Litigant who Represents Himself has an Idiot for a Client

No Good Deed Goes Unpunished Because Court Refused to Ignore Pro Se Plaintiff

Apr 13, 2022

Plaintiff Refused to Accept that Liability Insurers Defend the Insured but Never Retain a Lawyer to Pursue a Tort Claim on Behalf of the Insured

After an automobile accident involving Neco Moss, Juan Manuel Orozco, Robert Henry Hartman, and two other motorists on the eastbound 210 freeway in Fontana, California, Orozco crossed a double yellow line to enter the carpool lane at a relatively low speed in the path of Hartman’s truck. Hartman struck Orozco’s vehicle, Orozco hit Moss’s vehicle, Moss hit a fourth vehicle, and the fourth vehicle hit a fifth. Moss sued Hartman and Orozco and a jury found Hartman was not negligent and found Orozco had been negligent but awarded no damages. Moss appealed that verdict in a companion case, and Court of Appeal affirmed the judgment.

In Neco Moss v. 21st Century Insurance Company, E074487, California Court of Appeals, Fourth District, Second Division (April 7, 2022) Moss claimed that 21st Century defrauded him by refusing to provide a lawyer to sue the other drivers involved in the accident.

FACTS

Moss joined 21st Century to the lawsuit against the drivers. 21st Century was ultimately severed, and after considerable wrangling, the case against 21st Century was reduced to a single cause of action for fraud. Moss alleges 21st Century falsely represented to him that they would hire counsel for him to sue the other drivers. The trial judge ruled undisputed evidence established Moss could not show the elements of reliance, reasonable reliance, causation, or damages required for a fraud cause of action, and entered summary judgment for 21st Century.

Moss, who represented himself on appeal as he did in the trial court, appealed the summary judgment order. As he did in his appeal from the judgment in favor of the drivers, Moss spends considerable time arguing the drivers and other insurance companies should not have been allowed to defend themselves because the trial court entered default judgments against them earlier in the case for failing to answer earlier versions of the complaint in a timely fashion. However, the trial court set aside those defaults and the trial court reasonably refused to reinstate them.

Moss reported a claim to 21st Century, which settled with Scott for property damage and sought reimbursement via subrogation against the other drivers’ insurers in arbitration. 21st Century also paid medical payments benefits to Moss and paid for Moss’s rental car. Regardless, Moss who was properly indemnified by 21st Century, alleged fraud. The only issue at the summary judgment stage was whether the evidence was sufficient to go forward to trial on Moss’s cause of action against 21st Century-whether they had committed fraud by telling Moss they would hire an attorney to sue the other drivers on his behalf.

SUMMARY JUDGMENT

Adjuster’s McGann and Grimley declared that in late 2014, 21st Century received copies of lawsuits Moss had filed against the other drivers, their insurers, and other parties, and represented there was no indication Moss had been sued by any of these parties so no action needing defense. Grimley said Moss called 21st Century again on January 26, 2015 and reported he had gone to a court hearing in his lawsuit and complained no one from 21st Century had showed up to represent him.

21st Century supported summary judgment based on Moss’s failure to establish that he had detrimentally relied on the representation, reasonably relied on it, or that the promise caused harm to Moss. They argued he couldn’t show he relied to his detriment because he actually prosecuted the case on his own and had a full jury trial.

Moss did no show any promise had caused him damages or that he suffered harm, because he in fact sued Hartman and Orozco on his own and the jury returned a verdict finding Orozco liable, but that Moss had suffered no damages.

The trial judge granted 21st Century’s motion and later issued a written ruling stating that 21st Century met its initial burden on the issues of detrimental reliance, causation, and damages, and Plaintiff fails to submit evidence raising any disputed issues of material fact in response.

ANALYSIS

21st Century challenged Moss’s fraud claim on the ground he could not establish essential elements of the claim. The elements of fraud are:

a misrepresentation (false representation, concealment, or nondisclosure);
scienter or knowledge of its falsity;
intent to induce reliance;
justifiable reliance; and
resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

The policy and the declarations of two adjusters negated the misrepresentation and justifiable reliance elements essential to Moss’s fraud claim and shifted the burden to Moss to set forth the specific facts showing that a triable issue of material fact exists as to those elements. To raise a triable issue of fact, Moss submitted his own declaration and argued a trier of fact could conclude 21st Century had promised to provide him with counsel in prosecuting a lawsuit against the other motorists.

In his declaration, Moss said he contacted 21st Century when he first filed the claim for coverage. He said at that time 21st Century assured him, “he did not have to retain a lawyer because they would hire one for him.” However, that representation is not inconsistent with 21st Century’s claim, and does not fill the gap of providing evidence that they promised to provide Moss with an attorney to prosecute claims against third parties to recover damages after successfully defending him against liability.

The Court of Appeal concluded that trial judge correctly granted summary judgment in 21st Century’s favor. He did present evidence that he misunderstood 21st Century’s duties under the policy, but that is no basis for a fraud claim.

ZALMA OPINION

It is time that trial and appellate judges stamp out frivolous suits and appeals filed by pro se plaintiffs who seem to have no idea what insurance does and what promises are made by an insurance company. The courts should stop them from suing an insurance company for not providing a service that was not promised by the policy. This entire lawsuit and appeal was idiotic, brought by a person who had no idea what he was doing, and wasted the time of a trial and an appellate court, not to mention the amounts paid by the insurer to defend itself against an insured who had received every benefit promised by the policy.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com

and zalma@zalma.com.

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