Sogomonian

*174 Opinion

Defendants Levon and Elichka Sogomonian (herein defendants) appeal from a summary judgment entered in favor of plaintiff Imperial Casualty and Indemnity Company (herein Imperial) on both Imperial’s complaint and defendants’ cross-complaint.

Factual and Procedural Background

On July 14, 1982, Imperial issued a homeowner’s policy to defendants which provided casualty and fire insurance protection for defendants’ home. On or about October 9, 1982, defendants’ home was destroyed by fire. Following an investigation, Imperial concluded that certain misrepresentations and a number of omissions had been made by the defendants in their application for the policy which they had submitted to Imperial on June 7, 1982. Based thereon, Imperial filed this action on August 15, 1983, seeking: 1. Rescission of the policy ab initio, together with the judgment of the court so declaring; and

2. Repayment, with interest, of advance payments (against the then anticipated fire insurance proceeds) of $30,300 which Imperial made to the defendants on or about November 18, 1982.

On November 30, 1983, defendants filed a cross-complaint which sought compensatory and punitive damages…

I respectfully dissent from the foregoing opinion and decision.

I concur with the majority opinion in all respects except (1) the conclusion that there was no merit in defendants’ contention that the trial court erred in granting judgment against them on the cause of action in their cross-complaint alleging violations by Imperial of its statutory obligations under Insurance Code section 790.03, subdivision (h), and (2) the majority’s holding that rescission of the policy of insurance bars any claim by the insured under Insurance Code section 790.03, subdivision (h)(hereafter subdivision (h)).

The majority opinion errs in that it is based upon a misunderstanding of the nature and purpose of subdivision (h).

*187 The majority opinion treats the unfair practices proscribed by subdivision (h) as being dependent on the continued existence of the insurance contract. It holds that because, on rescission of that contract, all rights of the insured under the contract are extinguished, all rights of the insured to prosecute a claim against the insurer for violation of section 790.03, subdivision (h) are also extinguished. That is not the nature or the purpose of the statute.

The…

Defendants Levon and Elichka Sogomonian (herein defendants) appeal from a summary judgment entered in favor of plaintiff Imperial Casualty and Indemnity Company (herein Imperial) on both Imperial's complaint and defendants' cross-complaint.

On July 14, 1982, Imperial issued a homeowner's policy to defendants which provided casualty and fire insurance protection for defendants' home. On or about October 9, 1982, defendants' home was destroyed by fire. Following an investigation, Imperial concluded that certain misrepresentations and a number of omissions had been made by the defendants in their application for the policy which they had submitted to Imperial on June 7, 1982. Based thereon, Imperial filed this action on August 15, 1983, seeking: 1. Rescission of the policy ab initio, together with the judgment of the court so declaring; and

2. Repayment, with interest, of advance payments (against the then anticipated fire insurance proceeds) of $30,300 which Imperial made to the defendants on or about November 18, 1982. [1]

On November 30, 1983, defendants filed a cross-complaint which sought compensatory and punitive damages allegedly arising from…