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Court of Appeal:
Suit Against German Insurer Might Be Triable in LASC
By a MetNews Staff Writer
Div. Seven of the Court of Appeal for this district held yesterday that a globe-trotting woman might be able to maintain an action in the Los Angeles Superior Court against a German insurance company that does not do business in California, holding that under the facts of the case, the requisite ties to the state exist.
Miriam Abu Sharkh sued on her own behalf and on behalf of her two minor children, one now deceased, based on denial of coverage. She resided in California at the time she brought her action on March 9, 2017 but was living with her children in Peru when she filed her first amended complaint on Nov. 6, 2017.
She later relocated to Germany and Spain.
The policy was procured by German Academic Exchange Service covering students, researchers and lecturers who are abroad.
Action Dismissed
On Oct. 11, 2018, then-Judge Gerald Rosenberg (now retired) granted the motion of the German insurance company, Continentale Krankenversicherung A.G, and Global Medical Management, Inc., a medical case management company headquartered in Florida, to dismiss based on the doctrine of forum non conveniens, ruling:
“For Plaintiff, who resides in Spain, litigation in Germany is not any less convenient than litigation in California...All parties are outside of California. California has no interest in providing a forum for disputes between nonresidents involving claims about which California has no interest.”
When Sharkh’s lawyer pointed out at the hearing on the motion that his client had moved back to California the previous month, Rosenberg remarked:
“She’s been moving around. It doesn’t make sense.”
In his unpublished opinion reversing the judgment of dismissal, Presiding Justice Dennis M. Perluss said the first inquiry is whether there is a suitable alternative forum to California—and he declared that Germany is such a forum—and the second question is whether the private interests of the parties and the public’s interests would be served by a trial here and whether those interests predominate over those of the alternative forum.
Cost-Prohibitive
The defendants contended that Germany was the proper forum because the insurance contract, which is in German, provides that German law governs.
Arguing against the proposition that Germany is an appropriate forum, Sharkh proclaimed that litigating there would be cost-prohibitive, pointing out that attorneys there must be paid in advance and if she lost, she would be liable for the defendants’ attorney fees. (Perluss at one point in the opinion said that clients in Germany “do not have the option of hiring an attorney on a contingency basis” but later recited that Sharkh contended that she “may not be able to find an attorney to work on a contingency basis.”)
Perluss wrote:
“While these factors may make litigating in Germany more expensive, less convenient and ultimately impossible for Sharkh, they do not support a finding Germany is an unsuitable alternative forum as a matter of law.”
Sharkh has apparently brought suit in Germany. In a footnote, Perluss said:
“On remand, if the trial court is otherwise inclined to grant defendant’s motion, the court should stay, rather than dismiss the action pending suit in Germany to verify Germany in fact is a suitable forum and Sharkh’s claims are not barred by the governing limitations periods.”
Weighing Interests
Perluss found that Rosenberg abused his discretion in failing to weigh private and public interests, saying:
“The trial court’s ruling relied solely on its finding that none of the parties resided in California at the time of the hearing and, therefore, California had no interest in the dispute. While location of the parties at the time of the litigation is certainly relevant to the court’s analysis, it cannot be the exclusive factor on which a court relies….
“Further, the court’s finding California had no interest in the dispute was unreasonable given the facts of this case. While the trial court found Sharkh resided in Europe at the time of the hearing, it is undisputed Sharkh had lived continuously in California from 2007 to mid-2016 and [her children] had lived exclusively in California from the time of their births in 2011 and 2013, respectively, until mid-2016. Accordingly, until the time it cancelled the family’s insurance coverage in 2016, Continentale performed its obligations under the policy in California by evaluating coverage for expenses incurred in California and paying claims to California medical providers. The wrongful actions and resulting injuries alleged in the first amended complaint all took place while the family resided in California. These circumstances give California a definite interest in the litigation, even if, like any other single factor, that interest is not outcome-determinative.”
The jurist on to say:
“However,… California’s interest in the dispute is not dispositive. On remand, the trial court must weigh that interest against Germany’s interest, if any, in hearing the case…and evaluate those interests within the context of the other relevant private and public interest factors. In doing so, the court should consider Sharkh’s current residence and how it affects the convenience of California as a forum.”
The case is Sharkh v. Continentale Krankenversicherung A.G., B303219.
Robert J. McKennon and Andrea Soliz of the Newport Beach firm of McKennon Law Group represented the plaintiffs and Gary S. Pancer and Adam Le Berthon of the downtown Los Angeles firm of Wilson Elser Moskowitz Edelman & Dicker acted for the defendants.
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