Filed 4/11/14 Insurance Exchange of the Automobile Club v. Dinehart CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


INTERINSURANCE EXCHANGE OF                                           B240171
THE AUTOMOBILE CLUB,
                                                                     (Los Angeles County
         Plaintiff and Appellant,                                    Super. Ct. No. PC047711)

         v.

VIVIANE DINEHART,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Melvin D. Sandvig, Judge. Reversed with directions to dismiss.


         Lewis Brisbois Bisgaard & Smith, Raul L. Martinez for Plaintiff and Appellant.


         Shernoff Bidart, Echeverria Bentley, Michael J. Bidart, George L. Bentley, Steven
Schuetze, Steven Messner for Defendant and Respondent.


                  ___________________________________________________
       In a declaratory relief action, the parties disputed coverage on an automobile
insurance policy. The trial court ruled in favor of the insured and the insurer appealed.
After the opening brief was filed, the insurer settled the claims against its insured. The
appeal is moot because there is no longer a justiciable controversy to resolve.
                                          FACTS
       The parties stipulated to the facts. On March 1, 2008, Viviane Dinehart lost
control of her Chevrolet Suburban on Interstate 10 and crashed. Viviane’s husband Denis
Dinehart, a passenger, was killed and their daughter Marina Dinehart was badly injured.
Viviane’s daughter Angela Dinehart was not in the vehicle at the time of the accident.
Viviane and Denis Dinehart are insured by a policy from the Interinsurance Exchange of
the Automobile Club (Auto Club).
                               PROCEDURAL HISTORY
       Several lawsuits arose from the accident. Marina sued her mother Viviane for
injuries she sustained in the accident and for the wrongful death of her father Denis, and
Angela sued Viviane for the wrongful death of Denis. In response, Auto Club brought an
action for declaratory relief alleging that it has no duty to defend or indemnify Viviane
against claims made by members of her household.
       At trial, the court found coverage under the Policy “based on the plain terms of the
policy and the undisputed facts that Marina Dinehart and Angela Dinehart were not
‘using’ the vehicle at the time of the accident.” The court entered judgment in favor of
the Dineharts on January 29, 2012.
                                      DISCUSSION
       Appeal is taken from the judgment. (Code Civ. Proc., § 904.1, subd. (a)(1).)
After the appeal was perfected and the opening brief was filed, the parties settled. On
September 20, 2013, the trial court approved a settlement for Marina Dinehart, who
sustained brain injuries in the accident. This resulted in complete settlement of the
claims of Marina and Angela against Viviane for wrongful death and personal injuries.
Further, Viviane reached a settlement with Auto Club of her claims for breach of contract
and breach of the implied covenant of good faith and fair dealing.

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       Viviane contends that the settlement and releases obtained by Auto Club “covered
all claims relating to the accident.” Her brief states that “[b]ecause the claims asserted in
the declaratory-relief action . . . have been resolved, Viviane believes that there is no
remaining active controversy and that the case has become moot.”
       Auto Club contends that the appeal is not moot, for several reasons.
       First, the parties’ settlement did not encompass Auto Club’s declaratory relief
action. This argument is not persuasive. In its lawsuit, Auto Club prays for a judicial
declaration that it “is under no duty to defend or indemnify Viviane Dinehart for either
the claim for the wrongful death of Denis Dinehart or the injury claim of Marina
Dinehart” because the four Dineharts lived in the same household.
       By settling all of the wrongful death and injury claims against Viviane, Auto Club
has mooted its lawsuit asserting that it has no duty to Viviane under its policy. Courts
decide actual controversies with judgments that can be “‘“carried into effect, and [do] not
give opinions upon moot questions or abstract propositions, or [ ] declare principles or
rules of law which cannot affect the matter in issue in the case before it.”’” (Eye Dog
Foundation v. State Board of Guide Dogs for the Blind. (1967) 67 Cal.2d 536, 541.) If it
is impossible for the court to grant the plaintiff any effectual relief, the appeal must be
dismissed unless “there remain material questions for the court’s determination,” such as
a question of continuing public interest. (Ibid.; John A. v. San Bernardino City Unified
Sch. Dist. (1982) 33 Cal.3d 301, 307.)
       Once the claims against Viviane settled, there were no remaining material
questions, nor can any relief be given to Auto Club in the event of a reversal, nor is there
a question of public interest. When settlement is reached in an insurance dispute that
results in a compete payoff, the issue of whether the insurance policy covers plaintiff’s
claim is moot and need not be decided. (Pepper Industries, Inc. v. Home Ins. Co. (1977)
67 Cal.App.3d 1012, 1019-1020.)
       Second, Auto Club states that Viviane “threatened” to bring an individual or class
action claim for unfair/unlawful business practices. (Bus. & Prof. Code, § 17200.) To
date, Viviane has not filed an action under that statute. It is premature to decide an issue

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in a threatened lawsuit that may never be pursued. To do so would amount to resolution
of a controversy that does not currently exist and may never exist.
       Third, Auto Club believes the issue is important in the event other intra-family
lawsuits arise in the future. It reasons that “the appeal involves the interpretation of a
contract potentially applicable to other persons insured by the Exchange on a fact pattern
that could recur.” The courts do not decide potential disputes without an actual
controversy that is related to a specific factual situation. (Li v. Yellow Cab Co. (1975) 13
Cal.3d 804, 826.)
                                      DISPOSITION
       Under the authority of Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134, and
Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th
939, 944, the judgment is reversed as moot. This reversal does not imply that the
judgment was erroneous on the merits or that it was not, but is solely for the purpose of
returning jurisdiction over the case to the superior court by vacating the otherwise final
judgment, solely on the ground of mootness. The superior court is directed to dismiss the
underlying action as moot. Parties to bear their own costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       CHAVEZ, J.


       FERNS, J.*




_______________________________________________________________

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

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