HARRY HIBBS v. ALLSTATE INSURANCE COMPANY

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Court of Appeal, Second District, California.

HARRY R. HIBBS et al., Plaintiffs and Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant and Appellant.

2d Civil Nos. B215812, B217658

Decided: March 24, 2011

CERTIFIED FOR PUBLICATION

ORDER MODIFYING OPINION AND DENYING REHEARING

It is ordered that the opinion filed herein on February 24, 2011, be modified as follows:

On page 9, the following paragraphs, which includes a footnote to be added as footnote 2, are to be inserted after the third full paragraph and before the last full paragraph:

In Allstate's petition for rehearing, it cites for the first time California Code of Regulations, title 16, section 3353, subdivision (g).[FN 2] The regulation is promulgated by the Department of Consumer Affairs, Bureau of Automotive Repair.   The regulation provides that under “[u]nusual circumstances,” the customer may approve a repair estimate by telephone.   Allstate claims the regulation substantially relaxes the literal requirements of section 9884.9.

Allstate cites no authority in support of the claim that an administrative agency has the power by regulation to substantially relax the requirements of a statute.   Even if a regulation can substantially relax the requirements of a statute, the regulation here applies only to unusual circumstances.   There indeed may be circumstances where a customer is unwilling or unable to go to the repair shop or to wait to receive a written estimate by mail or fax.   But Allstate points to no such circumstance here.   It is undisputed that Jessica appeared at Body Tech in person to sign the tear down authorization.   There is no suggestion in any of the declarations that she would be unavailable to review a written repair estimate.   Nor does Koch's declaration indicate he made any attempt to provide Hibbs with a written estimate prior to commencing repairs.   Koch declares only that he went over the estimate with Jessica on the telephone.

There are no unusual circumstances here that would warrant relaxing the requirements of section 9884.9.   Moreover, in her declaration, Jessica denies that she authorized the repair over the telephone or otherwise.   Thus, in any event, there is a triable issue of fact.

[FN 2]:  California Code of Regulations, title 16, section 3353, subdivision (g) reads as follows:

“Unusual Circumstances;  Authorization Required.   When the customer is unable to deliver the motor vehicle to the dealer during business hours or if the motor vehicle is towed to the dealer without the customer during business hours, and the customer has requested the dealer to take possession of the motor vehicle for the purpose of repairing or estimating the cost of repairing the motor vehicle, the dealer shall not undertake the diagnosing or repairing of any malfunction of the motor vehicle for compensation unless the dealer has complied with all of the following conditions:

“(1) The dealer has prepared a work order stating the written estimated price for labor and parts, as specified in subsection (a) or (b), necessary to repair the motor vehicle;  and

“(2) By telephone, fax or e-mail, the customer has been given all of the information on the work order and the customer has approved the work order;  and

“(3) The customer has given oral, written or electronic authorization to the dealer to make the repairs and the dealer has documented the authorization as provided in subsection (c) and Section 9884.9 of the Business and Professions Code.”

There is no change in judgment.

Allstate's petition for rehearing is denied.

THE COURT: