Michael v. Aetna Life & Casualty Ins. Co. (2001)

[Modification fn. * of opinion (88 Cal. App. 4th 925; 106 Cal.Rptr.2d 240) on denial of petition for rehearing.]

MAHFOUZ MICHAEL, Plaintiff and Respondent, v. AETNA LIFE & CASUALTY INSURANCE CO. et al., Defendants and Appellants.

THE COURT.-

It is ordered that the opinion filed herein on April 30, 2001, be modified as follows:

1. On page 15, lines 5 and 6 [88 Cal. App. 4th 938, advance report, foll.2d full par.], subheading (F)(1) is modified as follows:

1. Disclosure Required Because of Substantial Business Dealings During a Pending Proceeding

2. On page 15, lines 18 and 19 [88 Cal. App. 4th 938, advance report, last parl, lines 15-16], the word "substantial" is to be inserted betweeen the words "current" and "business" and the page citation is changed from "777-778" to "775-778" so that the sentence and citation read:

This current substantial business relationship required vacation of the appraisal award. (Id. at pp. 775-778.)

3. On page 19, line 10 [88 Cal. App. 4th 941, advance report, lines 4-5], subheading (G)(1) is modified as follows:

1. Grier Did Not Have a Substantial Ongoing Employment Relationship With Aetna.

4. The paragraph commencing at the bottom of page 19 and continuing to the top of page 20 [88 Cal. App. 4th 941, advance report, 1st full par.] is modified as follows:

Based on Grier's work on the Sea Mar International case and the Bradford Personnel v. Trammel Crow case, Michael tried to characterize Grier's [89 Cal. App. 4th 406h] involvement in the Michael case as an "ongoing employment relationship" with Aetna. Michael admitted, however, that the Sea Mar International matter ended in January 1996. Grier's work on the Bradford Personnel v. Trammell Crow case ended in July 1997. We have reviewed the record and conclude that Grier did not perform substantial work on the Michael v. Aetna matter before Grier contacted Michael's appraiser, Mr. Fox, on August 1, 1997. Moreover, as we conclude, infra, it is undisputed that while he worked on the Bradford Personnel matter, Grier did not know of Aetna's presence in the Bradford Personnel case or that Aetna was the source of the funds used to pay him for his services. Therefore a person aware of the facts would not reasonably entertain a doubt that Grier would be able to be impartial, and Grier was not required to disclose the Sea Mar International or Bradford Personnel v. Trammell Crow cases.

5. Footnote 6 on page 19 [88 Cal. App. 4th 941, advance report] is deleted.

There is no change in the judgment.

Appellants' petition for rehearing is denied.

FN *. This modification requires movement of text affecting pages 938-939 and 941-943 of the bound volume report.