, negligence and unfair trade practices.
During his deposition, Andrighetto acknowledged that he never read his policy documents and was unaware of his coverage limits except the “base amount” of $188,00, but claimed that he told his State Farm insurance agent that he wanted the “best policy” for his home and that his insurance agent had told him that his policy provided “full coverage.” Andrighetto also testified that he trusted his insurance agent to procure “the right amount” of insurance, to “give [him] the right policy for [his] house” and that his insurance agent would automatically increase his coverage limits as necessary to ensure the sufficiency of his coverage.
State Farm later filed a motion for summary judgment. As to Andrighetto’s breach of contract and breach of implied covenant of good faith and fair dealing claims, State Farm argued that these claims failed as a matter of law because State Farm paid Andrighetto all benefits due under his policy and did not act unreasonably with respect to the handling of his claim. As to Andrighetto’s negligence claim, State Farm argued that it did not breach any duty of care owed to Andrighetto and that he did not suffer any damages from any alleged breach. Finally, as to Andrighetto’s unfair competition claim, State Farm argued that Andrighetto had not demonstrated the existence of any unlawful, unfair, or fraudulent conduct by State Farm.
The trial court granted State Farm’s motion for summary judgment. Andrighetto appealed.
On appeal, the 3rd District Court of Appeal explained that on appeal from the grant of a motion for summary judgment the Court of Appeals reviews the trial court’s decision “de novo,” that it “liberally construe[s] the evidence in support of the party opposing summary judgment and resolve[s] doubts concerning the evidence of that party,” but that the losing party has “the burden of affirmatively establishing reversible error.”
As to Andrighetto’s negligence claim, the Court of Appeals set forth the elements most attorneys are aware of: (1) a legal duty on the part of the defendant, in this case, State Farm; (2) a breach of that duty by the defendant; (3) proximate harm caused by a breach of that duty toward the plaintiff, in this case, Andrighetto; and (4) damages suffered by the plaintiff.
As to insurance agents, the Court of Appeal explained that “[a]s a general proposition, an insurance agent does not have a duty to volunteer to an insured that the latter should procure additional or different insurance coverage” unless: (1) the agent misrepresents the nature, extent or scope of the coverage being offered or provided; (2) there is a request or inquiry by the insured for particular type or extent of coverage; or (3) the agent assumes an additional duty by either express agreement or by holding themselves out as having expertise in a given field insurance sought by the insured.
Here, however, explained the Court of Appeal:
Andrighetto did not direct the trial court to any evidence showing that he specifically requested Winkelman procure full replacement cost coverage for his home prior to the Boles Fire. Nor did he cite any evidence showing that he ever asked her whether his insurance coverage was adequate to replace his home in the event of a total loss. Indeed, Andrighetto stated in his deposition that he never made a specific inquiry as to the type or extent of coverage provided by his homeowners policy. He explained that, prior to the Boles Fire, he never read his policy, never had any concerns or questions about it, never contacted or met with his insurance agent to discuss coverage limits, and never requested a specific type of coverage or that his coverage limits be changed Further, he did not claim that he ever asked Winkelman or arranged for a current estimate of the cost to rebuild his home under current construction prices (even though this was also one of the recommendations in the biannual disclosure form designed to protect against insureds being underinsured).
As to Andrighetto’s unfair competition claim, the Court of Appeal explained that “unfair competition” includes “any unlawful, unfair or fraudulent business act or practice.” However, explained the Court of Appeal, the California Insurance Commissioner adopted regulations, the Unfair Insurance Practices Act (UIPA) (Ins. Code § 790. et seq.), to determine “whether insurance companies are or have been engaged ‘in any . . . deceptive act or practices prohibited by Section 790.03,” and “[o]ur Supreme Court has held that ‘[p]rivate UIPA actions are absolutely barred; a litigant may not rely on the prescriptions of section 790.03 as the basis for a UCL [unfair competition law] claim.”
Finally, as to Andrighetto’s breach of contract and breach of implied covenant of fair dealing claim, the Court of Appeal explained:
Andrighetto has not pointed to any express term of his homeowners policy that State Farm breached. Instead, as he did in the trial court, he insists that he has a viable implied contract claim based on the same facts supporting his negligence claim. He argues that State Farm and its agent, “having undertaken to provide a `full coverage’ homeowner policy, … owed [him] a contractual duty to perform reasonably and adequately.” He adds that “when [he] requested the `best policy’ and State Farm’s agent told [him] his replacement cost policy provided `full coverage,’ that created a duty to provide coverage that was within a reasonable margin of error of the actual replacement cost of [his] house. That duty can be enforced by a lawsuit either in contract or in tort.” As for his claim for breach of the implied covenant of good faith and fair dealing, Andrighetto argues, as he did below, that State Farm failed to advise him that its agents do not provide a reasonably accurate estimate of the cost to replace his home.
However, explained the Court of Appeal:
The operative complaint alleges breach of an express contract, not an implied contract. Therefore, Andrighetto cannot obtain reversal of the trial court’s summary judgment ruling on such a theory. Moreover, Andrighetto has failed to show the existence of a valid implied contract for full replacement cost coverage or that the trial court otherwise erred in granting summary judgment on his claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Indeed, as we have noted, the parties stipulated that Andrighetto was paid all benefits due under the terms of the insurance policy, and that his insurance claim was handled in a manner consistent with State Farm’s obligations under the covenant of good faith and fair dealing.
Whether you’re a residential homeowner or a commercial property owner, and whether the insurance you are obtaining or maintaining is a property insurance policy, commercial general liability policy, professional liability policy or other type of policy, it can pay, literally, to become familiar with what those policies cover and don’t cover because when necessity requires that you become familiar with them, it can be too late.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email email@example.com.