Kim v. Gill

Filed 8/17/06 Kim v. Gill CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Carolyn B. Kuhl, Judge. Reversed.

Steven L. Friedman for Plaintiff and Appellant.

Danning, Gill, Diamond & Kollitz, John J. Bingham, Jr., George E. Schulman, and John N. Tedford, IV for Defendant and Respondent.

INTRODUCTION

Appellant Young Mi Kim (appellant) obtained a judgment against a physician who had been a member of Physicians Interindemnity Cooperative Corporation and Physicians Interindemnity Trust (collectively PIT). Appellant sought indemnification from PIT. After appellant and her attorney received a sizeable check from PIT, we decided Chen v. Superior Court (2004) 118 Cal.App.4th 761 (Chen) in which another member of PIT argued PIT was not responsible for the judgment. In Chen, we examined the governing statutes and contracts and held that PIT was not responsible for the judgment. Thereafter, a motion was brought in the trial court seeking to disapprove appellant's claim made to PIT for indemnification and seeking an order to require appellant to return the funds paid to her. Appellant appeals from the order of the trial court granting the motion and ordering the return of the funds.

The controlling issue in this appeal is whether the evidence appellant presented in opposition to the motion was sufficient to show that PIT was estopped from denying indemnification and estopped from seeking return of the funds. We hold that the trial court erred in rejecting the estoppel argument and thus, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. PIT and appellant's malpractice case.

PIT was an interindemnity trust established pursuant to Insurance Code section 1280.7. (Chen, supra, 118 Cal.App.4th at p. 764; see Mundy v. Mutual Protection Trust (1990) 219 Cal.App.3d 127.) Pursuant to the PIT agreement and the governing statutes, victims of malpractice committed by PIT physician/surgeon members were entitled to seek indemnification from the trust after judgment or settlement. (Ins. Code, § 1280.7, subd. (a)(5); Chen, supra, at pp. 764, 770-771.) Also, the PIT board of trustees could terminate a physician's membership for the non-payment of quarterly fees and assessments, thereby terminating indemnity coverage. (Ins. Code, § 1280.7, subd. (a)(9)(D), (E); Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 652.)

In December 1985, Joong Tai Kim, M.D., (Dr. Kim) first rendered medical services to appellant for an injured elbow.

Sometime prior to January of 1993, appellant filed a medical malpractice lawsuit against Dr. Kim alleging medical negligence resulted in deformity and nerve damage. (Chen, supra, 118 Cal.App.4th at p. 766.)

At the time appellant's lawsuit was filed, and at the time the medical services were rendered, Dr. Kim was a physician member of PIT. Dr. Kim had become a member of PIT on March 9, 1987, with coverage retroactive to April 1, 1984. PIT undertook to defend Dr. Kim; PIT's in-house counsel provided Dr. Kim counsel.

In January 1993, appellant's medical malpractice lawsuit was sent to arbitration.

In early 1993, Dr. Kim was delinquent in the payment of fees owed to PIT. In March 1993, PIT notified Dr. Kim that if the delinquency was not cured, the matter would be referred to PIT's trustees for termination of membership.

In January 1994, on behalf of Dr. Kim, PIT's in-house counsel provided written responses to interrogatories representing that Dr. Kim â€