Wednesday, April 14, 2021

Wexler v. FAIR (Cal. Ct. App. - April 14, 2021)

The majority and the dissent ostensibly disagree vigorously in this case.  But I'm not really certain they do.  Or at least don't think they disagree in the fundamental way alleged.

Here's how Justice Stratton's dissent puts it.  A characterization that's not absurd -- though, as I'll note in a second, perhaps isn't entirely accurate either:

"Everyone check your homeowners insurance policy. Be especially vigilant if you live in the quarter of California households which are multigenerational, or are one of the 40 percent of California parents whose adult children have moved back home. Those other adults in your household have probably accumulated personal property of their own. According to the majority, if you, as the homeowner and a named policyholder, try to protect your family members by paying a premium for a policy that purports to provide coverage for the personal property of resident family members, you are benefitting the insurance company, not your family members. If your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property. Your family member will not be able to recover because the insurance company, which did not request or require you to identify the family member by name, will be able to deny coverage because you did not identify the family member by name. The insurance company gets to keep your premiums, which is a pretty sweet deal for the insurer but not for you or your family member."

The part that's undoubtedly true about what Justice Stratton says is that under the majority's opinion, the other adults have no standing to sue under your insurance policy.  That's squarely the holding, and results in the dismissal of the adult child's claim in the present case.

But the part of Justice Stratton's dissent that seems fairly clearly false -- at least to me -- is the critical part in which she says:  "If your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property."  As I read the majority opinion, that's wrong.  The parents can, indeed, sue, and then (if they want) give the money to the adult children whose property was damaged.  Sure, Justice Wiley's opinion isn't nearly as clear as I would have it be on this point, and you have to slog through a lot of history and tangential analysis to get to the ultimate practical reality.  But Justice Wiley says:  "This fundamental understanding of the insurable interest doctrine makes it plain the Talbots had an insurable interest in Wexler’s property stored in their house while Wexler lived there with them."  Which means that the parents are indeed allowed to recover for whatever property of their adult kid got damaged, which in turn means that the scenario advanced at the outset of Justice Stratton's dissent doesn't actually exist.

Moreover, it seems like Justice Stratton may well know that this is the case.  Remember:  She starts her dissent with the claim that under the majority's opinion, "[i]f your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property."  But, as I've suggested above, that's not actually true, and later in the dissent, Justice Stratton says:  "The majority is unconcerned with Wexler’s inability to assert her own interests because it mistakenly believes that the Talbots can recover on behalf of Wexler."  She then goes on to explain that, in her view, the parents can't recover on behalf of their child because the parents don't have an "insurable interest" in their adult child's property.  (Arguing that "[t]here is nothing in the FAC to support the majority’s belief that Wexler’s personal property is 'family property' and so the Talbots can recover for its loss. To analyze around the concept of insurable interest is not only strained, but it ignores a keystone of California insurance law.")

The problem with Justice Stratton's analysis, however, is that the majority opinion expressly holds that the parents have an insurable interest in the child's property.  Hence can sue.  So it's not -- as a practical matter -- that the parents "will not be able to sue" for the property.  They definitely can.  How do we know that's true?  Because the majority expressly so holds.

What Justice Stratton is really saying is that, in truth, the parents do not have an insurable interest in the child's property.  And without an insurable interest, the parents can't sue.  She might perhaps be right as a doctrinal matter.  But once the Court of Appeal holds -- as it clearly does here -- that the parents have an insurable interest, then the parents can sue.  Period.  Hence obviating the (admittedly) disastrous consequences with which Justice Stratton begins her dissent.

So the real dispute between the majority and the dissent, in my view, is simply over how to achieve doctrinally the result on which they both agree.  Justice Stratton says that the child should be able to directly sue over the destruction of her property, either as a third party beneficiary or through other doctrinal or policy-specific means.  Justice Wiley, by contrast, says that the parents get to sue.  No one disputes that someone gets to sue.  It's simply a fight over which one -- parent or child -- has the right.

Which makes the consequences of today's opinion much less practically significant.  Sure, there might be some instances in which the parent and children are estranged or the like, or there are some other barriers to getting the kid the money from the insurance company for her destroyed property.  But in most cases, the solution's an easy one under majority's holding:  have the parents sue for the damage and give the money to the kid.

Yes, Justice Stratton would be right that this solution doesn't work if -- as she believes -- the parents don't have an insurable interest in the property.  But the majority holds they do.  Hence they do.  And can sue.  Problem solved.

You can get their either Justice Wiley's or Justice Stratton's way -- and, doctrinally, one of those ways might be right (or preferable), but either way, you get there.  Thankfully.

It's unfortunate, I think, that the opinions are written the way they are.  I would have preferred that Justice Stratton not begin her dissent with the ostensible consequences of the majority opinion, both because I think they're unreal and because I fear that some future litigants (e.g., insurance companies) might use that analysis to their advantage in future litigation or settlements.  Similarly, I would have preferred for Justice Wiley to have more clearly and repeatedly said that what Justice Stratton says in her dissent is false:  That, yes, parents can sue.  He says so, and I think clearly.  But, personally, I'd have responded more directly and repeatedly to the dissent.  As majority opinions sometimes do.  If only to make it crystal, crystal clear.