Zimmerman v. National Life Ins. Co.

Filed 10/27/06 Zimmerman v. National Life Ins. Co. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

In this consolidated appeal plaintiffs John Zimmerman and Renee Zimmerman, husband and wife, appeal summary judgments in their action against defendants National Life Insurance Company and Life Insurance Company of the Southwest (collectively, National Life) and Apolinar M. Alvarez, Jr. and Hooper Holmes, Inc., doing business as Portamedic, (collectively, the Alvarez defendants) for damages sustained as a result of defendants’ failure to inform John Zimmerman of the results of a blood test given as a prerequisite for the issuance of a life insurance policy.^[1] They contend defendants owed them a duty of care to provide them the test results.

BACKGROUND

Life Insurance Policy

In March 2000, John Zimmerman and his wife Renee Zimmerman applied to purchase life insurance policies from National Life. As part of the process National Life required them to undergo a paramedical examination. National Life contracted with Portamedic to conduct the examinations. On March 18, 2000, Apolinar Alvarez, Jr. (hereafter Alvarez), a Portamedic employee, conducted the examinations, which included the collection of blood samples for testing.

Portamedic had “standing instructions“ from its insurer client to send the samples it collects to Heritage Labs, independent laboratory, for testing. Heritages Lab’s March 29, 2000 analysis of John Zimmerman’s blood sample showed a triglyceride level of 740 milligrams per deciliter (740). A normal triglyceride level is less than 200.

Heritage Labs reported John Zimmerman’s test results only to National Life; it did not report them to plaintiffs, Portamedic, or Alvarez. Thereafter, National Life issued a life insurance policy to John Zimmerman without informing him of the test results. His triglyceride level was not so high as to preclude National Life from issuing the policy. It is National Life’s policy to notify an applicant whose triglyceride level is greater than 1,000 because it charges an extra premium in that case.

Automobile Accident

On August 6, 2001, approximately 17 months after the life insurance policy issued, John Zimmerman was brought to Stanford Hospital by ambulance as a “trauma code 99 with closed head injury” he suffered as the pedestrian in an automobile accident. He also suffered lung contusions. He was admitted to the hospital’s intensive care unit, where he was given the sedative propofol.

On August 12, he “developed increasing triglycerides, thought to be secondary to propofol” and was placed on a different sedative. On August 13, he was diagnosed with “necrotizing pancreatitis . . . thought to be secondary to the hyperlipidemia, secondary to propofol.” While the medical staff was trying to determine the cause of the pancreatitis, it learned from Renee Zimmerman that John Zimmerman had been given a blood test as part of his application for life insurance with National Life. On August 13, Renee Zimmerman authorized the hospital to obtain his blood test results. On August 14, National Life faxed a copy of the results to Stanford Hospital.

On August 21, John Zimmerman was diagnosed with a pseudocyst of the pancreas. During the ensuing week he was stable but “critically ill,” and continued receiving treatment for, inter alia, pancreatitis. On September 28, he was discharged from the intensive care unit to a rehabilitation facility. He still had the pancreatic pseudocyst, but the hospital concluded it did not require surgical intervention.

Procedural History

1. Complaint

Plaintiffs filed a complaint for damages against, inter alia, National Life and Does 1-1000. The third cause of action for general negligence in the first, and operative, amended complaint alleged in pertinent part: National Life acted negligently, carelessly, and recklessly by failing to report the results of the blood tests to plaintiffs themselves or John Zimmerman’s primary medical care provider, despite the fact it knew, or should have known, that John Zimmerman did not know and had no reason to know of his excessively high triglyceride level. While John Zimmerman was being treated at Stanford Hospital for the injuries he sustained in the automobile accident, plaintiffs gave the hospital John Zimmerman’s medical history, but they did not know that the blood test given by National Life showed he was suffering from high triglyceride blood levels. During his hospitalization John Zimmerman was given propofol. This drug in combination with John Zimmerman’s high triglyceride level caused him pancreatitis and other injuries. As a direct, legal, and proximate result of the negligence of National Life and Does 501-900, John Zimmerman sustained physical injuries, medical expenses, lost wages, and lost earning capacity.

The sixth cause of action was brought by Renee Zimmerman for loss of consortium. It derived solely from the allegations in the third cause of action pertaining to John Zimmerman.

Plaintiffs later substituted defendants Hooper Holmes, Inc., Alvarez, and Portamedic for Does in the amended complaint’s third cause of action. Plaintiffs did not further amend the complaint to specify the basis of their action against these defendants.^[2]

2. Motion for Summary Judgment--National Life

National Life moved for summary judgment on the grounds it had no legal duty pursuant to statute, contract, special relationship or public policy to inform John Zimmerman of the results of his blood test as they related to his triglyceride level. Pertinent to this appeal, it supported its motion with the deposition of James Turner, the “entity” deponent of National Life. Turner testified that National Life did not institute any adverse action regarding John Zimmerman’s life insurance application as a result of his blood test results because his risk profile was sufficient for National Life to issue a standard risk policy. Absent a combination of other issues, such as known heart disease or [high, presumably] blood pressure, a triglyceride level of 740 falls below the threshold at which National Life charges an extra premium. It charges extra money to accept a risk when the triglyceride level is in excess of 1,000 milligrams per deciliter. The 1,000 level is the product of mortality studies done by Lincoln Reassurance. If the triglyceride level exceeds the threshold level of National Life’s published underwriting guide, and it chooses to charge an extra premium as a consequence, National Life’s “requirement and practice” is to send a letter to the proposed insured informing him of the reason for the extra premium. It is also National Life’s practice, although not stated in its underwriting guide or business manual, to enclose with the letter the laboratory test results, and to suggest showing the results to his physician.

National Life’s supporting documents also included the Lincoln National Reassurance Company’s life underwriting manual. It states that the “guideline was developed to enable underwriters to better evaluate the ability of serum lipids to predict future atherosclerotic disease.” It further states that underwriters “should review other coronary risk factors (e.g., cigarette smoking habit, blood pressure, family history, etc.) when evaluating abnormal lipids. When multiple coronary risk factors are unfavorable, the risk of developing atherosclerotic disease is substantially increased.” The manual gives a triglyceride level of up “to 999/mg/dl” a rating of zero and “1,000 up” a rating of 50.

3. Plaintiffs’ Opposition to National Life’s Motion for Summary Judgment

Plaintiffs opposed the motion for summary judgment on the grounds National Life owed them a duty to disclose the results of John Zimmerman’s blood test. They asserted two theories of duty: a general duty to exercise reasonable care under the circumstances, and a heightened duty of contractual good faith and fair dealing as an insurance carrier. Plaintiffs supported their opposition with the following documents:

a. December 22, 2003 Deposition of Renee Zimmerman

The following colloquy occurred during Renee Zimmerman’s deposition.

“Q. What did this man [i.e, Alvarez] say to you that gave you the impression that you should expect notification of the results of the blood test?

“A. “I was sharing with him my experience with the Prudential and I said that I went through the whole thing and they had found a medical issue that I wasn’t aware of and he said, ‘Don’t worry.’ So I was asking about the blood test because we didn’t have the blood test with the first one [the Prudential, presumably], so he said, you know, ‘Don’t worry. If there’s anything, you’ll find out about it,’ and it was based on my previous experience with the heart murmur. . .

“Q. He said--

“A. That was specifically with regards to just when we were having the exam.

“Q. What you just described to me was that he said if there’s anything, that he will notify you?

“A. Yeah.

“Q. Was he more specific than saying, ‘If there’s anything?’

“A. I . . . can’t recall [the] exact conversation with regard to that.”

Renee Zimmerman also testified that the Stanford Hospital personnel asked her for John Zimmerman’s medical history. She told them “[e]verything [she] knew,” which was that “he didn’t have any serious medical issues.” Although the deposition excerpt in the record does not make clear how long after John Zimmerman’s August 6, 2001 arrival at Stanford Hospital she was asked this question, plaintiffs’ opening brief states that the hospital staff asked the question after he developed “some renal failure” and the pancreatitis. According to the hospital discharge summary, these diagnoses occurred on August 11 and August 13, respectively. She further testified that after one of John Zimmerman’s Stanford doctors received his blood test results from National Life, the doctor expressed surprise that plaintiffs had not been informed of them and commented they “‘should have’” been told.

b. May 27, 2004 Declaration of Renee Zimmerman

Renee Zimmerman declared that when the Zimmermans applied for life insurance in March 2002 with National Life, they had a whole life policy at the time through Prudential Insurance Company. She asked the “doctor” who performed the physical examination and drew her blood as part of the National Life application procedure “to let us know whether our blood analyses were in any way abnormal.” She made the request because, due to a medical condition (heart murmur) of which she was unaware, another insurance company had given her a more expensive insurance rating than National Life had given her. The “doctor” told her not to worry and that they would be informed and provided a copy of the results if there were any irregularities. National Life, like Prudential, advised her that it was changing her rating because of her heart murmur. The Zimmermans were not informed of any abnormal findings for John Zimmerman. When plaintiffs learned that National Life agreed to sell them a life insurance policy without changing John Zimmerman’s rating and without any report of abnormalities, they assumed that he had passed the physical and blood tests with a “‘clean bill of health.’” She later learned that John Zimmerman’s blood test showed abnormally high results for triglycerides and cholesterol. Had they been told of John Zimmerman’s “irregular blood values at the time, we would have had a doctor check that out for evaluation and possible treatment.” She only recently learned that the person who performed the examination was not a real doctor.

c. November 4, 2003 Deposition of John Zimmerman

The following colloquy occurred during John Zimmerman’s deposition.

“Q. What was your understanding as to what was going to be done with your blood [drawn as part of his life insurance application process] . . .?

“A. They were going to send it to a lab, and run tests, and give me the results if there was something wrong.

“Q. What gave you the understanding that if something was wrong, you were going to be notified?

“A. They noticed a heart murmur from my wife. They told her about it, and they gave her an increased rate; and they said nothing to me and I got the basic rate. . . . Why would they take the test and not tell me anything about it if there was something wrong[?] I assume that once they took the blood for a reason to see if I was a high risk or low risk, that they would inform me of anything that was wrong.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .

“Q. . . . [W]as there anything--any overt action taken by anyone relating to the insurance company that indicated to you that if something was wrong, you were going to be notified? [] Did someone say to you, ‘If we find anything wrong, we’ll tell you?’

“A. . . . [T]he doctor [i.e., Alvarez] said they will get back to you with the results.

.. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . .

“Q. So you just told me the doctor said they would get back to you with the results. Did he say they would get back to you with the results if something was wrong?

“A. I don’t remember those exact words, but they did get back with Renee and raised her rates because they found something wrong during her exam.

“Q. That was the first time you applied for life insurance where they found the heart mu[r]mur?

“A. Yes.”

At the deposition John Zimmerman was wearing a medical alert bracelet with two tags. One tag was inscribed “Pancreatitis;” the other tag was inscribed “Hypertriglyceride disorder.” Both tags were inscribed “Allergic to Haldol, Ativan, Propofol, Reglan.”

d. May 26, 2004 Declaration of John Zimmerman

John Zimmerman asked the “doctor” who drew the blood as part of the application process “to let me know when the blood got analyzed whether my blood analysis was in any way abnormal. He told me not to worry and that if there were any irregularities, I would be informed and provided a copy of the results.” When John Zimmerman learned that National Life decided to sell plaintiffs a life insurance policy without his being told of any abnormal findings, he assumed he passed his physical and blood analysis with a “‘clean bill of health.’”

e. Ciardella Declaration

Chris Ciardella has been an independent agent in California for 11 years. After reviewing the discovery to date (her declaration was executed on May 27, 2004), she opined that National Life failed in its duty of care and fair dealing because (1) it knew that John Zimmerman was unaware of his elevated triglyceride level; (2) by virtue of its relationship with him as his insurer it had a duty to send him the blood test results that showed a potentially life threatening disease with the advice to consult his physician; (3) except in the case of certain conditions not applicable here, e.g., HIV, cancer, the duty exits regardless of whether John Zimmerman requested the results; and (4) plaintiffs asked National Life’s agent for a report of any abnormal blood findings, and the agent assured them they would be so informed.

Ciardella also declared that the fact that National Life imposed on itself a higher than normal triglyceride level cut-off before taking adverse action, e.g., declining to issue a policy or charging a premium, did not affect its duty to inform John Zimmerman of his elevated triglyceride level.

f. Bertino Declaration

Steven Bertino has been an insurance broker since 1974 and is currently president of an agency specializing in business and estate planning. After reviewing the record in the case, he opined that National Life failed to comply with the standard of care because, inter alia, it failed to inform John Zimmerman of the abnormal blood findings after he was assured he would be informed of any abnormal findings. He also opined that National Life’s self-imposition of a high triglyceride cut-off level before taking adverse action on John Zimmerman’s application did not mitigate its duty to inform him of this elevated level. He observed “in retrospect” that if John Zimmerman had applied for a preferred rating, his blood tests in combination with his height and weight would probably have “pushed [him] ‘over the edge,’” and caused National Life to disqualify him from the preferred rating and dropped him to a standard rating. This action would be an “adverse action,” requiring National Life to inform the prospective insured of the reasons, and would have alerted John Zimmerman to his high triglyceride reading. He also opined that National Life was free to deny John Zimmerman insurance, but there was no reason to withhold his blood test results from him.

g. Terry Declaration

Tim Terry is a life and disability insurance consultant. He has been a life insurance company president and held other executive positions in insurance companies. He offered the same opinion as Ciardella and Bertino: National Life breached its duty of care in failing to inform John Zimmerman of abnormal blood tests after it assured him it would do so.

h. Lehtonen Deposition

Sara Lehtonen testified that in her capacity as a National Life underwriter, she has sent courtesy letters to life insurance applicants because of their high cholesterol or high triglyceride levels.

i. Turner Deposition

James Turner, the entity deponent for National Life, testified that National Life’s home state of Vermont requires National Life to provide every applicant a copy of his or her blood test, regardless of National Life’s findings or action on the application.

j. Nowlan Deposition

William Nowlan, M.D., is National Life’s chief medical officer. He testified that even if he thinks the results from an applicant’s blood test can be safely ignored for underwriting purposes, he would still let the potential insured know the laboratory results if he thought the results were significant to the applicant’s health. Doing so is in the interest of both the potential insured and National Life, which has a financial interest in the insured remaining healthy.^[3]

4. Order and Judgment

In granting National Life’s motion for summary judgment, the trial court observed that plaintiffs nowhere alleged in their cause of action for negligence that during the application process they requested to be informed if John Zimmerman’s blood analysis was in any way abnormal or that they were assured that they would be provided with a copy of the blood test results. The court concluded that plaintiffs could not prove that National Life owed them a duty of care under a special relationship theory.

5. Motion for Summary Judgment--the Alvarez Defendants

After the court granted National Life’s motion for summary judgment, the Alvarez defendants filed a motion for summary judgment. They contended they had no contractual duty to plaintiffs to disclose the results of John Zimmerman’s blood test; they did not have a duty pursuant to a special relationship; and they did not voluntarily assume a duty to disclose the results of the test. They also contended that, even assuming they had a duty, they could not be liable for negligence because they had no knowledge of the test results.

The Alvarez defendants supported their motion with the following materials:

a. Collins Declaration

Ronald Collins has been an independent and company life insurance agent for 23 years. He has occasionally acted as the agent for life insurance applicants who were examined by Portamedic. He has never expected Portamedic or any of its paramedical examiners to receive the test results from the specimens collected during the examination, nor did he consider it Portamedic’s obligation to obtain the blood test results. He would consider it an invasion of an applicant’s privacy for Portamedic to attempt to obtain any results because Portamedic is not involved in the underwriting decision making process. Based on his professional experience, he opined that the overwhelming standard throughout the life insurance industry is that paramedical examiners do not receive test results, are not expected by the life insurance company to receive the results, and would not have access to the results even if they did attempt to obtain them.

b. Roberts Declaration

Billy Roberts is the laboratory director for Heritage Labs and is personally familiar with its policies regarding the disclosure of the results of the blood tests it conducts. He was unaware of any occasion in which Heritage Labs ever reported the results of any blood test to Portamedic. Heritage Labs considers the results of tests it conducts as confidential. Even if Portamedic or any of its examiners had asked for results, Heritage Labs would have refused the request and not disclosed the results to them.

c. Roberts Deposition

Roberts testified that he was aware that some life insurance companies send laboratory results to their potential insureds.

d. Randolph Declaration

Kim Randolph has been the San Francisco branch manager of Portamedic for three years and a Portamedic employee for 14 years. Plaintiffs never contacted Portamedic for the results of their blood tests. In March 2000, Portamedic had standing instructions from National Life to send blood samples to Heritage Labs. Portamedic had no communication with Heritage Labs concerning John Zimmerman except for Alvarez’s mailing of John Zimmerman’s blood sample to Heritage Labs. Heritage Labs never discloses to Portamedic the results of the tests it conducts on samples drawn by Portamedic. Portamedic had no communication with National Life regarding plaintiffs other than National Life’s request that Portamedic conduct plaintiffs’ paramedical exams and Portamedic’s billing request for conducting the exams. National Life never discloses to Portamedic a proposed insured’s test results. Portamedic examiners are instructed during their training that they will never learn the results of any test they conduct. When a proposed insured has contacted Portamedic to inquire about test results, Portamedic’s policy is to inform the proposed insured that it does not conduct the test or have access to the results. Examiners are instructed to refer proposed insureds to their agent or life insurance company if the proposed insureds ask any questions about test results during their examinations.

e. Alvarez Deposition

Alvarez testified that applicants occasionally ask what kinds of tests will be performed on the blood sample he has drawn. He instructs the applicants to direct any questions to their agent or insurance company. He has no access to the laboratory tests or results.

f. Thresher Deposition

Laurie Thresher is a senior underwriter at National Life. She testified that National Life would not consider an application for life insurance without the required blood sample. She knew that a paramedical examiner cannot examine a proposed insured for a heart murmur; a physician performs that examination. ^[4]

6. Plaintiffs’ Opposition to the Alvarez Defendants’ Motion

Plaintiffs opposed the Alvarez defendants’ motion for summary judgment on the ground they owed them a duty of care on three theories: (1) Alvarez identified himself as a doctor and voluntarily assumed the duty of notifying John Zimmerman of abnormal blood test results. (2) the Alvarez defendants owed them a duty of disclosure under the lesser standard of “due care.” (3) Alvarez was independently liable for misrepresenting himself as a doctor.^[5] They supported their opposition with the same documents used to support their opposition to National Life’s motion for summary judgment: deposition testimony and declarations of John and Renee Zimmerman. They also supported their opposition with the following additional materials.

a. Alvarez Deposition

Alvarez testified that he did not remember whether he told John or Renee Zimmerman that he was a doctor. He did not remember whether John Zimmerman asked what tests would be performed on his blood sample or anything about the test results. He did not recall telling John Zimmerman anything about the availability of the blood test results.

7. October 13, 2004 Order

In granting the Alvarez defendants’ motion for summary judgment, the court first observed that plaintiffs nowhere alleged that during their paramedical examinations they requested to be informed if John Zimmerman’s blood analysis was in any way abnormal. Nor did they allege that they were ever assured they would be provided a copy of the blood test results. It also concluded that, as a matter of law, plaintiffs could not prove the Alvarez defendants owed them a duty of care because there is no special relationship between an insurer and an applicant who later becomes an insured that creates any affirmative duty to disclose information regarding the applicant. Moreover, the allegations of the complaint alleged no theory of liability against the Alvarez defendants separate from that alleged against the insurer defendants. Since the court’s review was limited “to matters framed by the pleadings,” “the deposition of Zimmerman [was] not relevant.” The court denied plaintiffs’ oral request to amend their complaint without prejudice.

8. Motion to Amend

On November 19, 2004, plaintiffs moved for leave to file a second amended complaint to articulate more specifically and to add additional theories of liability against the Alvarez defendants. Their amendment would specify that the Alvarez defendants assumed a duty to inform them if the blood tests were abnormal. It would also add a fourth cause of action for fraud, which would allege, inter alia, that when Alvarez, acting as agent for Hooper Holmes, Inc., Heritage Labs, and National Life, examined plaintiffs and drew their blood, he promised to inform them, in accordance with “its” custom and procedure, of any abnormal results; defendants did not intend to send adverse medical findings; plaintiffs purchased their life insurance policies in reliance on this promise; they relied on defendants’ representation in reaching the conclusion that John Zimmerman was in good health and did not require medical attention or consultation because his life insurance policy issued without any information about abnormal blood test findings; the blood test revealed that John Zimmerman suffered from excessively high triglycerides/lipids; his “dangerously high triglyceride level was a material fact” of which defendants were aware; they knew or had reason to know that plaintiffs were unaware of this fact and that this fact was not readily accessible to plaintiffs; as a direct result of defendants’ fraudulent conduct, John Zimmerman sustained injury when, during treatment for injuries suffered in an automobile accident, he was given a drug that, in combination with his high triglyceride level, caused necrotizing pancreatitis.

Plaintiffs’ motion to amend further asserted that they discovered information a few days before the October 13, 2004 hearing on the Alvarez defendants’ motion for summary judgment that revealed that John Zimmerman’s blood test results were known and available to the Alvarez defendants. They supported their motion with the declaration of one of their attorneys, who stated that approximately two days before the October 13, 2004 hearing, she accidentally discovered that, on its website, “Hooper Holmes brags about its database by which it maintains connectivity with all of its affiliates,” which include Heritage Labs.

The Alvarez defendants opposed the motion on the grounds plaintiffs had access to the website before it brought its action against the Alvarez defendants; the new evidence did not support a claim that Heritage Labs shared blood test results with the Alvarez defendants; and plaintiffs obviously knew of the promise to provide them the blood test results before they filed their action, a fact the court emphasized in its June 2004 grant of summary judgment to National Life.

The court denied the motion as untimely filed. It concluded plaintiffs did not proffer any evidence that the delay was excusable. It then entered judgment in favor of the Alvarez defendants.

DISCUSSION

Standard of Review

Summary judgment is properly granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 473c, subd. (c).) In determining whether the papers show there is no triable issue, the court shall consider all evidence set forth in the papers, except that to which objections were made and sustained, and all inferences reasonably deducible from the evidence. (Code Civ. Proc., § 473c, subd. (c).) On review of a summary judgment in favor of the defendant, the appellate court reviews the record de novo to determine whether the defendant has conclusively negated a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact that requires a trial. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673-674 (Ann M.).)

I. Judgment for National Life

1. Plaintiffs’ Pleading

Plaintiffs specifically alleged that National Life “acted negligently, carelessly, and recklessly in that [it] failed to report the results of any medical examination screening performed by [it] to [plaintiffs] or [John Zimmerman’s] primary medical care provider, particularly the results of the blood test, despite the fact that [it] knew or should have known that John Zimmerman did not have reason to know of his excessively high triglyceride level, and in fact, did not know of his excessively high triglyceride leve[l],” and that as a direct, legal, and proximate result of National Life’s negligence, John Zimmerman suffered necrotizing pancreatitis when, during his hospitalization for injuries sustained in an automobile accident, he was given a drug that, in combination with his high triglyceride level, caused the pancreatitis and other injuries.

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. [Citation.]” (Ann M., supra, 6 Cal.4th at p. 673.) In light of plaintiffs’ pleading, the issues to which National Life’s motion had to respond were whether it had a duty to inform plaintiffs or John Zimmerman’s primary care provider of the results of the test conducted on the blood drawn from John Zimmerman during the paramedic examination of March 18, 2000, and, if so, whether its failure to do so was the legal cause of his pancreatitis. (See Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, disapproved on another point in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1242: party moving for summary judgment must respond to issues as framed by the pleadings.)

2. Causation

In the trial court proceedings and on appeal the parties have argued at length the issue of whether National Life did or did not have a duty to inform plaintiffs of John Zimmerman’s blood test results. We conclude we need not resolve this issue, however, because, even assuming solely for the sake of argument that National Life had such a duty, its breach was not the legal cause of his pancreatitis. While causation is generally a question of fact, it can be decided as a matter of law where, as here, the facts permit only one conclusion. (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.)

For purposes of the cause element of a negligence action, a cause of injury is an act or conduct that is a substantial factor in bringing about the injury. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314 (Espinosa); see also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968 (Rutherford).) Although this standard is relatively broad, it requires that the factor be more than remote, trivial, slight, negligible or theoretical. (Rutherford, supra, 16 Cal.4th at p. 978; Espinosa, supra, 16 Cal.4th at p. 968; CACI No. 430.) It encompasses the concept that reasonable people may conclude from the evidence that it is more probable than not that the injury was caused by the defendant. “‘If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. . . . Conduct can be considered a substantial factor in bringing about harm if it ‘has created a force or series of forces which are in continuous and active operation up to the time of the harm’ [citation], or, stated another way, ‘the effects of the actor’s [breach of duty] actively and continuously operate to bring about harm to another [citation].” (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 253.)

The only evidence in plaintiffs’ opposition papers that may arguably be construed as evidence of a causal link between National Life’s failure to provide the blood test results and John Zimmerman’s pancreatitis are Renee Zimmerman’s declaration statement that, had plaintiffs “known about John’s irregular blood values at the time, we would have had a doctor check that out for evaluation and possible treatment” and John Zimmerman’s deposition testimony that he wears a medical alert bracelet inscribed “hypertriglyceride disorder” and “allergic to propofol.”

Because Renee Zimmerman did not elaborate on her statement, her intended implication is not clear. Her statement appears to imply that, through appropriate medical attention, John Zimmerman’s elevated triglyceride level of 740, discovered on March 29, 2000, could have been reduced to a “normal” level of 200 by the time of the August 2001 automobile accident, in which case there would have been no harm from Stanford Hospital’s sedating him with propofol. However, there was no evidence from a medical expert that, had John Zimmerman begun treatment for elevated triglycerides promptly after receiving his blood test results, his triglyceride level would have lowered to the normal level 17 months later, nor was there evidence that Renee Zimmerman was competent to render a medical opinion. (See Evid. Code, § 800: witness not testifying as expert may give opinion testimony only based on witness’s own perception.) Her statement and its apparently intended implication suggest, at most, that National Life’s failure to provide the blood test results could, in theory, have been a factor in causing the pancreatitis. A theoretical factor does not constitute the requisite substantial factor necessary to establish causation. (Rutherford, supra, 16 Cal. 4th at p. 978.)

Likewise, the evidence that, since his hospitalization at Stanford, John Zimmerman wears a medical alert bracelet identifying him with a hypertriglyceride disorder and as allergic to propofol and three other medications does not demonstrate that National Life’s failure to provide his blood test results was a substantial factor in causing his pancreatitis. Plaintiffs argued below that if John Zimmerman had known his triglycerides were “dangerously elevated,” he “would have obtained” such a bracelet, which would have alerted the treating emergency doctors at Stanford that he was not a candidate for propofol. However, plaintiffs presented no evidence that a physician treating John Zimmerman for elevated triglycerides would necessarily have prescribed or even recommended a medical alert bracelet that both identified his condition and specified propofol as a medication contraindicated for the condition, or that John Zimmerman would have thought to request one. Absent such evidence, it is simply speculation that when he was brought into Stanford Hospital after his automobile accident he would have been wearing the same medical alert bracelet he now wears. Consequently, his current use of the bracelet cannot lead a reasonable person to conclude that it is more probable than not that his pancreatitis was caused in substantial part because National Life did not inform plaintiffs of John Zimmerman’s blood test results. (Osborn v. Irwin Memorial Blood Bank, supra, 5 Cal.App.4th at p. 253.)

3. Leave to Amend

Plaintiffs contend the court erred in failing to grant them leave to amend their complaint to conform to proof, based on the evidence that showed National Life had voluntarily assumed a duty of care. Insofar as we have concluded that, as a matter of law, National Life’s failure to inform plaintiffs of John Zimmerman’s blood tests was not the legal cause of his pancreatitis, we need not address this contention concerning duty.

II. Judgment for the Alvarez Defendants

1. Summary Judgment

Because the Alvarez defendants were simply substituted in for Does in the third cause of action for negligence, the allegations of negligence against them are coextensive with those against National Life, as National Life’s agents. Therefore, our conclusion that National Life’s conduct was not the legal cause of plaintiffs’ injuries is equally applicable to the Alvarez defendants.

2. Motion to Amend

Plaintiffs contend the court abused its discretion in denying their motion to amend their complaint to allege facts supporting a voluntary assumption of duty. Again, we need not address this contention because we resolve the appeal on the question of causation.

DISPOSITION

The judgments are affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

________________________

Bruiniers, J.*

*Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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^[1] Plaintiffs moved to consolidate the three appeals that derived from one superior court case number, CIV424800: Zimmerman v. National Life (A108295; National Life), Zimmerman v. Heritage Labs (A110111; Heritage Labs), and Zimmerman v. Alvarez et al (A110112; Alvarez). On December 9, 2005, we ordered the three pending appeals consolidated for purposes of argument and decision. We consolidated A110111 and A111012 (Heritage Labs & Alvarez) for purposes of briefing. On April 7, 2006, we dismissed the appeal in A110111 (Heritage Labs), pursuant to the parties’ stipulation.

^[2] According to National Life, plaintiffs filed their original complaint on August 5, 2002, but the superior court clerk certified this complaint could not be located. On or about October 22, 2003, National Life demurred on the grounds, inter alia, the third and sixth causes of action failed to state a cause of action because National Life had no duty to report the paramedical blood test results to plaintiffs. The demurrer’s caption identified December 5, 2002 as the hearing date. However, the hearing presumably occurred earlier because plaintiffs’ first amended complaint was filed November 22, 2002, and, according to National Life, plaintiffs filed their first amended complaint “after” the demurrer was heard. National Life also states in its respondent’s brief that it demurred to the third and sixth causes of action of the first amended complaint. This demurrer is not in the appellate record, but a January 23, 2003 minute order, captioned “Hearing: Demurrer to 1st Amended Complaint of Zimmerman By National Life []” states in part: “The previously announced tentative is adopted--The Demurrer to the 3rd and 6th causes of action is overruled.” The Alvarez defendants were not substituted in until April 2004.

^[3] National Life objected to plaintiffs’ exhibits “I,” “J,” and “K,” respectively the Nowlan, Lehtonen, and Turner depositions, because they had not been properly authenticated. Although the court sustained these specific objections, it observed that the same evidence was submitted as exhibit A to their attorney’s declaration, and there had been no objection asserted thereto. From this language we glean that the court in fact considered the exhibits. Consequently, contrary to their contention, plaintiffs cannot claim any actual error in the ruling.

^[4] Laurie Thresher’s statement was apparently a response to Renee Zimmerman’s deposition testimony and declaration, wherein she stated that the person who gave her the physical and drew her blood identified himself as a doctor. As recited previously, at pages 6-7, Renee Zimmerman testified that National Life told her it was changing her rating because of her heart murmur. However, she never stated that the “doctor,” i.e., Alvarez, discovered the heart murmur. She testified that her previous insurer, Prudential, informed her she had a heart murmur, and she shared her experience about Prudential finding “a medical issue that I wasn’t aware of” with Alvarez. Her testimony reasonably implies that she identified the specific medical issue discovered by Prudential--the heart murmur--to Alvarez, who included this fact in his report for National Life, which in turn used it as a factor in determining her rating. Alvarez’s report of his examination of Renee Zimmerman is not in the appellate record.

^[5] Because they do not refer to this last theory in their appeal, plaintiffs have abandoned it.