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Willful
(Brizuela)
 

Willful

C.        Dismissal of Brizuela’s Action

            Brizuela contends that the trial court should not have dismissed his action, but rather, pending the scheduling of the examination under oath, should have deferred or postponed a determination of the claim on the merits.  Brizuela never submitted or agreed to submit to examination under oath.  After six months of Brizuela’s unfulfilled promises to provide dates certain for the examination, CalFarm was legally entitled to deny coverage, thereby precluding Brizuela’s claim, and the trial court properly dismissed Brizuela’s action. [5]

            Brizuela argues that dismissal of his action was improper because his failure to appear for examination was not willful.  Under New York law, summary judgment dismissing an insured’s complaint because of the insured’s failure to submit to examination under oath has been held to be inappropriate without affording the insured a last opportunity to comply, unless the insured’s failure to appear was willful.  (See, e.g., 232 Broadway Corp. v. Calvert Ins. Co. (1989) 540 N.Y.S.2d 324, 325; Rosenthal v. Prudential Property & Cas. Co. (1991 2d. Cir.) 928 F.2d 493, 494-495; Gould Investors, L.P. v. General Insurance Company of Trieste & Venice (1990 S.D.N.Y.) 737 F.Supp. 812,  817.)  There is no California authority allowing such an opportunity.[6]  Even if the standard prescribed by New York law were applicable, Brizuela’s conduct here could properly be deemed willful.  When the insured’s failure to fulfill his obligations under an insurance policy ‘“is indicative of a pattern of non-co-operation [sic] for which no reasonable excuse for noncompliance has been proffered,’ his conduct is properly deemed willful.”  (Rosenthal v. Prudential Property & Casualty Co., supra, 928 F.2d at pp. 494-495.)  Brizuela’s persistent failure to provide CalFarm with available dates for the examination under oath evidences a pattern of non-cooperation. (Id. at p. 495 [insured’s failure to appear deemed willful because purported “scheduling conflicts” could not justify 13 month delay of examination under oath].)  The trial court properly dismissed Brizuela’s action. Brizuela v. Calfarm Ins. 3/3/04 CA2/5 B160875

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 (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  

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