Akin v. Certain Underwriters at Lloyd's Londong

Filed 5/16/06  Akin v. Certain Underwriters at Lloyd's Londong CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Douglas P. Miller, Judge.  Affirmed.

            Shernoff Bidart Darras, William M. Shernoff, Evangeline F. Garris, and Joel A. Cohen for Plaintiff and Appellant.

            LeBoeuf, Lamb, Greene & MacRae, Dean Hansell and Jared M. Katz for Defendant and Respondent.

1.  Introduction

            Plaintiff Jeanne Ruthann Akin filed a complaint for improper rescission against defendants Certain Underwriters at Lloyd's of London after defendants denied her homeowner insurance claims and rescinded her policies.  The trial court sustained defendants' demurrer on the grounds that contract damages were not available in a rescission action and plaintiff's claim was barred by the one-year limitations period provided in the contract.  On appeal, plaintiff argues that she was entitled to seek damages under Civil Code section 1692.^[1]  Plaintiff also argues that her claim of improper rescission was not barred by the one-year limitations period.

            We conclude the trial court properly granted the demurrer because plaintiff cannot recover damages under the policies in an action for rescission under section 1692.  We also conclude that plaintiff's claim was barred under the contractual one-year limitations period.  We affirm the judgment.

2.  Factual and Procedural History

            Plaintiff had two homeowner's insurance policies with Certain Underwriters at Lloyd's of London.

            On March 4, 2004, plaintiff filed her original complaint alleging a breach of contract, breach of the duty of good faith and fair dealing, and professional negligence.  She claimed that water leaks caused damage to her home on two separate occasions on March 31, 1999, and August 15, 2000.  Plaintiff submitted insurance claims to defendants, who denied her claim and rescinded her policies on March 8, 2002.

            Defendants demurred to plaintiff's complaint on various grounds, including that the action was time-barred under the limitations period set forth in the contract.  One of the policies provides:  â€