Williams v. Interinsurance Exchange
Filed 7/25/07 Williams v. Interinsurance Exchange CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TAWNDRA WILLIAMS, Plaintiff, Cross-Defendant and Respondent, v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, Defendant, Cross-Complainant and Appellant. | D048783 (Super. Ct. No. GIC836845) |
APPEAL from a judgment of the Superior Court of San Diego County, Patricia A. Y. Cowett, Judge. Dismissed.
The trial court in this case denied the defendant insurer's motion to certify a group of its policyholders as a class of cross-defendants. In the underlying claim against the defendant, the plaintiff class representative alleged finance charges defendant collects on premium installments are also premiums which, in violation of Insurance Code section 381, the defendant did not set forth on the face of the insurer's standard form policies. By way of its cross-complaint the defendant alleged that if its finance charges should have been set forth as premiums in its policies, the class members' policies should be reformed to comply with the requirements of Insurance Code section 381.
In a related writ proceeding this court has issued a writ of mandate directing that the trial court enter an order granting the insurer's summary judgment on the plaintiff's underlying claim and the remittitur in this case has now issued. Accordingly, we dismiss as moot defendant's appeal in this case.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and respondent Tawndra Williams purchased an automobile insurance policy from defendant and appellant Interinsurance Exchange of the Automobile Club (the Exchange) and elected to pay her premiums in installments. When Williams did so she incurred finance charges in addition to the amount of her annual premium. Although the Exchange disclosed the amount of the finance charges in billing statements it sent her, it did not include those charges as part of her premium or disclose them on the face of the standard form policy the Exchange provided to her.
On October 6, 2004, Williams filed a complaint against the Exchange in which she alleged that the finance charges she paid were unlawful because they were not set forth as premiums in her policy. She relied upon Insurance Code section 381, subdivision (f), which provides that insurance policies must set forth: "(f) Either: (1) A statement of the premium, or [] (2) If the insurance is of a character where the exact premium is only determinable upon the termination of the contract, a statement of the basis and rates upon which the final premium is to be determined and paid."
Williams filed the complaint as a class action lawsuit on behalf of herself and all other policyholders of the Exchange who had paid installment finance charges on or after October 6, 2000.
In July 2005 Williams moved to certify the plaintiff class. On August 12, 2005, the trial court granted her motion to certify the plaintiff class.
In September 2005 the Exchange moved for leave to assert its cross-complaint. The cross-complaint alleged the Exchange, Williams and all other plaintiff class members intended that the plaintiff class members be able to pay their insurance premiums in installments and pay additional finance charges for the privilege of doing so. The cross-complaint further alleged that prior to Williams's complaint, the Exchange, Williams and the class members did not believe the finance charges needed to be disclosed as part of the Exchange's policies. In light of these circumstances, the cross-complaint alleged that if the finance charges were premiums within the meaning of Insurance Code section 381, the class members' policies should be reformed to reflect the parties' intent.
The trial court found the cross-complaint was a compulsory cross-complaint (Code Civ. Proc., 426.30, 426.50) and granted the Exchange leave to file it. The trial also overruled Williams's demurrer to the cross-complaint. The Exchange then moved to certify the policyholders who had paid installments as a class of cross-defendants. The Exchange proposed that Williams act as a class representative and that her counsel act as counsel for the cross-defendants. The trial court denied the Exchange's motion to certify the class of cross-defendants and the Exchange filed a timely notice of appeal.
DISCUSSION
While the Exchange's appeal from the order denying its motion to certify a class of cross-defendants was pending, the Exchange moved for summary judgment on Williams's underlying Insurance Code section 381 claim. The trial court denied the motion and the Exchange filed a petition for a writ of mandate. In Interinsurance Exchange of the Automobile Club v. Superior Court (2007) 148 Cal.App.4th 1218 (Exchange) this court issued a writ of mandate directing that the trial court enter an order granting Exchange's motion for summary judgment. The remittitur in Exchange has now issued. Accordingly, Exchange's appeal in this case is now moot and we are required to dismiss it. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132; Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) Although there are exceptions to the rule which would permit us to nonetheless consider the Exchange's appeal on the merits, those exceptions do not apply here. (See Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099, 1104.) The right of a class action defendant to certify a class of cross-defendants is an interesting issue, but not one of such immediate public interest that we must determine it in a case in which the parties no longer have any real stake. Moreover, it is not an issue which is otherwise likely to escape review.
DISPOSITION
Appeal dismissed.[1]
Each party to bear its own costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
McINTYRE, J.
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[1] Appellant's request that we take judicial notice of orders, transcripts of proceedings and pleadings is denied as moot.
