1

Filed 4/2/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

MICHAEL BOCK et al.,

Plaintiffs and Appellants,

v.

CRAIG HANSEN,

Defendant and Respondent.

 A136567

 (Napa County

 Super. Ct. No. 2657438)

A 41-foot long, 7,300 pound tree limb crashed onto the home of appellants 

Michael and Lorie Bock, an incident they reported to their homeowner’s insurer, 

Travelers Property and Casualty Insurance Company (Travelers). Travelers assigned 

respondent Craig Hansen to adjust the loss, whose behavior, as alleged by the Bocks, can 

best be described as appalling. On Hansen’s first visit to the scene (which lasted no more 

than 15 minutes), he altered the scene before taking pictures, spoke derogatorily to

Mr. Bock, and misrepresented the policy coverage, causing the Bocks to begin the clean 

up themselves, in the course of which Mrs. Bock was injured. Travelers refused the 

Bocks’ request to replace Hansen, who in the course of adjusting the loss is alleged to 

have revised an estimate to include a false statement by the Bocks, conspired with an 

unlicensed contractor to create a false report, and engaged in various other misconduct.

The Bocks sued Travelers and Hansen, their claims against Hansen alleging 

negligent misrepresentation and intentional infliction of emotional distress. The trial 

court sustained Hansen’s demurrer without leave to amend, concluding that the Bocks 

“have presented no convincing argument for allowing these claims to stand against 

defendant Hansen in what is a contract based action.” We conclude otherwise and 

reverse, holding first that negligent misrepresentation can be asserted against an 
2

insurance adjuster, and that such claim was adequately pleaded here. We also hold that 

the intentional infliction of emotional distress claim was not adequately pleaded, but that 

the trial court abused its discretion in denying leave to amend.1

BACKGROUND

The Facts

The facts for our analysis are those alleged by the Bocks, all of which are admitted 

by Hansen’s demurrer (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967), 

as are any facts that may be implied or inferred from those expressly alleged. (Traders 

Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) Those facts must be 

accepted no matter how unlikely or improbable (Del E. Webb Corp. v. Structured 

Materials Co. (1981) 123 Cal.App.3d 593, 604), and without regard to the Bocks’ ability 

to prove them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 

35 Cal.3d 197, 213-214.) Those facts are these:

In December 2001, the Bocks purchased from Travelers a homeowner’s policy 

covering their home in the city of Angwin, Napa County. The policy covered certain 

risks of physical loss to their home and provided additional coverage for debris removal. 

Early on the morning of September 9, 2010, a large limb—41 feet long, some two 

feet in diameter, and weighing 7,300 pounds—broke off from an oak tree in the Bocks’ 

front yard, “crashing into the chimney, the front of the house, and through the living 

room window.” The giant limb caused three other large limbs to fall, which came to rest 

on a portion of the Bocks’ chimney. The limbs “caused significant damage to the Bocks’ 

chimney, which had been in working condition prior to the incident and was used as the 

 

1

This case was argued on January 22, 2014, and submitted that day. Today, 

April 2, 2014, the day the opinion is filed, the clerk’s office received a letter from counsel 

advising that the parties have settled and enclosing a stipulation for dismissal of the 

appeal. We do not have to accept such stipulation. (See Cal. Rules of Court, 

rule 8.244(c)(2).) And we do not, especially in light of the issues presented. (Bay 

Guardian Co. v. New Times Media, LLC (2010) 187 Cal.App.4th 438, 445, fn. 2; 

Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1014, fn. 3; DVD Copy Control 

Assn., Inc. v. Bunner (2004) 116 Cal.App.4th 241, 245, fn. 2.)
3

Bocks’ primary heating source for their home.” The limbs also broke three windows and 

caused damage to the interior of the home, the Bocks’ fence, and Mrs. Bock’s car. 

The Bocks reported the incident to Travelers that same day. Travelers did not 

send an adjuster to the scene until the following day, September 10, when Hansen 

arrived. Upon arrival, Hansen told Mrs. Bock that he only had a few minutes to review 

the damage, and in fact spent no more than ten to fifteen minutes at their home. Before 

Hansen took any pictures of the damage, he pushed several branches out of the living 

room window. When Mrs. Bock asked Hansen why he had not taken the pictures first, he 

ignored her, telling her to “clean up the mess,” and demanding she clean up the living 

room. Moving outside, Hansen also removed the limbs leaning against the chimney and 

the fence before taking any pictures, all the while making derogatory comments about 

PG&E, Mr. Bock’s employer, which Mrs. Bock found rude and upsetting. 

Before leaving, Hansen wrote a check for $675.69. When Mrs. Bock said that the 

amount would not be enough to even clean up, let alone repair, the damage, Hansen told 

her that cleanup was not covered under the policy and that she should contact “friends 

and family members with chainsaws” to clean up the limbs and the mess in the house and 

backyard. Relying on these statements, Mrs. Bock attempted to clean up the broken 

glass, sustaining a cut on her hand. 

After Hansen left, Mr. Bock discovered that the fallen limbs had caused significant 

damage to the chimney. The next day, September 11, Mrs. Bock sent an email to 

Travelers Property Field Manager Frank Blaha, reporting the chimney damage. She also 

requested that another adjuster be assigned to their claim because Hansen was “rude, 

disinterested, and rushed during his initial visit.” 

Travelers ignored the request, and Hansen prepared an estimate, which Blaha sent 

to the Bocks on September 13. The estimate, which totaled $3,479.54 , reflected minimal 

amounts for each category of repairs needed, and was unreasonably low, as the Bocks 

had obtained an estimate the same day in the amount of $2,065 for cut up and removal of

the tree limbs alone.
4

On September 15, Hansen again came to the house, this time accompanied by 

Blaha. The Bocks were present, as was Ron Priest, a licensed general contractor who 

was there at the Bocks’ request. Hansen and Blaha were shown the significant cracks in 

the chimney, as well as gouges where the limbs had hit it, and Hansen took pictures of 

the damage to the chimney. Again, Hansen falsely told the Bocks that their policy did 

not cover the cost of clean up, explaining, “If a car had hit the tree causing it to fall, then 

the clean-up would be covered but since the wind caused the limb to fall, the cost to clean 

up the limbs was not covered.” Hansen told Mr. Bock to get his chainsaw and remove 

the limbs himself, and as he did so, Hansen yelled, “Atta boy! See you can do it! Now 

go get a few friends to finish it up.” 

On September 17, Travelers provided the Bocks with a revised estimate for the 

loss. While the revised estimate increased the amount payable to $3,655.23, it eliminated 

amounts previously included for damage to the hardwood floor and fence, based on the 

false statement that the Bocks had confirmed during the reinspection that there was no 

damage to those items, despite obvious physical evidence to the contrary. 

That same day, acting at the request of Travelers, Roy Anderson of Vertex 

Construction Services (Vertex) inspected the Bocks’ house. Neither Vertex nor 

Anderson had a valid California contractor’s license. Because the limbs and debris had 

already been removed, Mrs. Bock provided Anderson a disk containing digital images 

that showed the fallen limbs and damage on the morning of the accident. Anderson sent 

Hansen a report dated September 29, detailing the results of his inspection and which 

concluded—falsely, the Bocks alleged—that “[n]o scarring, gouging, or scuff marks were 

noted on the siding or trim materials on the northeast corner of the residence.” 

Anderson’s report also falsely stated that “[t]here was no visual evidence that the fallen 

tree branch impacted the chimney, or that the fallen tree branch . . . propagated any 

damage to the natural rock chimney,” instead concluding that the “fireplace appear[ed] to 

be in good and serviceable condition.” Finally, Anderson’s report concluded that the 

observed cracks in the chimney were minor and were “due to the age of the chimney and 

the residence,” and that inspection of the interior and exterior of the house revealed that 
5

“[t]he only damage . . . due to the fallen tree branch [was] the broken window and 

frame.” Hansen did not perform any tests to support his conclusion, and did not include 

in his report any statements from the Bocks or Priest. 

By letter dated October 1, Hansen informed the Bocks that based on the Vertex 

report Travelers was denying coverage for the chimney damage. 

The Bocks asked Priest, a licensed contractor, to review the Vertex report and 

provide a response. He did, preparing a report disputing the false statements contained in 

the Vertex report and describing how the tree limb damaged the chimney, a conclusion he 

reached having inspected the property three times. On January 14, 2011, the Bocks, 

through their attorney, submitted additional information to Travelers, including Priest’s 

report, and requested that Travelers reconsider its coverage determination. Travelers 

never responded. 

The Proceedings Below

The Bocks filed a complaint naming Travelers, Hansen, and Vertex. The 

complaint asserted six causes of action, including five against Travelers, styled as 

follows: first, breach of contract; second, breach of the implied covenant of good faith 

and fair dealing (bad faith); third, intentional misrepresentation (false promise with no 

intent to perform); fourth, intentional misrepresentation (false statement); and sixth,

violation of Business and Professions Code section 17200 et seq. The fourth cause of 

action, for intentional misrepresentation, was also alleged against Hansen. Two causes of 

action, the fifth, for intentional interference with contract, and the sixth, were alleged 

against Vertex.

2

Travelers demurred to the third, fourth, and sixth causes of action on the ground 

that each failed to state a claim. Travelers also filed a motion to strike all allegations that 

it acted with malice, oppression, and fraud, and all requests for punitive damages and 

attorney fees. As to the third cause of action, promise without intent to perform, 

 

2 Vertex answered the original complaint, as well as the first amended complaint , 

and its involvement is not pertinent to the issues before us.
6

Travelers argued that the complaint failed to allege any facts demonstrating that Travelers 

never intended to perform under the terms of the policy at the time it was issued to the 

Bocks. As to the fourth cause of action, false statement, Travelers argued that the 

complaint failed to allege the specificity required of a fraud claim, and was an improper 

attempt by the Bocks to turn a contract dispute into a fraud claim. And as to the sixth

cause of action, violation of Business and Professions Code section 17200, Travelers 

argued that the Bocks failed to identify a California law that Travelers allegedly violated 

and failed to allege conduct that was unfair or fraudulent, since a section 17200 claim 

cannot be based on mere claims mishandling. 

The First Amended Complaint

Before Travelers’ demurrer came on for hearing, the Bocks filed a first amended 

complaint (FAC). They withdrew their claim for intentional misrepresentation based on 

a false statement, but added claims for negligent misrepresentation (fourth cause of 

action) and intentional infliction of emotional distress (a new fifth cause of action). Both 

claims were alleged against Travelers and Hansen, and are the causes of action involved 

in this appeal.

The fourth cause of action, negligent misrepresentation, alleged that Hansen 

falsely told the Bocks that their policy did not cover the cost of clean up; that Hansen

either knew the representations were false when he made them, or he made them with 

reckless disregard of their truth; and that the Bocks relied on Hansen’s false statements

and performed the cleanup on their own, to their detriment. 

The fifth cause of action, intentional infliction of emotional distress, alleged that 

the actions of both Travelers and Hansen were extreme and outrageous and were known 

by them to be substantially certain to cause the Bocks significant distress. In support of 

this allegation, the Bocks asserted that defendants abused their position of power over 

them to falsely induce them to perform the cleanup; purposely ignored information 

demonstrating coverage when they denied the claim; and withheld information from 

Vertex when the chimney was inspected—all to “justify [defendants’] predetermined 

course of denying payments justly due to [the Bocks] under the policy.” 
7

Travelers again demurred to all causes of action except for the breach of contract 

and bad faith claims. Travelers’ fundamental argument was that the causes of action 

were all premised on Travelers’ alleged mishandling of a claim, and was in essence a 

dispute properly asserted only as claims for breach of contract and bad faith. Travelers 

also filed another motion to strike, again seeking to strike all allegations of malice, 

oppression, and fraud, and all requests for punitive damages and attorney fees. 

Following the Bocks’ opposition, and Travelers’ reply, the demurrer and motion to 

strike came on for hearing on March 13, 2012. Ten days later, the court issued its brief, 

four-paragraph ruling, sustaining the demurrer without leave to amend. The substance of 

the order reads in its entirety is as follows:

“Defendant’s demurrer to the causes of action for intentional and negligent 

misrepresentation, intentional infliction of emotional distress and unfair business 

practices is SUSTAINED, without leave to amend.

“It is clear from the allegations, and from the arguments made in plaintiffs’ 

opposition, that this action is strictly contract based. None of the facts alleged in the 

[First Amended Complaint] support a fraud based claim, and plaintiffs have not 

suggested any facts they could allege that would support a misrepresentation claim or a 

claim for intentional infliction of emotional distress. Because none of these causes of 

action are [sic] supported, there is also no basis to include a claim for unfair business 

practices. 

“The court notes that plaintiffs previously amended their complaint in response to 

a demurrer raising these same arguments as to fraud claims in the original complaint. 

Because plaintiffs have not successfully cured the defects noted in that earlier demurrer, 

and have not set forth facts and argument suggesting that the defects can be cured, the 

court will sustain the demurrer to the subject causes of action without leave to amend.” 

The court also granted Travelers’ motion to strike, again without leave to amend,

explaining in full as follows: “Defendant’s motion to strike plaintiffs’ claims for punitive 

damages and for private attorney general attorney’s fees is GRANTED, without leave to 

amend. As noted above, the court sustains without leave to amend all causes of action 
8

upon which plaintiffs’ claims for punitive damages and attorney’s fees rest. The FAC 

simply contains no allegations to support these claims, and the court finds no basis for 

allowing leave to file a second amended complaint.”3

The court ordered Travelers to answer the remaining causes of action within ten

days, which it did. 

The next month, Hansen filed his own demurrer to the two causes of action against 

him, negligent misrepresentation and intentional infliction of emotional distress. As to 

the claim for negligent misrepresentation, Hansen argued that the claim failed for four 

reasons: (1) the Bocks failed to show that Hansen owed them an actionable legal duty; 

(2) the Bocks were simply trying to reconstitute their breach of contract claim against 

Travelers as a negligent misrepresentation claim against him; (3) the Bocks had 

constructive knowledge of their policy and thus could not justifiably rely on Hansen’s 

statement; and (4) the documents attached to the first amended complaint showed that 

Travelers did actually pay for debris removal. As to the claim for intentional infliction of 

emotional distress, Hansen argued that the Bocks failed to allege extreme and outrageous 

conduct, and that a mere denial of benefits is insufficient to support a claim of infliction 

of emotional distress. 

The Bocks filed opposition. As to the cause of action for negligent 

misrepresentation, the Bocks argued that, while case law may hold that an adjuster cannot 

be held liable for breach of contract or bad faith, such authority is “wholly irrelevant to 

whether [Hansen] can be held liable for his own deceit.” The Bocks also disputed 

Hansen’s claim that Travelers paid all cleanup and removal costs. 

As to the emotional distress claim, the Bocks argued that Hansen ignored 

overwhelming evidence that the tree limb hit and cracked the chimney; insulted and 

 

3 While the issue of punitive damages is not before us, we find the trial court’s 

ruling on the motion to strike curious, as punitive damages may be available when an 

insured prevails on a tort claim for breach of the implied covenant of good faith and fair 

dealing. (Blue Shield of California Life & Health Ins. Co. v. Superior Court (2011) 

192 Cal.App.4th 727, 730, fn. 1.)
9

disparaged them; altered the scene of the accident before taking photographs; 

misrepresented the terms of the policy; prepared false claim reports; conspired with 

Vertex to prepare an intentionally false report; and knowingly relied on the false report in 

order to deny a legitimate claim. Finally, the Bocks requested leave to amend if the court 

determined that the first amended complaint lacked specificity. 

Hansen filed a reply, noting that the Bocks completely ignored the court’s prior 

ruling dismissing these same causes of action against Travelers. In addition to disputing 

the merits of the Bocks’ arguments, Hansen urged the court to sustain the demurrer 

without leave to amend because the Bocks had not demonstrated how they could amend 

the complaint to cure its deficiencies. 

The court heard argument on Hansen’s demurrer, at the conclusion of which it 

took the matter under submission.4 The following week, the court issued a twoparagraph order, the one substantive paragraph of which reads in its entirety as follows:

“Defendant Hansen’s demurrer to the FAC is sustained, without leave to amend. 

In sustaining co-defendant Travelers’ demurrer, this court previously ruled that plaintiff’s 

complaint does not, and cannot, state causes of action for negligent misrepresentation and 

intentional infliction of emotional distress. The court recognizes that this demurrer is 

brought by a different defendant, but plaintiffs have presented no convincing argument 

for allowing these claims to stand against defendant Hansen in what is a contract based 

action.” 

Hansen moved for dismissal of the first amended complaint and requested 

judgment in his favor. The court granted the motion, and entered judgment for Hansen. 

This timely appeal followed. 

DISCUSSION

Standard of Review

Our standard of review is de novo, as we exercise our independent judgment to 

determine whether the complaint states a cause of action as a matter of law. (Traders 

 

4

The transcript of the hearing is not in the record before us.
10

Sports, supra, 93 Cal.App.4th at p. 43.) We give the complaint a reasonable 

interpretation, reading it as a whole and viewing its parts in context. (Blank v. Kirwan 

(1985) 39 Cal.3d 311, 318.) 

Negligent Misrepresentation Can Lie Against an Insurance Adjuster, and 

Such a Claim Was Pleaded Here

As noted, the trial court held that a negligent misrepresentation claim cannot lie 

against an insurance adjuster as a matter of law, adopting the argument made by Hansen 

below. Hansen makes the same argument here, beginning his brief with the fundamental 

argument that he cannot be held personally liable for negligent misrepresentation “based 

on conduct that occurred while adjusting a claim because, as a matter of law, he does not 

owe plaintiffs a legal duty.” Or, as Hansen succinctly puts it later, “Courts have held that 

agents and employees of insurance companies do not owe a duty to the insured; instead, 

any liability for their actions lies on the insurer so long as the agency was disclosed to the 

insured and the conduct took place within the course and scope of such agency. 

(Sanchez v. Lindsey Morden Claims Services, Inc. (1999) 72 Cal.App.4th 249, 253 

(Sanchez); Lippert v. Bailey (1966) 241 Cal.App.2d 376, 382.)” We are not persuaded, 

certainly not by the two cases cited.

Lippert involved insurance agents who were involved in the initial procurement of 

the insurance policy, not an adjuster involved in adjusting a loss. It has nothing to do 

with the circumstances here. And Sanchez is distinguishable.

Sanchez, supra, 72 Cal.App.4th 249, arose in the context of a cargo insurance 

policy issued to Sanchez, a mover. Some property he was moving for a customer was 

damaged during a move, and Sanchez made a claim on the policy for repair of that

property, which Sanchez said would cost $12,000 and take a week. The insurer retained 

defendant Lindsey Morden Claims Services (Lindsey), an independent adjuster, to 

investigate and adjust the loss. Sanchez advised Lindsey that immediate repairs were 

required because the purchaser of the property was suffering business losses. Sanchez’s

advice went unheeded, and three months passed before the claim was paid and the repairs 
11

completed. As a result the customer sued Sanchez, and obtained a judgment against him

for $1,325,000. (Id. at p. 251.)

Sanchez sued the insurer for breach of the insurance policy and also sued the 

adjuster on a negligence theory. The adjuster demurred, arguing it had no contract with 

Sanchez and owed him no duty of care. The trial court sustained the demurrer without 

leave to amend, and the Court of Appeal affirmed, following a six-page analysis of why 

no duty of care was owed that would support a claim for negligence. (Sanchez, supra, 

72 Cal.App.4th at pp. 250–255.)5

Sanchez is inapplicable here. The Bocks do not allege negligence. They allege 

negligent misrepresentation. They are different torts, as the Supreme Court expressly 

observed in Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407: “[N]either the courts 

(ourselves included), the commentators, nor the authors of the Restatement Second of 

Torts have made clear or careful distinctions between the tort of negligence and the 

separate tort of negligent misrepresentation. The distinction is important not only 

because of the different statutory bases of the two torts, but also because it has practical 

implications for the trial of cases in complex areas . . . . [¶] Negligent misrepresentation is 

a separate and distinct tort, a species of the tort of deceit.” In short, the elements of each 

tort are different. Perhaps more importantly, the policies behind each tort sometimes call 

for different results even when applied to the same conduct. (Id. at pp. 396–397, 

406-407, 412–413.) 

It is beyond dispute that, in addition to breach of contract, various tort theories are 

available to insureds against their insurers. The most prominent, of course, is bad faith. 

There are others as well, as the leading California treatise points out: “When supported 

by appropriate facts, an insurer’s mishandling of a claim . . . may also be actionable under 

one or more of the following alternative tort theories: [¶] . . . [¶] Negligent 

Misrepresentation.” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The 

 

5

In the course of its lengthy exposition, Sanchez observed that “indeed, 

negligence is not among the theories of recovery generally available against insurers.” 

(Sanchez, supra, 72 Cal.App.4th at p. 254.)
12

Rutter Group 2013) ¶ 11:9, p. 11-3 (Croskey).) And the treatise goes on to state, in point 

blank terms: “The insurer’s agents and employees may have committed some 

independent tort in the course of handling the third party claims; e.g., misrepresentation 

or deceit, invasion of privacy, intentional infliction of emotional distress, etc. In such 

event, they can be held personally liable, even though not parties to the insurance 

contract. (See Doctors’ Co. v. Sup. Ct. (Valencia)[(1989) 49 Cal.3d 39,] 47;

Gruenberg v. Aetna Ins. Co.[(1973) 9 Cal.3d 566, 576]; and Younan v. Equifax Inc. 

(1980) 111 Cal.App.3d 498, 511 [(Younan)].)” (Croskey, supra, ¶ 12:104, p. 12A-36, 

italics added.)

Witkin is similar: “Tort recovery for improper claims practices may be based on 

more intentional torts than breach of the implied covenant . . . . These include the 

following: [¶] . . . [¶] (2) Negligent Misrepresentation.” (2 Witkin, Summary of Cal. 

Law (10th ed. 2005) Insurance, § 251, p. 371.) This law is well grounded in policy.

As quoted above, Hansen’s fundamental position, based on Sanchez, is that he 

owed no duty to the Bocks. It is true that, as in negligence, “responsibility for negligent 

misrepresentation rests upon the existence of a legal duty, imposed by contract, statute or 

otherwise, owed by a defendant to the injured person. The determination of whether a 

duty exists is primarily a question of law.” (Eddy v. Sharp (1988) 199 Cal.App.3d 858, 

864.) We answer that question of law against Hansen, and easily find such duty here.

In Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, the 

Supreme Court recognized that while the relationship between the insurer and insured is 

not a true fiduciary one, it is nevertheless “special,” citing and quoting from cases that 

have used various terms to describe that relationship: “[L]ater cases have built upon this 

premise and declared that an insurer and its insured have a ‘special relationship’ 

[citations]. Under this special relationship, an insurer’s obligations are greater than those 

of a party to an ordinary commercial contract. [Citation.] In particular, an insurer is 

required to ‘give at least as much consideration to the welfare of its insured as it gives to 

its own interests.’ [Citation.] Cases have referred to the relationship between insurer and 

insured as a limited fiduciary relationship [citation]; as ‘akin to a fiduciary relationship’ 
13

[citation]; or as one involving the ‘qualities of decency and humanity inherent in the 

responsibility of a fiduciary’ [citation]. [¶] The insurer-insured relationship, however, is 

not a true ‘fiduciary relationship’ in the same sense as the relationship between trustee 

and beneficiary, or attorney and client. [Citation.] It is, rather, a relationship often 

characterized by unequal bargaining power [citation] in which the insured must depend 

on the good faith and performance of the insurer [citations]. This characteristic has led 

the courts to impose ‘special and heightened’ duties, but ‘[w]hile these “special” duties 

are akin to, and often resemble, duties which are also owed by fiduciaries, the 

fiduciary-like duties arise because of the unique nature of the insurance contract, not

because the insurer is a fiduciary.’ ” (Id. at pp. 1150–1151.)

Such special relationship leads to the conclusion that Hansen, the employee of the 

party in the special relationship, had a duty to the Bocks. Likewise, the general law of 

negligent misrepresentation.

It is generally said that “California courts have recognized a cause of action for 

negligent misrepresentation, i.e., a duty to communicate accurate information, in two 

circumstances. The first situation arises where providing false information poses a risk of 

and results in physical harm to person or property. The second situation arises where 

information is conveyed in a commercial setting for a business purpose.” (Friedman v. 

Merck & Co. (2003) 107 Cal.App.4th 454, 477.) The setting here involves both: 

Mrs. Bock was injured as a result of Hansen’s misrepresentation. And Hansen said what 

he said for a business purpose.

Hansen attempts to diminish the extent of Ms. Bock’s injury, deeming it this 

nothing but an “incidental injury [that] does not render the negligent misrepresentation 

claim actionable.” We find the potential consequences of such assertion dangerous. 

Perhaps Mrs. Bock’s injury was merely an “incidental injury.” Perhaps not. But if it 

were, Hansen should consider himself lucky. It is not difficult to imagine Mr. Bock, 

being told that the cleanup of a 3.6 ton tree limb is dependent upon his own 

resourcefulness and hard work, standing on his roof with a chainsaw in order to clean up 

the mess, and accidentally falling, sustaining serious injuries—injuries that might not be 
14

recoverable in an action on the policy or the bad faith claim. (See Richards v. Sequoia 

Ins. Co. (2011) 195 Cal.App.4th 431, 438 [to prevail in tort action for breach of covenant 

of good faith and fair dealing, insured must show proof of economic loss; action is one 

seeking recovery of property right, not for personal injury].) 

In any event, the fact is that the Bocks have alleged that Mrs. Bock sustained a cut 

on her hand as a result of cleaning up the glass and debris as instructed by Hansen. This 

is actionable. (See Rest.2d Torts, § 311: one “who negligently gives false information to 

another is subject to liability for physical harm caused by action taken by the other in 

reasonable reliance upon such information.”)

Hansen also argues that he cannot be liable as an agent because he was acting in 

the course and scope of his employment. The complete answer is found in the terse 

statement of the rule in Witkin: “An agent or employee is always liable for his or her 

own torts, whether the principal is liable or not, and in spite of the fact that the agent acts 

in accordance with the principal’s directions. [Citations.] [¶] Similarly, an agent who 

commits an independent tort, such as fraud, remains liable despite the fact that the 

principal, by ratification, also becomes liable.” (3 Witkin, Summary of Cal. Law, supra, 

Agency & Employment, § 199, p. 252.)

Hansen cites three federal cases, two published, one not, which he cites for the 

proposition that insurance adjusters can never be liable for negligent misrepresentation 

claims if the false statement was made in the course of the adjuster’s employment: 

Good v. Prudential Ins. Co. of America (N.D. Cal. 1998) 5 F.Supp.2d 804; Icasiano v. 

Allstate Ins. Co. (N.D. Cal. 2000) 103 F.Supp.2d 1187, 1190; and Moreno v. Allstate Ins. 

Co. (C.D. Cal. Sep. 10, 2002, Civ. No. S02-1426) 2002 WL 31133203. We find Good

distinguishable and Icasiano and Moreno unpersuasive. Good involved an insurance 

agent who made representations about the benefits of an increased variable life insurance 

policy, not an adjuster. As to Icasiano, the entire “analysis” of the issue was this: “An 

agent of an insurance company is generally immune from suits brought by claimants for 

actions taken while the agent was acting within the scope of its agency. (See Lippert v. 

Bailey (1966) 241 Cal.App.2d 376, 382; Gasnik v. State Farm Ins. Co. (E.D. Cal. 1992)
15

825 F.Supp. 245, 249; Good, supra, 5 F.Supp.2d at p. 807.) In such cases, the cause of 

action lies against the insurance company and not its agent. (See Lippert, supra, 

241 Cal.App.2d at pp. 383–384.)” (Icasiano, supra, 103 F.Supp.2d at p. 1189–1190.) 

And Moreno did nothing more than follow Icasiano. 

In sum, we hold that a cause of action for negligent misrepresentation can lie 

against an insurance adjuster. We also hold that one was adequately alleged here.

“The elements of negligent misrepresentation are (1) a misrepresentation of a past 

or existing material fact, (2) made without reasonable ground for believing it to be true, 

(3) made with the intent to induce another’s reliance on the fact misrepresented, 

(4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Ragland v. 

U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196; CACI 1903.) The Bocks 

adequately alleged such claim here, that: Hansen falsely told the Bocks that their policy 

did not cover the cost of clean up; Hansen either knew the representation was false when 

he made it, or he made it with reckless disregard of their truth; and the Bocks relied on 

Hansen’s false statements to their detriment. 

Hansen makes two other arguments, essentially fact-based, as to why the Bocks 

cannot state a claim for negligent misrepresentation. Neither has merit. The first asserts

that the Bocks did not justifiably rely on Hansen’s misrepresentation. In Hansen’s words: 

“[The Bocks’] reliance was unjustified as a matter of law. An insured cannot justifiably 

rely on an adjuster’s representations about coverage when they contradict the express 

terms of the policy”; and, he goes on, “[h]ad [the Bocks] read the policy . . . they would 

have seen that Hansen’s alleged statements clearly were incorrect.” We are nonplussed: 

not only does Hansen acknowledge his “clearly” erroneous statement to the Bocks, but he 

then faults them for believing him. In any event, the argument has no merit. 

Over 100 years ago our Supreme Court observed that “ ‘It is a matter almost of 

common knowledge that a very small percentage of policy-holders are actually cognizant 

of the provisions of their policies . . . . The policies are prepared by the experts of the 

companies, they are highly technical in their phraseology, they are complicated and 

voluminous . . . and in their numerous conditions and stipulations furnishing what 
16

sometimes may be veritable traps for the unwary. . . . [¶] The courts, while zealous to 

uphold legal contracts, should not sacrifice the spirit to the letter nor should they be slow 

to aid the confiding and innocent.” (Raulet v. Northwestern etc. Ins. Co. (1910) 157 Cal. 

213, 230.) As the court put it in Clement v. Smith (1993) 16 Cal.App.4th 39, 49, albeit in 

the setting of a claim against an originating insurance agent, “When dealing with a 

contract as adhesive as the typical insurance policy, we are unwilling to impose on the 

insured so onerous a burden as would automatically defeat any agent’s liability for 

misrepresentation. Certainly an insured cannot remain intentionally ignorant of the terms 

of his or her policy. . . . Absent some notice or warning, an insured should be able to rely 

on an agent’s representations of coverage without independently verifying the accuracy 

of those representations by examining the relevant policy provisions.” (Accord, Eddy v. 

Sharp, supra, 199 Cal.App.3d at p. 864 [“ ‘ “[it] is a matter almost of common 

knowledge that a very small percentage of policy-holders are actually cognizant of the 

provisions of their policies . . . .” ’ ”].)

Hansen’s other fact-based argument asserts that the Bocks did not rely, and did not

“sustain any damage as a result of the representation,” as they had notice when they 

received their first estimate, which included a minimal amount for debris cleanup, that 

the policy provided coverage. This argument ignores the fact that the Bocks immediately 

relied upon Hansen’s statement before an estimate was ever received, the allegation being

that the Bocks began cleaning up the debris while Hansen was still present. Moreover, 

the fact that Travelers paid some of the cleanup costs does not mean that the Bocks did 

not sustain any damages. Indeed, they expressly alleged that they submitted an estimate 

of $2,065 for removal of the limbs, and that Travelers paid only a fraction of the total 

cost. And, of course, the Bocks’ own time and effort in the clean up has value.

The negligent misrepresentation claim against Hansen may proceed.
17

Intentional Infliction of Emotional Distress Can Lie Against an Insurance 

Adjuster, But Such Claim Was Not Adequately Pleaded Here

As quoted above, the trial court held that the Bocks “presented no convincing 

argument for allowing these claims to stand against defendant Hansen in what is a 

contract based action,” apparently holding that such claim failed as a matter of law. 

Hansen does not make such argument here, understandably, as the law is otherwise. 

(See, for example, Hailey v California Physicians’ Service (2007) 158 Cal.App.4th 452, 

473-476; Hernandez v. General Adjustment Bureau (1988) 199 Cal.App.3d 999, 1007; 

Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 385, 408 [claims 

supervisor].) Rather, Hansen’s position is that the Bocks did not allege, and cannot 

amend their complaint to allege, the requisite outrageous conduct. We agree with 

Hansen’s first statement. But find the second statement premature.

The law was confirmed in Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051

(Pair), where, affirming a summary judgment for defendants, the Supreme Court 

observed as follows:

“A cause of action for intentional infliction of emotional distress exists when there 

is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of 

causing, or reckless disregard of the probability of causing, emotional distress; (2) the 

plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate 

causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ A 

defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of 

that usually tolerated in a civilized community.’ ” ’ And the defendant’s conduct must be 

‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ 

[Citation.]

“Liability for intentional infliction of emotional distress ‘ “does not extend to mere 

insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” 

[Citation.]’ [Citations.]

“With respect to the requirement that a plaintiff show severe emotional distress, 

this court has set a high bar. ‘Severe emotional distress means “ ‘emotional distress of 
18

such substantial quality or enduring quality that no reasonable [person] in civilized 

society should be expected to endure it.’ ” ’ ” (To the same effect, see Schlauch v. 

Hartford Acc. & Indem. Co. (1983) 146 Cal.App.3d 926, 936 [conduct must be “ ‘ “so 

extreme as to exceed all bounds of that usually tolerated in a civilized community” ’ ”];

and CACI 1602 [conduct must go beyond mere insults, indignities, threats, hurt feelings 

or bad manners that a reasonable person is expected to endure].)

The Bocks assert there are numerous ways outrageous conduct may be 

demonstrated, including, for example, “ ‘ “if a defendant (1) abuses a relation or position 

which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is 

susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably 

with the recognition that the acts are likely to result in illness through mental 

distress.” ’[Citations.]” (Hailey v. California Physicians’ Service, supra, 

158 Cal.App.4th 454 at p. 474.) We generally agree. But whether such a claim measures 

up is the question. And referring to this, Croskey notes that “[w]hether particular conduct 

is ‘outrageous’ can best be determined in light of holdings in earlier cases dealing with 

particular types of conduct. (Soto v. Royal Globe Ins. Co. (1986) 184 Cal.App.3d 420, 

430.)” (Croskey, supra, § 11:69, p. 11-22.) 

Seemingly recognizing this, the Bocks contend their allegations “are similar to the 

allegations that were made in Younan[, supra,] 111 Cal.App.3d 498, and Little v. 

Stuyvesant Life Ins. Co. [(1977)] 67 Cal.App.3d 451.” 

In Younan, supra, 111 Cal.App.3d 498, the Court of Appeal held that the insured

sufficiently pled outrageous conduct where he alleged that his disability insurer required 

him to take a medical examination, but instead of sending him to a medical doctor, sent 

him to several psychological clinicians, one of whom omitted the results of certain tests 

in his report. (Id. at pp. 503–505.) After receiving the false report, the insurer denied the 

insured’s claim for disability benefits (id. at p. 506), which denial occurred at a time 

when he was unable to earn a living to support himself and his family. (Id. at p. 504.) 

In Little, supra, 67 Cal.App.3d 451, 461–462—which was not a pleading case but 

followed a jury verdict for the insured—the Court of Appeal found outrageous conduct 
19

when the defendant disability insurer “purposely ignored the great bulk of the medical 

information it had and withheld that information . . . to justify its predetermined course of 

discontinuing disability benefit payments justly due” under the insured’s policy. 

Specifically, the disability insurer terminated benefits after ignoring “overwhelming” 

evidence that the insured was totally disabled. (Id. at p. 457.) The insurer then withheld 

from its evaluating physician information about the insured’s job duties and reports from 

other physicians in order to elicit a pro-insurer opinion from the evaluating physician. 

(Id. at pp. 459-460.) As a result of the termination of benefits, the insured was forced to 

sell her home and subsequently attempted suicide by ingesting an entire bottle of Valium. 

(Id. at p. 460.) 

Relying on these cases, the Bocks argue that their pleading was sufficient. In their 

words, “Similar to the factual situation in Little and Younan, the Bocks alleged that 

Hansen ignored the overwhelming evidence that supported coverage; altered the scene of 

the accident in order to later deny the claim; created a false claim report stating that the 

Bocks had confirmed no damage to their floor and fence even though the Bocks never 

made those statements . . . ; conspired with an unlicensed contractor to create a 

knowingly false report that was used to wrongly deny the Bocks’ claim for damage to 

their chimney; and that Hansen knew the chimney was the Bocks’ primary source of heat 

and that winter was approaching. [Citation.] [¶] The FAC also alleged that when the 

Bocks submitted documentation, including and [sic] expert report and photographs, 

directly refuting the stated grounds for the denial, Hansen refused to even acknowledge, 

let consider [sic] the information. [Citation.] [¶] The Bocks also alleged that Hansen 

made rude and disparaging remarks to them as part of his outrageous course of conduct. 

[Citation.] Insults, indignities, and threats are also part on [sic] an outrageous course of 

conduct that will subject a defendant to liability. [Citation.]”

We are not persuaded. The setting here is a far cry from those in Youman or Little, 

where the insureds were particularly susceptible to distress, the insured in Younan unable 

to provide for his family, the insured in Little forced to sell her house. The Bocks were 

not disabled and were not facing a denial of benefits necessary to pay for their daily 
20

living expenses. While the Bocks allege that Hansen knew they were vulnerable because 

the chimney was their primary source of heating, they do not allege Hasen knew they 

would have to go without heat for the winter, did not have the resources to otherwise 

repair the chimney, or would be unable to use an alternative heating source—nor that any 

of these events actually occurred. 

As noted, Pair was a summary judgment case citing other summary judgment 

cases. The Bocks contend that whether conduct is outrageous is “usually a question of 

fact,” citing Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 

1004, 1045 and Ragland v. U.S. Bank National Assn., supra, 209 Cal.App.4th 182, 204. 

While both cases say what the Bocks represent, many cases have dismissed intentional 

infliction of emotional distress cases on demurrer, concluding that the facts alleged do not 

amount to outrageous conduct as a matter of law. (See, for example, Mintz v. Blue Cross 

of California (2009) 172 Cal.App.4th 1594, 1608–1609; Coleman v. Republic Indemnity 

Ins. Co. (2005) 132 Cal.App.4th 403, 416–417; Ricard v. Pacific Indemnity (1982) 

132 Cal.App.3d 886, 895.) This case may be another. But it is too early to tell. 

As noted, the Bocks requested leave to amend below, which the trial court denied

without explanation, indeed, probably without reflection, given the basis of its ruling. 

We review that denial for abuse of discretion. “While the decision to sustain or overrule 

a demurrer is a legal ruling subject to de novo review on appeal, the granting of leave to 

amend involves an exercise of the trial court’s discretion. [Citations.] When the trial 

court sustains a demurrer without leave to amend, we must also consider whether the 

complaint might state a cause of action if a defect could reasonably be cured by 

amendment. If the defect can be cured, then the judgment of dismissal must be reversed 

to allow the plaintiff an opportunity to do so. The plaintiff bears the burden of 

demonstrating a reasonable possibility to cure any defect by amendment.” (Traders 

Sports, Inc., supra, 93 Cal.App.4th at p. 43.)

The Bocks contend that they can allege additional facts to support their claim that 

Hansen acted outrageously. According to them, these facts include that “Hansen 

deliberately withheld information from Vertex and Roy Anderson in order to ensure that 
21

the Vertex report would support Hansen’s pre-determined decision to deny the Bocks’ 

claim”; that Hansen sent Anderson his own conclusions as to why the chimney damage 

was not caused by the tree limbs before Anderson wrote his report; that Hansen 

subsequently edited Anderson’s report before it was finalized; and that Hansen’s 

supervisor took notes that acknowledged damage to the Bocks’ home, which were never 

put into the claim file and have since been destroyed.” The Bocks also claim that they 

could state facts that show Hansen abused a relationship of power over them and that he 

knew they were susceptible to injuries through mental distress, although they failed to

actually name those facts. In light of the Bock’s contention, and the fact that the trial 

court did not even address their request, we reverse, to allow the Bocks to amend their 

claim.

DISPOSITION

The judgment for Hansen is reversed, and the matter remanded for further 

proceedings consistent with this opinion. The Bocks shall recover their costs on appeal.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.
22

Trial Court: Napa County Superior Court

Trial Judge: Honorable Diane M. Price

Attorney for Plaintiffs and Appellants: GCA Law Partners, Kathryn C. Curry, 

Kenneth R. Van Vleck

Attorneys for Defendant and Respondent: Horvits & Levy, Peder K. Batalden, Julie 

L. Woods; Weston & McElvain, Randy M. 

McElvain