R & B AUTO CENTER, INC v. FARMERS GROUP, INC
Filed 6/9/06 Reposted to correct formatting error; no change to text
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| R & B AUTO CENTER, INC., Plaintiff and Appellant, v. FARMERS GROUP, INC., et al., Defendants and Respondents. | G032371 (Super. Ct. No. 01CC01761) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge. Reversed and remanded.
Story continue from Part III …….
It is the appellant's burden to show error. Here, the appellant, R & B, contends that the trial court, at the conclusion of a bench trial on the issue, erred in ruling that Truck Underwriters did not owe a fiduciary duty to R & B. Appellant insists that, under the rule of Tran, supra, 104 Cal.App.4th 1202, Truck Underwriters owed it a fiduciary duty with respect to insurance contract execution. However, in this case, R & B has not demonstrated what the scope of that fiduciary duty would have been under the subscription agreement before us.
We must indulge all intendments and presumptions to support the judgment (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 561), and we construe the ruling to mean that Truck Underwriters did not owe R & B a fiduciary duty that would have supported R & B's cause of action. In other words, we construe the trial court's ruling as meaning only that any limited fiduciary duty that Truck Underwriters owed under Tran, supra, 104 Cal.App.4th 1202 did not require Truck Underwriters to issue a policy providing lemon law coverage for used car sales.[1] R & B has not shown us that this ruling is erroneous.
(b) duty with respect to claims handling
As set forth above, R & B argues that the subscription agreement imposes upon Truck Underwriters a fiduciary duty to execute on its behalf only an insurance contract providing lemon law coverage for used car sales. It is unclear to us whether
R & B means to maintain, in addition, an argument that the subscription agreement also gives rise to a fiduciary duty with respect to claims handling.[2] While R & B framed the issue in its third amended complaint, it barely alludes to the issue on appeal.
R & B states in a footnote in its opening brief that â€
