Preview
1 DAY LAW OFFICES
Montie S. Day, ¹073327
2 Attorneys at Law
1235 Casa Palermo Circle
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4
Henderson,
Tel: (208)
Nevada
280-3766
Email: msdayesq@aol.corn
89011
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FILED
AN MATEO COUNTY
5 LAW OFFICES
Bruce
OF BRUCE
Attorney ¹
P. ZELIS OCT -I 2012
6 1943
P. Zelis,
First Avenue
75312
Ole f I e lor Court
Walnut Creek, CA 94597 NKPLtlYORSS~
7 Tel: (925) 943-6633.
Email: zelis@att.net
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Attorneys for Plaintiff George Mardikian
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SAN MATEO
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14 GEORGE MARDIKIAN, )
) CASE NO.
15 Plaintiff, )
) COMPLAINT FOR MONEY AND DAMAGES
16 vs. ) (BREACH OF CONTRACT; BREACH OF
) THE COVENANTS OF GOOD FAITH AND
17 WAWANESA GENERAL ) FAIR DEALING)
INSURANCE COMPANY, a )
18 corporation, and DOES 1 through 50, ) (UNLIMITEDJURISDICTION)
inclusive, )
19 )
Defendants. )
20 )
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Plaintiff alleges:
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INTRODUCTION
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1. George Mardikian (hereafter referred to as "plaintiff'r"Mardikian") is now and
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at all times mentioned in this complaint has been a resident of the State of California,
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residing in the County of San Mateo.
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2. Defendant Wawanesa General Insurance Company (hereinafter referred to as
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"defendant" or "Wawanesa") is now and at all times mentioned in this complaint was a
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COMPLAINT
1 corporation formed and existing under the laws of the State of California, with its principal
2 place of business located within the County of San Diego. Wawanesa, an insurance
3 company, does business in the State of California and issued the policy of insurance to
4 plaintiffherein insuring plaintiff for the loss and/or damages to his vehicles, existing and
5 "newly acquired vehicles", with such policy issued in approximately 2005 and maintained
6 thereafter and through the time of the incident described herein.
7 3. The true names and capacities of the Defendants Doe 1 through Doe 50, whether
8 individual, corporate, associates or otherwise, are unknown to plaintiffat the time of filing
9 of this Complaint and plaintiff therefore sues said defendants by such fictitious names and
10 will ask leave of court to amend this Complaint to show their true names or capacities when
11 the same have been ascertained. Plaintiffis informed and believes, and therefore alleges, that
12 each of the DOE defendants is, in some manner, responsible for the events and happenings
13 herein set forth and proximately caused injury and damages to the plaintiffas herein alleged.
14 4. At all times herein mentioned, each of the DOE defendants were the agent and
15 employee of each of the remaining defendants and was at all times herein mentioned acting
16 within the scope of said agency and employment.
17 5. In doing all the acts alleged herein and causing damages to the plaintiff, the
18 fictitiously named defendants, and each of them, along with named defendant, acted as joint
19 tortfeasors, in concert, or, in the alternative, were concurrent or successive tortfeasors, with
20 such concurrent acts and/or successive acts ofeach defendant contributing to and constituting
21 a substantial factor in causing plaintiff damages as alleged, and thus each and every
22 defendant is jointly and severally liable for the full extent of plaintiff's damages.
23 Wherefore, as the First Cause of Action, plaintiffalleges
24 FIRST CAUSE OF ACTION
25 (Breach of Contract)
26 6. Plaintiff incorporates by this reference as though fully set forth at length in
27 paragraphs I through 5, inclusive.
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COMPLAINT -2-
7. During approximately 2005, defendant Wawanesa had issued to plaintiffa policy
of automobile insurance which remained in effect thereafter, being renewed with premiums
paid thereon as required, and such policy was in effect during February of 2012. The policy
as issued was in effect after 2005, continuing whereby plaintiffagreed to pay the required
premiums and, by the terms of such policy, Wawanesa agreed to insure plaintifffrom losses
arising &om and related to the damages to his vehicle. In addition to the expressed terms of
such policy of insurance ("contract" ), Wawanesa, as an insurer, was obligated to act in good
faith and to deal fairly with the plaintiffas the insured, including fulfillingthe covenants of
good faith and fair dealing. The policy of insurance as written by Wawanesa included
10 coverage for vehicles under "Comprehensive" coverage, stating in pertinent part:
"COVERAGE D - COMPREHENSIVE
COVERAGE E - COLLUSION
12 INSURING AGREEMENT
13 A. We will pay for direct and accidental loss to "your covered auto"'r any
"non-owned auto", including their equipment, minus any applicable deductible shown in the
14 Declarations.... We will pay for loss to "your covered auto" caused by:
15 l. Comprehensive only it the Declarations indicate that Comprehensive Coverage is
provided for that auto;
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2. "Collision" ...
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Under the "Definition"within the policy, the term "your covered auto" means:
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l. Any vehicle shown in the Declarations.
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2. A "newly acquired vehicle"
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C. Loss caused by the following is considered to be "comprehensive" loss:
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2. Fire"
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Within the written policy issued by Wawanesa, the following is provided with respect
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to "new acquired vehicles":
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" L. "Newly acquired automobile":
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1. "Newly acquired auto" means any of the following types of vehicles you become the
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COMPLAINT -3-
owner of during the policy period:
a. A private passenger auto; or
b. A pickup or van ...
2. Coverage for a "newly acquired auto" is provided as described below. Ifyou ask us
to insure a "newly acquired auto" after a specified time period described below has
elapsed, any coverage we provide for a "newly acquired auto" willbegin at the lime
you request the coverage.
ao For any coverage provided in this policy except Coverage For Damage to
Your Auto, a "newly acquired auto" willhave the broadest coverage we now
provide for any vehicle shown in the Declarations. Coverage begins on the
date you become the owner...
b. Collision Coverage for a "newly acquired vehicle" begins on the date you
become the owner....
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C. Comprehensive Coverage for a "newly acquired auto" begins on the date you
become the owner. However, for this coverage to apply, you must ask us to
insure ifwithin.
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(1) 30 days after you become the owner ifthe Declarations indicate that
13 Comprehensive Coverage applies to at least one auto. In this case, the
"newly acquired" auto will have the broadest coverage we now
14 provide for any auto shown in the Declarations.
15 (2) Four days alter you become the owner if the Declarations do not
indicate that Comprehensive Coverage applies to at least one sum. If
16 you comply with the 4 day requirement and a loss occurred before
you asked us to insure the "newly acquired auto", a Comprehensive
17 deductible of $ 500 will apply.
18 8. Plaintiffperformed all the terms and conditions of the contract to be performed
19 by him, including, but not limited to, the payment of premiums.
20 9. Plaintiff, pursuant to an agreement to purchased the vehicle entered into earlier
21 with the condition of sale being "F.O.B. Lansing, Michigan, became the owner of a 1964
22 Cadillac Eldorado, a "classic vehicle", Vin No. 64E052699 (hereafter referred to as
23 "vehicle") on February 14, 2012, when the vehicle was placed on a truck by the seller for
24 shipment from Lansing, Michigan, to a plaintiffat South San Francisco, California. The
25 purchase agreement by which the vehicle was acquired specifically provided as "Terms of
26 Sale" that "All cars are shipped F.O.B. Lansing, Ml-HOLT AUTO SALES may arrange
27 shipments of cars but assumes no responsibility or liability of the Carrier (Transport
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COMPLAINT -4-
Company)." By virtue of California Commercial Code Sections 2319 and 2401(2), and
Uniform Commercial Code Section 2-319 and Section 2-401(2), risk of loss, as ownership,
passed from the seller to plaintiffas of February 14, 2012 such that plaintiffs became the
owner of the vehicle as of February 14, 2012.
10. Pursuant to the written terms ofthe policy of insurance, Section L, Paragraph 2(c),
which provides that "Comprehensive Coverage for a 'newly acquired auto'egins on the
date you become the owner," Wawanesa policy for Comprehensive Coverage for the Vehicle
began on February 14, 2012 at the time the Vehicle as placed in the hands of the shipper,
subject, however, to a plaintiff, within 30 days after becoming the owner ifrequesting and
10 notifying Wawanesa of the acquisition of the Vehicle. On February 22, 2012, plaintiffgave
notice to Wawanesa of the acquisition of the Vehicle as a "replacement" vehicle requesting
12 the Vehicle be added to the policy, and at such time requesting the removed from the policy
13 a 1997 Chevrolet Camaro from the policy, which was his right to do under the express terms
14 of the written expressed provisions of the insurance policy. By the expressed terms of the
15 policy, the Vehicle was subject to "Comprehensive Coverage" for any covered losses as of
16 February 14, 2012 and thereafter.
17 11. On February 20, 2012, while in transit and in the Los Angeles area, the Vehicle
18 sustained damage &om a fire while in the possession of the carrier, the extent of which was
19 unknown to plaintiffas of February 22, 2012.
20 12. On or about March 29, 2012, prior to the ascertainment of the extent of the
21 damage to the vehicle upon its subsequent delivery and obtaining estimates for the repair of
22 the vehicle and/or it value if repaired, plaintiff submitted a claim to Wawanesa for the
23 damages of the vehicle and/or value of the vehicle. Wawanesa, within thirty days, had a
24 duty to respond and accept the claim based upon the documentation and a prompt unbiased
25 investigation of the claim as liability under the policy was not reasonablely disputable.
26 13. Wawanesa, in response to the claim submitted by the plaintiff, breached the
27 contract of insurance, including breaching the covenant of good faith and fair dealing, by
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COMPLAINT -5-
denying the claim in full, and further breach the contract by:
A. Failing to investigate in good faith the claim for damages in a fair and equitable
manner;
B. Proceeding to conduct a biased investigation, including, but not limited to retaining
purported experts as appraisers and/or legal counsel to render unreasonable and biased
opinion for the sole purpose of denying the claim and/or creating a purported legal issue,
while failing to conduct a thorough, fair and unbiased investigation;
C. Terminating and attempting to terminate the plaintiffs insurance policy as of
February 22, 2012;
10 D. By failing and refusing to give equal consideration to the interest of the insured
as defendant gives to its own financial interest and profit interest.
12 14. As a direct and proximate result of the breach of the contract, including the
13 breach of the implied terms of good faith and fair dealing, plaintiffis entitled to damages in
14 the amount of $ 26,598.66, or more, or according to proof, for repairs to the vehicle, or, in
15 the alternative, the value of Vehicle up to $ 40,000.00, along with interest as may be allowed
16 by law for the delay ofthe payment of the repair costs and estimate for repairs within 30 days
17 of the date of the claim.
18 15. As a further direct and proximate result of the breach of contract, including the
19 breach of the implied terms of good faith and fair dealing, plaintiffis entitled to damages in
20 the amount of approximately $ 4,000.00 to date for "storage" charge for the unrepaired
21 vehicle, and future storage costs and charges, plus any incidental charges, such amount
22 continuing to be incurred, and in a total amount to be determined at trial.
23 WHEREFORE, having stated his first cause ofaction, plaintiffcomplains and alleges:
24 SECOND CAUSE OF ACTION
25 (Breach of Covenants of Good Faith and Fair Dealing-Bad Faith Claim Settlement)
26 16. Plaintiff incorporates by this reference as though fully set forth at length in
27 paragraphs 1 through 5, and 7 through 15, inclusive.
28 17. Defendant, at all times mention herein, owed a duty to act fairly and in good faith
COMPLAINT -6-
to plaintiffin carrying out itsresponsibilities under its insurance policy, including, but not
limited to, the following:
A. Not acting to damage the plaintiff or do acts which unjustifiably denied the
plaintiffthe benefits to which he was entitled under the policy of insurance;
B. Engaging in unfair claims settlement practices as follows:
(1) Misrepresenting to claimants pertinent facts or insurance policy provisions
relating to any coverage at issue.
(2) Failing to adopt and implement reasonable standards for the prompt investigation
and processing of claims arising under insurance policies in a manner which would be
10 consistent with the obligations of good faith and fair dealing.
(3) Not attempting in good faith to effectuate prompt, fair, and equitable settlements
12 of claims in which liability has become reasonably clear.
13 (4) Compelling insured to institute litigation to recover amounts due under an
14 insurance policy by offering substantially less than the amounts ultimately recovered
15 in actions brought by the insureds, when the insureds have made claims for amounts
16 reasonably similar to the amounts ultimately recovered.
17 (5) Attempting to settle a claim by an insured for less than the amount to which a
18 reasonable person would have believed he was entitled by reference to written or
19 printed advertising material accompanying or made part of an application.
20 (6) Failing to provide promptly a reasonable explanation of the basis relied on in the
21 insurance policy, in relation to the facts or applicable law, for the denial of a claim or
22 for the offer of a compromise settlement.
23 (7) Considering the financial and economical interest of the insured rather than
24 considering and seeking only to protect its own financial interest at the detriment of all
25 financial consideration for its insured.
26 (8) Retaining of biased purported experts to render opinions with respect to the
27 plaintiffs claim, but as the facts and law, which were unreasonable with such practices
28 employed to deny the claim of the plaintiffwithout any proper justification and basis.
COMPLAINT -7-
18. As a direct and proximate result of the unexcused bad faith and tortious breach
of contract by the defendant, plaintiff has suffered damages in an amount exceeding
$ 26,598.66, or more, consisting of the failure to pay the benefits to the plaintifffor "repair
costs" within a reasonable time following the notice of the claim, and requiring the plaintiff
to retain counsel and to file the instant litigation to obtain the benefits under the policy for
which the defendant Wawanesa would be reasonable liable and to which the plaintiffwas
reasonably entitled.
19. As a further direct and proximate result of the defendant's tortious breach of the
covenants of good faith and fair dealing, plaintiff has suffered and continues to suffer
10 emotional and mental distress, &ustration, anxiety, humiliation and indignity, all to the
plaintiffs damages in an amount to be determined at trial.
12 20. Plaintiffis informed and believes and thereupon alleges that the acts and conduct
13 of the defendant in denying the benefits to which the plaintiffis and was lawfully entitled
14 was wrongful conduct which was done as part of a practice ofthe defendant Wawanesa done
15 intentionally and in willfuland conscious disregard of the plaintiffs rights and ignoring the
16 rights and interest of the plaintiffs and their insureds.
17 21. In committing the alleged acts, defendant acted with oppression, fraud and malice.
18 At all times mentioned herein, the alleged wrongful and tortious acts were performed or
19 ratified by defendant Wawanesa's managerial employees, who acted with knowledge that
20 defendant Wawanesa's conduct would cause plaintiffharm and damages, and with wanton,
21 reckless and conscious disregards to the injury to the plaintiff and plaintiffs rights.
22 Accordingly, plaintiffis entitled to exemplary and punitive damages according to proof at
23 trial.
24 WHEREFORE, plaintiffprays judgment as follows:
25 1. For general and special damages according to proof at trial;
26 2. For compensatory damages for mental and emotional distress in an amount
27 according to proof;
28 3. For punitive damages to be awarded to plaintiffin an amount appropriate to punish
COMPLAINT -8-
1 and set,an example of defendant;
2 4. For interest on the actual damages at the legal rate from May 1, 2012, or such date
3 which would be reasonable for the defendant to have made the payment of the claim to the
4 plaintiff;
5 5. For costs of suit and attorney fees as permitted by law;
6 6. For such other and further relief as the Court may deem just and proper.
7 Date: September 28, 2012 DAY LAW OFFICES
BY:
Montie S. Day, attorney
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COMPLA|NT
VERIFICATION
I, Montie S. Day, declare:
I am an attorney at law duly admitted and licensed to practice before all courts in the
State of California and I have my professional offices in Henderson, Nevada.
The Plaintiff is absent from the county in which I have my offices.
For that reason I am making this verification on his behalf.
I have read the forgoing complaint for damages and know the contents thereof. The
same is true of my own knowledge, except as to those matters which are therein alleged on
10 information and belief, and as to those matters, I believe them to be true.
I declare under the penalties of perjury under the laws of the State of California that
12 the foregoing is true and correct, and that I executed this verification on September 28, 2012
13 at Henderson, Nevada.
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16 Montie S. Day,
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Attorney
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COMPLAINT - 10-
Preview
1 DAY LAW OFFICES Montie S. Day, ¹073327 2 Attorneys at Law 1235 Casa Palermo Circle 3 4 Henderson, Tel: (208) Nevada 280-3766 Email: msdayesq@aol.corn 89011 $ FILED AN MATEO COUNTY 5 LAW OFFICES Bruce OF BRUCE Attorney ¹ P. ZELIS OCT -I 2012 6 1943 P. Zelis, First Avenue 75312 Ole f I e lor Court Walnut Creek, CA 94597 NKPLtlYORSS~ 7 Tel: (925) 943-6633. Email: zelis@att.net 8 Attorneys for Plaintiff George Mardikian 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 14 GEORGE MARDIKIAN, ) ) CASE NO. 15 Plaintiff, ) ) COMPLAINT FOR MONEY AND DAMAGES 16 vs. ) (BREACH OF CONTRACT; BREACH OF ) THE COVENANTS OF GOOD FAITH AND 17 WAWANESA GENERAL ) FAIR DEALING) INSURANCE COMPANY, a ) 18 corporation, and DOES 1 through 50, ) (UNLIMITEDJURISDICTION) inclusive, ) 19 ) Defendants. ) 20 ) 21 Plaintiff alleges: 22 INTRODUCTION 23 1. George Mardikian (hereafter referred to as "plaintiff'r"Mardikian") is now and 24 at all times mentioned in this complaint has been a resident of the State of California, 25 residing in the County of San Mateo. 26 2. Defendant Wawanesa General Insurance Company (hereinafter referred to as 27 "defendant" or "Wawanesa") is now and at all times mentioned in this complaint was a 28 COMPLAINT 1 corporation formed and existing under the laws of the State of California, with its principal 2 place of business located within the County of San Diego. Wawanesa, an insurance 3 company, does business in the State of California and issued the policy of insurance to 4 plaintiffherein insuring plaintiff for the loss and/or damages to his vehicles, existing and 5 "newly acquired vehicles", with such policy issued in approximately 2005 and maintained 6 thereafter and through the time of the incident described herein. 7 3. The true names and capacities of the Defendants Doe 1 through Doe 50, whether 8 individual, corporate, associates or otherwise, are unknown to plaintiffat the time of filing 9 of this Complaint and plaintiff therefore sues said defendants by such fictitious names and 10 will ask leave of court to amend this Complaint to show their true names or capacities when 11 the same have been ascertained. Plaintiffis informed and believes, and therefore alleges, that 12 each of the DOE defendants is, in some manner, responsible for the events and happenings 13 herein set forth and proximately caused injury and damages to the plaintiffas herein alleged. 14 4. At all times herein mentioned, each of the DOE defendants were the agent and 15 employee of each of the remaining defendants and was at all times herein mentioned acting 16 within the scope of said agency and employment. 17 5. In doing all the acts alleged herein and causing damages to the plaintiff, the 18 fictitiously named defendants, and each of them, along with named defendant, acted as joint 19 tortfeasors, in concert, or, in the alternative, were concurrent or successive tortfeasors, with 20 such concurrent acts and/or successive acts ofeach defendant contributing to and constituting 21 a substantial factor in causing plaintiff damages as alleged, and thus each and every 22 defendant is jointly and severally liable for the full extent of plaintiff's damages. 23 Wherefore, as the First Cause of Action, plaintiffalleges 24 FIRST CAUSE OF ACTION 25 (Breach of Contract) 26 6. Plaintiff incorporates by this reference as though fully set forth at length in 27 paragraphs I through 5, inclusive. 28 COMPLAINT -2- 7. During approximately 2005, defendant Wawanesa had issued to plaintiffa policy of automobile insurance which remained in effect thereafter, being renewed with premiums paid thereon as required, and such policy was in effect during February of 2012. The policy as issued was in effect after 2005, continuing whereby plaintiffagreed to pay the required premiums and, by the terms of such policy, Wawanesa agreed to insure plaintifffrom losses arising &om and related to the damages to his vehicle. In addition to the expressed terms of such policy of insurance ("contract" ), Wawanesa, as an insurer, was obligated to act in good faith and to deal fairly with the plaintiffas the insured, including fulfillingthe covenants of good faith and fair dealing. The policy of insurance as written by Wawanesa included 10 coverage for vehicles under "Comprehensive" coverage, stating in pertinent part: "COVERAGE D - COMPREHENSIVE COVERAGE E - COLLUSION 12 INSURING AGREEMENT 13 A. We will pay for direct and accidental loss to "your covered auto"'r any "non-owned auto", including their equipment, minus any applicable deductible shown in the 14 Declarations.... We will pay for loss to "your covered auto" caused by: 15 l. Comprehensive only it the Declarations indicate that Comprehensive Coverage is provided for that auto; 16 2. "Collision" ... 17 Under the "Definition"within the policy, the term "your covered auto" means: 18 l. Any vehicle shown in the Declarations. 19 2. A "newly acquired vehicle" 20 21 C. Loss caused by the following is considered to be "comprehensive" loss: 22 23 2. Fire" 24 Within the written policy issued by Wawanesa, the following is provided with respect 25 to "new acquired vehicles": 26 " L. "Newly acquired automobile": 27 1. "Newly acquired auto" means any of the following types of vehicles you become the 28 COMPLAINT -3- owner of during the policy period: a. A private passenger auto; or b. A pickup or van ... 2. Coverage for a "newly acquired auto" is provided as described below. Ifyou ask us to insure a "newly acquired auto" after a specified time period described below has elapsed, any coverage we provide for a "newly acquired auto" willbegin at the lime you request the coverage. ao For any coverage provided in this policy except Coverage For Damage to Your Auto, a "newly acquired auto" willhave the broadest coverage we now provide for any vehicle shown in the Declarations. Coverage begins on the date you become the owner... b. Collision Coverage for a "newly acquired vehicle" begins on the date you become the owner.... 10 C. Comprehensive Coverage for a "newly acquired auto" begins on the date you become the owner. However, for this coverage to apply, you must ask us to insure ifwithin. 12 (1) 30 days after you become the owner ifthe Declarations indicate that 13 Comprehensive Coverage applies to at least one auto. In this case, the "newly acquired" auto will have the broadest coverage we now 14 provide for any auto shown in the Declarations. 15 (2) Four days alter you become the owner if the Declarations do not indicate that Comprehensive Coverage applies to at least one sum. If 16 you comply with the 4 day requirement and a loss occurred before you asked us to insure the "newly acquired auto", a Comprehensive 17 deductible of $ 500 will apply. 18 8. Plaintiffperformed all the terms and conditions of the contract to be performed 19 by him, including, but not limited to, the payment of premiums. 20 9. Plaintiff, pursuant to an agreement to purchased the vehicle entered into earlier 21 with the condition of sale being "F.O.B. Lansing, Michigan, became the owner of a 1964 22 Cadillac Eldorado, a "classic vehicle", Vin No. 64E052699 (hereafter referred to as 23 "vehicle") on February 14, 2012, when the vehicle was placed on a truck by the seller for 24 shipment from Lansing, Michigan, to a plaintiffat South San Francisco, California. The 25 purchase agreement by which the vehicle was acquired specifically provided as "Terms of 26 Sale" that "All cars are shipped F.O.B. Lansing, Ml-HOLT AUTO SALES may arrange 27 shipments of cars but assumes no responsibility or liability of the Carrier (Transport 28 COMPLAINT -4- Company)." By virtue of California Commercial Code Sections 2319 and 2401(2), and Uniform Commercial Code Section 2-319 and Section 2-401(2), risk of loss, as ownership, passed from the seller to plaintiffas of February 14, 2012 such that plaintiffs became the owner of the vehicle as of February 14, 2012. 10. Pursuant to the written terms ofthe policy of insurance, Section L, Paragraph 2(c), which provides that "Comprehensive Coverage for a 'newly acquired auto'egins on the date you become the owner," Wawanesa policy for Comprehensive Coverage for the Vehicle began on February 14, 2012 at the time the Vehicle as placed in the hands of the shipper, subject, however, to a plaintiff, within 30 days after becoming the owner ifrequesting and 10 notifying Wawanesa of the acquisition of the Vehicle. On February 22, 2012, plaintiffgave notice to Wawanesa of the acquisition of the Vehicle as a "replacement" vehicle requesting 12 the Vehicle be added to the policy, and at such time requesting the removed from the policy 13 a 1997 Chevrolet Camaro from the policy, which was his right to do under the express terms 14 of the written expressed provisions of the insurance policy. By the expressed terms of the 15 policy, the Vehicle was subject to "Comprehensive Coverage" for any covered losses as of 16 February 14, 2012 and thereafter. 17 11. On February 20, 2012, while in transit and in the Los Angeles area, the Vehicle 18 sustained damage &om a fire while in the possession of the carrier, the extent of which was 19 unknown to plaintiffas of February 22, 2012. 20 12. On or about March 29, 2012, prior to the ascertainment of the extent of the 21 damage to the vehicle upon its subsequent delivery and obtaining estimates for the repair of 22 the vehicle and/or it value if repaired, plaintiff submitted a claim to Wawanesa for the 23 damages of the vehicle and/or value of the vehicle. Wawanesa, within thirty days, had a 24 duty to respond and accept the claim based upon the documentation and a prompt unbiased 25 investigation of the claim as liability under the policy was not reasonablely disputable. 26 13. Wawanesa, in response to the claim submitted by the plaintiff, breached the 27 contract of insurance, including breaching the covenant of good faith and fair dealing, by 28 COMPLAINT -5- denying the claim in full, and further breach the contract by: A. Failing to investigate in good faith the claim for damages in a fair and equitable manner; B. Proceeding to conduct a biased investigation, including, but not limited to retaining purported experts as appraisers and/or legal counsel to render unreasonable and biased opinion for the sole purpose of denying the claim and/or creating a purported legal issue, while failing to conduct a thorough, fair and unbiased investigation; C. Terminating and attempting to terminate the plaintiffs insurance policy as of February 22, 2012; 10 D. By failing and refusing to give equal consideration to the interest of the insured as defendant gives to its own financial interest and profit interest. 12 14. As a direct and proximate result of the breach of the contract, including the 13 breach of the implied terms of good faith and fair dealing, plaintiffis entitled to damages in 14 the amount of $ 26,598.66, or more, or according to proof, for repairs to the vehicle, or, in 15 the alternative, the value of Vehicle up to $ 40,000.00, along with interest as may be allowed 16 by law for the delay ofthe payment of the repair costs and estimate for repairs within 30 days 17 of the date of the claim. 18 15. As a further direct and proximate result of the breach of contract, including the 19 breach of the implied terms of good faith and fair dealing, plaintiffis entitled to damages in 20 the amount of approximately $ 4,000.00 to date for "storage" charge for the unrepaired 21 vehicle, and future storage costs and charges, plus any incidental charges, such amount 22 continuing to be incurred, and in a total amount to be determined at trial. 23 WHEREFORE, having stated his first cause ofaction, plaintiffcomplains and alleges: 24 SECOND CAUSE OF ACTION 25 (Breach of Covenants of Good Faith and Fair Dealing-Bad Faith Claim Settlement) 26 16. Plaintiff incorporates by this reference as though fully set forth at length in 27 paragraphs 1 through 5, and 7 through 15, inclusive. 28 17. Defendant, at all times mention herein, owed a duty to act fairly and in good faith COMPLAINT -6- to plaintiffin carrying out itsresponsibilities under its insurance policy, including, but not limited to, the following: A. Not acting to damage the plaintiff or do acts which unjustifiably denied the plaintiffthe benefits to which he was entitled under the policy of insurance; B. Engaging in unfair claims settlement practices as follows: (1) Misrepresenting to claimants pertinent facts or insurance policy provisions relating to any coverage at issue. (2) Failing to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies in a manner which would be 10 consistent with the obligations of good faith and fair dealing. (3) Not attempting in good faith to effectuate prompt, fair, and equitable settlements 12 of claims in which liability has become reasonably clear. 13 (4) Compelling insured to institute litigation to recover amounts due under an 14 insurance policy by offering substantially less than the amounts ultimately recovered 15 in actions brought by the insureds, when the insureds have made claims for amounts 16 reasonably similar to the amounts ultimately recovered. 17 (5) Attempting to settle a claim by an insured for less than the amount to which a 18 reasonable person would have believed he was entitled by reference to written or 19 printed advertising material accompanying or made part of an application. 20 (6) Failing to provide promptly a reasonable explanation of the basis relied on in the 21 insurance policy, in relation to the facts or applicable law, for the denial of a claim or 22 for the offer of a compromise settlement. 23 (7) Considering the financial and economical interest of the insured rather than 24 considering and seeking only to protect its own financial interest at the detriment of all 25 financial consideration for its insured. 26 (8) Retaining of biased purported experts to render opinions with respect to the 27 plaintiffs claim, but as the facts and law, which were unreasonable with such practices 28 employed to deny the claim of the plaintiffwithout any proper justification and basis. COMPLAINT -7- 18. As a direct and proximate result of the unexcused bad faith and tortious breach of contract by the defendant, plaintiff has suffered damages in an amount exceeding $ 26,598.66, or more, consisting of the failure to pay the benefits to the plaintifffor "repair costs" within a reasonable time following the notice of the claim, and requiring the plaintiff to retain counsel and to file the instant litigation to obtain the benefits under the policy for which the defendant Wawanesa would be reasonable liable and to which the plaintiffwas reasonably entitled. 19. As a further direct and proximate result of the defendant's tortious breach of the covenants of good faith and fair dealing, plaintiff has suffered and continues to suffer 10 emotional and mental distress, &ustration, anxiety, humiliation and indignity, all to the plaintiffs damages in an amount to be determined at trial. 12 20. Plaintiffis informed and believes and thereupon alleges that the acts and conduct 13 of the defendant in denying the benefits to which the plaintiffis and was lawfully entitled 14 was wrongful conduct which was done as part of a practice ofthe defendant Wawanesa done 15 intentionally and in willfuland conscious disregard of the plaintiffs rights and ignoring the 16 rights and interest of the plaintiffs and their insureds. 17 21. In committing the alleged acts, defendant acted with oppression, fraud and malice. 18 At all times mentioned herein, the alleged wrongful and tortious acts were performed or 19 ratified by defendant Wawanesa's managerial employees, who acted with knowledge that 20 defendant Wawanesa's conduct would cause plaintiffharm and damages, and with wanton, 21 reckless and conscious disregards to the injury to the plaintiff and plaintiffs rights. 22 Accordingly, plaintiffis entitled to exemplary and punitive damages according to proof at 23 trial. 24 WHEREFORE, plaintiffprays judgment as follows: 25 1. For general and special damages according to proof at trial; 26 2. For compensatory damages for mental and emotional distress in an amount 27 according to proof; 28 3. For punitive damages to be awarded to plaintiffin an amount appropriate to punish COMPLAINT -8- 1 and set,an example of defendant; 2 4. For interest on the actual damages at the legal rate from May 1, 2012, or such date 3 which would be reasonable for the defendant to have made the payment of the claim to the 4 plaintiff; 5 5. For costs of suit and attorney fees as permitted by law; 6 6. For such other and further relief as the Court may deem just and proper. 7 Date: September 28, 2012 DAY LAW OFFICES BY: Montie S. Day, attorney 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLA|NT VERIFICATION I, Montie S. Day, declare: I am an attorney at law duly admitted and licensed to practice before all courts in the State of California and I have my professional offices in Henderson, Nevada. The Plaintiff is absent from the county in which I have my offices. For that reason I am making this verification on his behalf. I have read the forgoing complaint for damages and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on 10 information and belief, and as to those matters, I believe them to be true. I declare under the penalties of perjury under the laws of the State of California that 12 the foregoing is true and correct, and that I executed this verification on September 28, 2012 13 at Henderson, Nevada. 14 15 16 Montie S. Day, / Attorney 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 10-