The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)
ARGUMENT THREE
COURT HAS DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND COMPLAINT WHERE AMENDMENT CAN CURE DEFECTS IF ANY ARE FOUND
It is judicial policy to liberally construe a pleading’s allegation with view to ensure substantial justice for both parties per Code of Civil Procedure, section 452. Daniel Black’s relationship with the Halls regarding their policy for Holly Street and their reliance on his advice indicates that there are grounds to make him personally liable for negligence, intentional emotional stress, negligent emotional stress, misrepresentation, negligent misrepresentation.
The premise of Black’s demurrer is that he cannot be sued as an agent of the insurer, and the complaints generally states he acted within his scope of employment. The meaning of the statement to plaintiffs is that he committed acts while employed by XYZ, whether some of the acts were outside the scope of his employment. The Halls could not discern at the time the complaint was filed shortly before the statute of limitations all the facts to allege.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Plaintiffs attached the policy information that Black mailed to the Halls over the passed years which did not have all necessary pages. Black knew of the property status and did not inform or provide the Halls with information regarding the coverage. Whether Black intentionally did not provide information, or was negligent in not providing the information in order to continue the premium payments is one for a trier of facts.
Leave to amend is appropriate when there is a reasonable probability that the defect in the complaint can be cured by amendment or when the complaint can be liberally construed to state a cause of action and the plaintiff has not been afforded an opportunity to amend, as stated in City of Chula Vista v. County of San Diego (1994) 23 CA 4th 1713.
The Court has discretion to grant leave to amend the pleading upon such terms as may be just and should fix the time which the amendment or amended pleading shall be fixed per Code of Civil Procedure 472 a (c). An amendment should be allowed where the defect, though one of substance may possibly be cured by supplying omitted allegations.
However, as argued, Black has passed his statue of limitations to bring a demurrer and it should be dismissed, and Black answer the complaint with all his affirmative defenses.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.