Power Fabricating v. Liberty Surplus Ins. Corp.
Plaintiff Power Fabricating, Inc., (Power) challenges the judgment entered after the trial court sustained the demurrers of defendant Liberty Surplus Insurance Corporation (Liberty) without leave to amend. Powers complaint sought declaratory relief and damages due to Libertys refusal to defend it against a wrongful death action brought by the widow of one of Powers putative employees who was electrocuted while working at a housing development in San Diego County. Liberty contends the allegations in Powers complaint that the decedent was its employee and working within the course and scope of his employment when the accident occurred constitute binding judicial admissions precluding coverage based on the insurance policys employee and workers compensation exclusions.
We conclude Powers allegations do not preclude coverage because other allegations in Powers complaint disclose a triable issue of fact in the wrongful death action which potentially exposes Power to liability covered by Libertys insurance policy. Specifically, the issue is whether the decedent was employed by, and acting on behalf of, a company separate from Power at the time of the accident. Because Power has demonstrated the wrongful death action may result in an award against it falling outside the policys exclusions, the complaint here sufficiently alleges Liberty has a duty to defend Power in that action. Accordingly, we reverse the judgment. Court conclude, however, the trial court properly sustained Libertys demurrer to Powers cause of action for breach of statutory duties because Insurance Code section 790.03, subdivision (h), does not provide a private right of action. Court therefore do not disturb that portion of the trial courts order sustaining the demurrers.
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