Commercial Union Assurance Co. v. City of San Jose

Appellant insurer has appealed from a judgment of dismissal entered following its failure to amend its complaint for damages within the time allowed after the trial court had sustained the defendant city’s demurrer with leave to amend. The demurrer had been sustained on the ground that, more than six months had elapsed between the date of rejection of the claim for the damages alleged in the complaint and the commencement of the action. (See Gov. Code, § 945.6, subd. (a)(1).)

The salient facts as revealed by the allegations of the complaint are as follows: On February 5, 1978, the insurer’s insured suffered property damage from falling tree branches, allegedly caused by the negligence of the city. The damage was covered by an insurance policy then in force between the insurer and its insured. On April 14, 1978, the insured presented a claim for $30,000 damages to the city. (See Gov. Code, § 905.) On May 18, 1978, the city rejected the claim in its entirety and gave notice thereof to the claimant. (See Gov. Code, § 913.) On June 27, 1978, by reason of its obligations under the policy, the insurer paid its insured $550 for lost rents. No action was taken by either the…