You Asked For It

In Transport Insurance Co. v. TIG Insurance Co. (Jan. 13, 2012, A122573), __ Cal.App.4th __ [2012 DJDAR 587] the appellant was estopped from asserting that the court erroneously instructed the jury on the statute of limitations because it agreed to the instruction at trial.

Transport sued TIG and Seaton Insurance Company for failing to pay on reinsurance contracts.  Transport moved for summary adjudication on the affirmative defense that the claims were barred by the statute of limitations, asserting that the statute was tolled during the time an insurer is investigating a first party insurance claim.  The trial court, however, concluded that a reinsurance cause of action accrues either 1) when the reinsurer denies a covered claim or 2) when the reinsurer takes an unreasonable amount of time to communicate its coverage decision.  The court found a triable issue of fact on this question and denied the motion.

At trial the parties presented a jury instruction tracking the court's ruling.  TIG offered an alternative instruction.  Transport "vigorously" argued that the agreed-upon instruction be given, and the court concurred.  In its special verdict, the jury found that Transport did not file its lawsuit timely and judgment was entered for defendants.

On appeal, Transport argued that the jury instruction was erroneous, but the appellate court found that the claim was barred by the invited error doctrine.  By insisting that the instruction be given, Transport could not contend that it misstated the law.  The court of appeal acknowledged that the invited doctrine error doctrine does not apply when a party acquiesces in an erroneous judicial determination, in order to make the best of a bad situation, but that was not the case here, it said.  Although the trial court had ruled previously on the question of when the cause of action accrued, the ruling made in connection with the summary adjudication motion was not binding at trial and could be revisited by the court.  Transport did not suggest that the court reconsider its earlier ruling, did not object to the instruction, and could not complain on appeal.