Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC353258 Elizabeth A. Grimes, Judge.
Stuart Law Firm, Antony Stuart; Kiesel Boucher & Larson, Glenn Anaiscourt; the Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Andre J. Cronthall, Fred R. Puglisi and Catherine La Tempa for Defendant and Respondent The MEGA Life and Health Insurance Company.
Law Offices of Jeffrey H. Ochrach and Jeffrey H. Ochrach for Defendant and Respondent Lisa Bauer.
Pfeiffer, Thigpen, Fitzgibbon & Ziontz, Jon Pfeiffer and Kimberly L. Thigpen for Defendant and Respondent The National Association for the Self-Employed.
KRIEGLER, J.
In this action for damages for fraud in the sale of health insurance, plaintiff and appellant Jerry T. Hopkins appeals from a judgment following the granting of a motion for summary judgment in favor of defendants and respondents The MEGA Life and Health Insurance Company (MEGA), the National Association for the Self-Employed (NASE), and Lisa Bauer (Bauer). Hopkins contends triable issues of fact exist that: Hopkins sustained recoverable damages; defendants made misrepresentations to Hopkins, which Hopkins reasonably relied on and caused him harm; and defendants’ conduct was outrageous. Finding no merit to the contentions, we affirm the judgment.
In a prior appeal by Hopkins in this matter, we affirmed the trial court’s order and judgment sustaining the demurrer of defendants and respondents Phil Quinn, Quinn Division, David Mack, and Mack Region to the First Amended Complaint and entering judgment dismissing the First Amended Complaint with prejudice. (Hopkins v. Mack (Sept. 29, 2008, B203608) nonpub. opn.)
FACTS AND PROCEDURAL BACKGROUND
First Amended Complaint
Hopkins and his wife Linda filed a first amended complaint (FAC) for damages against MEGA, NASE, Bauer, and others alleging breach of fiduciary duty (against NASE), negligent failure to obtain insurance coverage (against Bauer), intentional misrepresentation (against defendants), fraud by concealment (against defendants), promissory fraud (against defendants), negligent misrepresentation (against defendants), professional negligence (against Bauer), negligence (against MEGA and NASE), and intentional infliction of emotional distress (against defendants).
Linda Hopkins died during the pendency of the action. Hopkins alleged he succeeded to her causes of action.
A. General Allegations
In early November 2004, Hopkins heard a radio advertisement by NASE offering the self-employed access to affordable health insurance. When the Hopkinses responded to the advertisement, MEGA and NASE arranged for Bauer to deliver a sales presentation to them on November 5, 2004. During her presentation, Bauer made affirmative misrepresentations and omissions. She falsely stated that NASE sought the best affordable insurance, provided significant savings through group buying power, and was able to negotiate benefits akin to the benefits enjoyed by employees of large corporations. She did not disclose that she was MEGA’s insurance agent, NASE offered only MEGA insurance, and MEGA insurance provided very little coverage in the event of a serious medical problem.
Hopkins told Bauer he wanted 80/20 coverage after paying the deductible, the same coverage he had always had through his work, to protect him from losing his house in the event of a serious medical condition requiring hospitalization. Bauer falsely represented NASE had a policy that satisfied these requirements. She sold Hopkins a policy that provided very little coverage in the event of a serious medical problem. Bauer quoted the Hopkinses an initial premium of between $600 and $700 per month, which was an affirmative misrepresentation, because the premium was $1,136 per month. Bauer affirmatively misrepresented that she was a breast cancer survivor who was lucky she had good insurance.
The Hopkinses’ policy became effective on November 28, 2004. At her annual physical examination on November 29, 2004, Linda Hopkins was diagnosed with ovarian cancer. Surgery was scheduled to remove the tumors on December 17, 2004.
On December 13, 2004, the Hopkinses received their policy and discovered the initial premium was $1,136. It was too late for the Hopkinses to cancel the policy and obtain other insurance before the surgery took place. The policy paid no more than a small fraction of the total medical bills for the cancer treatment and left the Hopkinses personally responsible for unpaid medical bills in excess of $200,000.
B. Causes of Action
In the second cause of action for negligent failure to obtain insurance coverage, Hopkins alleged Bauer’s representations triggered a duty to ensure the Hopkinses had the coverage they thought they purchased, which Bauer breached.
Hopkins raises no appellate issue that triable issues exist concerning the first cause of action against NASE for breach of fiduciary duty.
In the third cause of action for intentional misrepresentations, Hopkins alleged that MEGA and NASE, through their agent Bauer, made material misrepresentations about the nature, scope, and extent of their health insurance coverage which Hopkins relied on in purchasing the policy.
In the fourth cause of action for fraud by concealment, Hopkins alleged that MEGA and NASE, through their agent Bauer, intentionally failed to disclose important facts.
The fifth cause of action for promissory fraud alleged that defendants made promises that were affirmative misrepresentations and which defendants had no intention of honoring.
The sixth cause of action for negligent misrepresentation alleged defendants misrepresented important facts, which defendants had no reasonable grounds to believe to be true and which were not true.
In the seventh cause of action for professional negligence, Hopkins alleged Bauer breached her duty to disclose the true facts about the policy.
In the eighth cause of action for negligence, Hopkins alleged that MEGA and NASE breached their duty to disclose the true facts about the policy.
In the ninth cause of action for intentional infliction of emotional distress, Hopkins alleged defendants knew that their conduct would cause severe emotional distress.
C. Insurance Policy Attached to the First Amended Complaint
Attached to the FAC was a copy of the medical insurance policy that Hopkins purchased. It had an effective date of November 28, 2004. The policy was enclosed with a cover letter dated November 30, 2004, which stated: “Please carefully review your coverage to ensure you understand all benefits available to you and your dependents (if applicable). Please be sure to review the attached copy of your original Enrollment Application for accuracy. We want your coverage to be properly issued. If you find any discrepancies, please contact us immediately.” The letter advised that an additional premium was being charged, bringing the total premium to $1,136.50 per month. The Basic Hospital-Surgical Expense Certificate provided: “10[-]DAY RIGHT TO EXAMINE THE CERTIFICATE [¶]... If You are not satisfied that this coverage will meet Your insurance needs, You may return this Certificate to Us at Our administrative office... within 10 days after You receive it. Upon receipt, We will cancel Your coverage as of the Certificate Date, refund all premiums paid and treat the Certificate as if it were never issued. [¶]... PLEASE READ YOUR CERTIFICATE CAREFULLY!”
Among the benefits included in the Certificate Schedule were: a $3,000 deductible; hospital room and board coinsurance 100 percent up to a maximum benefit of $600 per day; miscellaneous hospital inpatient charges coinsurance 80 percent up to $20,000 maximum benefit; physician visits while hospital confined (limited to one visit per day) coinsurance 100 percent up to a maximum benefit of $50 per day; surgeon benefit when hospital confined coinsurance 80 percent up to $10,000; surgeon benefit in outpatient surgery facility coinsurance 80 percent up to $6,000; assistant surgeon benefit maximum benefit 20 percent of the amount paid to surgeon; anesthesiologist benefit maximum benefit 30 percent of the amount paid to surgeon; and outpatient surgery facility charges coinsurance 80 percent up to $12,000. “Maximum benefit” was defined as “the maximum amount payable under this Certificate for each insured Person for each Period of Confinement.” “Covered Expenses mean [the charges for services] which are incurred by an Insured Person... for which the Insured Person is legally obligated to pay.”
The section on “BENEFITS” states: “Unless otherwise stated herein, all Covered Expenses are subject to: [¶]... [¶] 2. The Deductible shown in the CERTIFICATE SCHEDULE; [¶] 3. The Coinsurance shown in the CERTIFICATE SCHEDULE; [¶] 4. The Maximum Benefit shown in the CERTIFICATE SCHEDULE; [¶] 5. The EXCLUSIONS AND LIMITATIONS[.]”
D. Application Documents Attached to the Policy
Attached to the policy is a “California Health Choice Advantage Worksheet” (worksheet), which Hopkins and Bauer each signed on November 5, 2004. It indicates Hopkins chose Basic Hospital Surgical Benefits with a $3,000 deductible, room and board 100 percent up to $600 a day, inpatient/outpatient surgeon 80 percent coinsurance up to $10,000 for Inpatient and $6,000 for Outpatient, and miscellaneous Inpatient/Outpatient Surgery Facility 80 percent coinsurance up to Inpatient $20,000 and Outpatient $12,000. The additional benefits chosen were Accumulated Covered Expense Benefit—$100,000 and Chemo and Radiation Therapy Benefit. These choices were also marked on another document which Hopkins signed on November 5, 2004.
On November 5, 2004, Hopkins signed a document stating “[h]e received a copy of the Disclosures Regarding [MEGA] and [NASE] Regarding Association Group Insurance” (disclosures), carefully read it, and understood the information it contained. The disclosures revealed the following relationships between MEGA and NASE. Under an agreement between MEGA and NASE for NASE to offer its members MEGA medical insurance products, NASE is the master policyholder. The salesperson for NASE membership and MEGA insurance products “serves both as a licensed insurance agent of MEGA and as a Field Service Representative for new Members for the NASE[.]” When talking about MEGA products, the salesperson acts on behalf of MEGA and not NASE, and, when talking about NASE benefits, the salesperson acts on behalf of NASE and not MEGA. Under the heading “About Association Group Health Insurance,” the disclosures state that NASE offers its members “health insurance coverage provided through MEGA.”
NASE joined in Bauer’s motion, and Bauer and NASE joined in MEGA’s motion.
Bauer filed a motion for summary judgment on the following grounds: as to all causes of action, Bauer’s conduct did not cause the alleged harm and Hopkins suffered no cognizable damages; as to the fraud and misrepresentation causes of action, Hopkins did not justifiably rely on Bauer’s representations and Bauer made no misrepresentations; as to the negligence causes of action, Bauer breached no duty of care and Bauer was a disclosed agent; and the cause of action for intentional infliction of emotional distress will not lie because there was no physical harm.
MEGA moved for summary judgment on the ground no triable issues of material fact exist concerning damages, causation, justifiable reliance, misrepresentations, or breach of duty of care.
NASE contended Bauer’s representations regarding coverage under the MEGA policy were not made on NASE’s behalf, and, thus, NASE cannot be liable for intentional or negligent misrepresentation. Regarding the causes of action for fraud by concealment and negligence, NASE had no duty to Hopkins to disclose information concerning coverage and NASE’s business relationship with MEGA was disclosed. There is no triable issue of reliance, duty, or damages. As to the cause of action for intentional infliction of emotional distress, fraudulent misrepresentation cannot support a cause of action for intentional infliction of emotional distress and there are no facts showing NASE made misrepresentations to the Hopkinses.
Hopkins’s Opposition to the Motions for Summary Judgment
Hopkins contended he suffered compensable economic and emotional distress damages, Bauer made misrepresentations and omissions which he justifiably relied on, there are triable issues of intentional infliction of emotional distress, and NASE can be held liable for Bauer’s misrepresentations.
Undisputed Facts
The undisputed evidence submitted in conjunction with the summary judgment pleadings reveals the following facts.
When Hopkins’s employer terminated its group health insurance, Hopkins obtained insurance through COBRA that had an expiration date of November 30, 2004.
In late October 2004, Hopkins contacted NASE to talk to a representative after hearing an advertisement by NASE about health insurance on the Bill O’Reilly show. Bauer met with the Hopkinses in their home on November 5, 2004. The business card she gave them indicated it was a NASE business card and that Bauer was a licensed insurance agent for MEGA and an Association Enroller for NASE. She also gave Hopkins “Disclosures Regarding the [MEGA] and [NASE] Business Relationship,” which Hopkins signed.
When Bauer began to make her presentation, Hopkins stopped her and told her he wanted the same coverage he always had, that is, “insurance that they pay 80 [percent]. I pay 20 [percent] after a deductible.” Bauer replied, “Oh, we have that.” The meeting with Bauer lasted three to five hours, but Hopkins participated only in about one and a half hours of the meeting. Bauer estimated the premium would be approximately $600 to $700.
Bauer filled out the worksheet and the insurance application while she questioned the Hopkinses. Hopkins signed the worksheet, which indicated the deductible, coinsurance, benefit maximums, and riders without looking at it. “My thoughts were[,] when I got the policy, I’ll look it over, and if I didn’t like it, then I’ll shop around.” He knew he would not have to keep the policy if, when MEGA issued the certificate of insurance, he decided he did not want it.
MEGA was the only insurance company Hopkins applied to for coverage at this time.
After a physical exam by her doctor on November 29, 2004, Linda Hopkins was diagnosed with ovarian cancer, requiring immediate surgery. Hopkins believed they would not have insurance coverage for the cancer treatments Linda Hopkins was facing and he would have to pay out of his own pocket, because they had not heard yet from MEGA.
Hopkins received the policy on December 14 or 15, 2004, along with notice that the initial premium was $1,136.50. The policy’s effective date was November 28, 2004. The policy was prefaced with a letter stating Hopkins had a 10-day right to examine the policy and decide whether to cancel the coverage for a full refund. Hopkins knew he had a right to cancel the policy and obtain a full refund. Hopkins immediately looked over the insurance documents and, “when I saw that the premium for the policy was $1,136 a month instead of the $600 to $700 that [Bauer] had promised us, I was disgusted. If my wife had still been healthy at that time, I would have returned the policy for a refund and looked for coverage from another company. However, it would have been irresponsible for me to return the policy when my wife was about to undergo expensive surgery and cancer treatment.” “I did not believe then... that I would have been able to find another health insurer willing to provide health insurance to a cancer patient.” On December 16, 2004, Hopkins submitted a written request to NASE to cancel his NASE membership.
Linda Hopkins had surgery at Cedars-Sinai Hospital on December 17, 2004.
On or about December 22, 2004, someone from the hospital told Hopkins that MEGA would not be paying 80 percent after the deductible. Hopkins immediately called MEGA and learned he did not have the 80/20 coverage he believed he had. Hopkins became angry, but he accepted the policy and did not try to find a different insurer, because he believed his wife’s cancer would prevent him from getting a different policy. He reviewed the policy some time after his wife’s December 24, 2004 release from the hospital, probably on December 26.
Hopkins cancelled the MEGA policy a year later on December 28, 2005. He obtained medical insurance from Blue Shield as of January 1, 2006, through his membership in CAR.
Hopkins submitted $246,097.94 in claims to MEGA for medical expenses incurred by his wife during the effective period of the policy—November 28, 2004, through December 28, 2005. On July 13, 2005, Cedars-Sinai “approved a Charity Care adjustment equal to 100 [percent] of [his wife’s] account on 6/22/05. Charity expires on 12/22/05.” MEGA negotiated with Cedars-Sinai a full release of all claims submitted on behalf of his wife. Cedars-Sinai’s release of lien, signed on May 3, 2006, provides that, in consideration of a $15,000 payment to Cedars-Sinai, Cedars-Sinai released MEGA and Hopkins from any obligations regarding Linda Hopkins’s treatment by Cedars-Sinai from December 1, 2004, through September 2, 2005. On July 1, 2007, MEGA paid $27,748.28 to Cedars-Sinai and other providers to settle $81,306.46 in billed invoices.
Hopkins “[has] no outstanding medical bills relating to medical expenses incurred during the November 28, 2004 through December 2005 period during which the Hopkinses were covered by the MEGA policy.”
Decision of the Trial Court
On July 10, 2008, the trial court granted the motions for summary judgment. The trial court found there were no material disputed facts as to the negligence and fraud based causes of action against Bauer. “With respect to Ms. Bauer’s statements about the premium and coverage, there is no material dispute that [Hopkins] did not reasonably rely on the alleged statements or omissions... and none caused [Hopkins] to suffer compensable damages.” In his deposition, Hopkins testified that he intended to go over the policy when his application was accepted and, if he did not like it, he would get other insurance.
“By his own admissions,... Hopkins did not purchase the MEGA policy in reliance on Bauer’s promises about the premium cost.” Hopkins kept the policy because he believed he could not find insurance coverage elsewhere once his wife had been diagnosed with cancer, but no one told him he could not obtain other coverage and thus did not look for other coverage.
There is no disputed issue of material fact that Hopkins relied on Bauer’s statement that the policy was an 80/20 policy, because the policy unambiguously set forth that it paid 80 to 100 percent subject to clearly stated maximum benefit amounts for each benefit option.
“The only reasonable conclusion to be drawn from the evidence before the court—primarily the testimony of... Hopkins—is that plaintiffs decided to buy the MEGA policy, even though they thought the premium was exorbitant and the policy did not offer unlimited coverage of 80 [percent] of the hospital expenses, because they waited until their COBRA policy almost expired before they looked for a new insurance policy, [Linda] Hopkins was diagnosed with cancer immediately before the COBRA policy expired, and... Hopkins decided not to shop for another policy until several months later. The extremely unfortunate circumstance of [Linda] Hopkins’s unanticipated disease, diagnosed only days before the COBRA policy expired, does not sustain a cause of action against Bauer in the absence of any disputed evidence that plaintiffs reasonably relied on her sales presentation and in the absence of any disputed evidence that she caused plaintiff to suffer damages.”
Moreover, defendants “have offered undisputed evidence that MEGA paid or otherwise settled all claims submitted to MEGA related to medical treatment for plaintiffs in the amount of $246,097.00.... Whether the hospital wrote off amounts because it agreed to treat [Linda] Hopkins as a charity patient or because MEGA negotiated the write-off is immaterial. Plaintiffs offer no evidence that they had to pay for any medical costs that they expected the MEGA policy to cover at the time they applied to Ms. Bauer for insurance. Ms. Bauer correctly points out that plaintiffs’ counsel’s recent approach to the hospital to negotiate a lien agreement for the repayment out of the proceeds of this lawsuit amounts which the hospital has written off does not create a triable issue that no medical services provider has looked to plaintiffs for payment of sums they expected insurance to pay.”
The trial court sustained objections to Hopkins’s attorney’s declaration that he was negotiating a lien with Cedars-Sinai so that the hospital can be reimbursed for its charity write-off. MEGA presented evidence that Cedars-Sinai testified in a deposition in another case that “when a patient receives a charity waiver from Cedars-Sinai, that person has no obligation to repay that money.”
“As for plaintiffs’ cause of action for intentional infliction of emotional distress, it rests on the same facts as the fraud and negligence causes of action. Emotional distress damages are not recoverable for fraud or for negligence which causes only economic loss, with exceptions not applicable to plaintiffs’ case against Ms. Bauer. There is no triable dispute that any of Ms. Bauer’s conduct was outrageous, a necessary element of an IIED cause of action.”
Summary judgment was granted to MEGA for many of the reasons discussed in connection with summary judgment for Bauer. The trial court rejected Hopkins’s effort to create a dispute as to damages by stating as a material fact he paid thousands of dollars toward his wife’s medical care using a credit card. Hopkins’s deposition testimony that he believed he paid amounts that he could neither remember nor estimate, and his failure to support the testimony by any credit card receipts or other evidence, did not create a triable issue whether Hopkins suffered damages in the form of paying for his wife’s medical care out of his own pocket.
Concerning the cause of action for intentional infliction of emotional distress, “there is no triable dispute that any of MEGA’s conduct was outrageous. MEGA also demonstrated there is no material dispute that... Hopkins suffered emotional distress because of his wife’s declining health, rather than due to any distress over insurance matters.”
The trial court granted summary judgment to NASE for many of the same reasons. “Plaintiffs do not dispute they received several disclosure documents regarding the business relationships among the defendants. Plaintiffs have presented no evidence that the disclosures they were given had false information. There is no factual dispute that NASE did anything to conceal or conspire to hide facts regarding its business relationships with MEGA and SAS from plaintiffs. In any event, there is no material dispute that NASE owed any duty to disclose to plaintiffs any [of] the allegedly omitted information or that NASE owed any fiduciary duty to plaintiffs.”
DISCUSSION
Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) “[W]e ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”’ [Citations.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Negligence Causes of Action: There is No Triable Issue of Causation
There is no triable issue of causation for the negligence causes of action. Hopkins contends there is a triable issue that, but for the misrepresentations, he would not have applied for the MEGA insurance and he would have obtained the coverage he desired from a different insurance company before his wife was diagnosed with cancer. We disagree with Hopkins’s contention.
The negligence causes of action are negligent failure to obtain insurance coverage (against Bauer), negligent misrepresentation (against defendants), professional negligence (against Bauer), and negligence (against MEGA and NASE).
For an insured to recover from his insurance agent for negligently obtaining insufficient coverage, the agent’s “conduct must have been a legal (proximate) cause of the injury. The foundational element of legal cause is cause in fact. It is necessary to show that the conduct contributed in some way to the injury (here the lack of coverage [resulting in economic loss]), so that ‘but for’ the conduct the injury would not have occurred [citations]. If the act or omission was a substantial factor in bringing about the result, it will be regarded as a legal cause of the injury.” (Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803, 810-811.)
There is no evidence tending to show that Hopkins would have and could have obtained the desired coverage from another company before Mrs. Hopkins was diagnosed with cancer. (Compare Greenfield v. Insurance Inc., supra, 19 Cal.App.3d at p. 811 [the plaintiff’s evidence that, within a few days of learning he was not covered, he found an insurance company that would write the coverage he thought he was getting made it reasonable to infer that, but for the defendant’s negligent misrepresentation, he would have obtained the coverage elsewhere].) Hopkins identified no companies that would have provided the coverage he was looking for at a premium he would have found acceptable during the time frame in question.
Further, while the alleged misrepresentations may have been a factor in his decision to apply for the policy, the misrepresentations did not cause him to purchase the policy. It is undisputed that Hopkins knowingly chose to purchase the policy after learning the coverage and premiums had been misrepresented. It is undisputed that his reason for going ahead with the purchase was he assumed he would not be able to obtain a better policy from another company. No facts in the record support an inference that this assumption was reasonable. The misrepresentations did not cause him to purchase inadequate coverage. Any coverage inadequacy occurred in spite of the misrepresentations.
Fraud Causes of Action: There is No Triable Issue of Reliance
There is no triable issue of reliance for the fraud causes of action. Hopkins contends he justifiably relied on Bauer’s misrepresentations concerning coverage and concerning NASE’s obtaining the best coverage available to refrain from purchasing coverage elsewhere. We disagree.
The fraud-related causes of action are intentional misrepresentation (against defendants), fraud by concealment (against defendants), and promissory fraud (against defendants).
“The elements of fraud, which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.... [Citation.] [¶]... [¶] [A plaintiff must show] that she actually relied on the alleged misrepresentations, which is an essential element of... deceit. [Citation.] ‘Actual reliance occurs when a misrepresentation is “‘an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,’” and when, absent such representation, “‘he would not, in all reasonable probability, have entered into the contract or other transaction.’” [Citations.] “It is not... necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct.... It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.”’ [Citation.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255-1256.)
The evidence is undisputed that Hopkins did not actually rely on Bauer’s alleged misrepresentations in purchasing the policy. As discussed above, Hopkins reviewed the policy when it arrived, was aware of the coverage, and with knowledge of the misrepresentations, decided not to cancel the insurance within ten days. His contention that he would have and could have obtained other insurance before Mrs. Hopkins was diagnosed with cancer is speculation, unsupported by any evidence in the record. Summary judgment must be granted on fraud causes of action when there is no triable issue of actual reliance on the fraudulent misrepresentation. (Conroy v. Regents of University of California, supra, 45 Cal.4th at pp. 1256-1258.)
Negligence and Fraud Causes of Action: There is no Triable Issue of Damages
Hopkins contends the record contains triable issues as to damages for medical expenses and emotional distress for the negligence and fraud based causes of action. Not so.
A. Medical Bills
There is undisputed evidence that all medical claims were paid, settled for cents on the dollar, or written off, and Hopkins had no outstanding medical bills. Although he testified at his deposition that he believed he paid other amounts beside an advance payment he made to the hospital in December 2004, he did not remember and could not estimate those other amounts, and he offered no evidence of payments he made. As to the advance payment, he did not show it was greater than the $3,000 deductible or that he expected reimbursement from MEGA at the time he paid it. Thus, all the medical bills were satisfied, and Hopkins presented no evidence that he paid or is required to pay any bills that he expected MEGA to cover at the time he applied for the insurance.
Hopkins contends that the collateral source rule excludes from evidence the amount of the hospital bill that Cedars-Sinai wrote off as a charity care adjustment, and that he can recover that amount in damages. Hopkins is mistaken. The collateral source rule does not apply.
MEGA contends we should not consider this argument on appeal because Hopkins did not raise it in his summary judgment motion pleadings below. Bauer contends the issue was not raised in the trial court at all. MEGA correctly points out that Hopkins brought up the collateral source rule for the first time at the argument on the summary judgment motion. At the argument, the trial court recognized it was a new issue and asked the defendants if they wanted to address it. Neither MEGA nor Bauer lodged an objection in the trial court or asked for a continuance to address the new issue. They chose not to demand an opportunity to develop the record on this issue. The trial court ruled the collateral source rule did not apply.
The collateral source rule “provides that if an injured party received some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729.) The rule typically applies to exclude evidence of medical insurance benefits, to prevent tortfeasors who caused physical injury to the plaintiff from taking a credit against the damages they caused. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 13-14.) “[T]he collateral source rule [applies] in tort cases in which the plaintiff has been compensated by an independent collateral source—such as insurance, pension, continued wages, or disability payments—for which he had actually or constructively... paid or in cases in which the collateral source would be recompensed from the tort recovery through subrogation, refund of benefits, or some other arrangement.” (Ibid.) “This rule embodies a judicially created policy, firmly embedded in California jurisprudence, encouraging prudent investment in insurance and ensuring that victims are made whole.” (Kardly v. State Farm Mut. Auto. Ins. Co. (“Kardly I”) (1989) 207 Cal.App.3d 479, 485.)
The rule bars offsets that favor tortfeasors who caused the plaintiff’s physical injury or property damage. (E.g., Hrnjak v. Graymar, Inc., supra, 4 Cal.3d at pp. 726-727-729 [personal injury action against the defendant whose truck crashed into the plaintiff]; Helfend v. Southern Cal. Rapid Transit Dist., supra, 2 Cal.3d at p. 4 [personal injury action against the defendant bus company whose bus crashed into the plaintiff]; Arambula v. Wells (1999) 72 Cal.App.4th 1006, 1008 [personal injury lawsuit against the driver who rear-ended the plaintiff].)
Here, in contrast, the alleged tortfeasor is an insurance company. Defendants’ alleged tortious conduct did not cause Linda Hopkins’s physical illness and the ensuing medical costs to treat it. The gravamen of the lawsuit is that defendants fraudulently induced Hopkins to purchase relatively worthless medical insurance that potentially exposed him to large, uncovered medical costs in the event of a major medical issue. The tortious conduct did not injure Hopkins unless it lead to uncovered bills that he was required to pay. As his wife’s treatment was fully paid for by MEGA and write-offs of medical bills, the alleged tortious conduct did not cause Hopkins any loss.
Kardly I¸ supra, 207 Cal.App.3d at pages 485-487, cited by Hopkins in his reply brief, is not on point. In Kardly I, the plaintiffs were injured in an automobile accident. Their automobile insurance company, State Farm, paid the medical bills but refused to pay the Kardlys’ claims for certain property losses and damages. In a personal injury lawsuit against the person who caused the accident, the Kardlys recovered damages for property losses and for the emotional distress they experienced as a result of the accident, but the recovery did not include damages for the emotional distress resulting from State Farm’s refusal to pay their claims. The Kardlys then sued State Farm based on assertions of bad faith denial of their claims under the insurance contract. (Id. at pp. 482-488.) The trial court granted summary adjudication to State Farm on the causes of action for infliction of emotional distress and nonsuit on the remaining causes of action. (Id. at p. 482.) The Court of Appeal reversed. (Id. at p. 489.) The court held that the Kardlys could introduce evidence of the emotional distress caused by State Farm but not of the emotional distress caused by the defendant in the personal injury case. (Id. at p. 485.) The court also held that State Farm was not a joint tortfeasor with the person who caused the accident, and, therefore, the joint tortfeasors exception to the collateral source rule did not apply. (Id. at pp. 485-487.) Further, the court was “unpersuaded that the collateral source rule did not apply to damages claimed against State Farm.” (Kardly v. State Farm Mut. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746, 1749 (Kardly II).)
The trial court held, inter alia: (1) the Kardlys’ suit was barred by the rule against double recovery because the Kardlys recovered their full damages in the personal injury suit; (2) State Farm was a joint tortfeasor, and, thus, the joint tortfeasor exception to the collateral source rule applied; and (3) the collateral source rules does not apply to mental distress damages. (Kardly I, supra, 207 Cal.App.3d at p. 483.)
To the extent that Kardly I indicated the collateral source rule applied to the property loss damages that the Kardlys recovered from the person who injured them, so that State Farm were not entitled to offset that recovery, the holding is inapplicable to the case before us. In Kardly I, it was impossible to determine how much of the verdict against the personal injury defendant was for property damages and loss, because the jury returned a general verdict that included emotional distress damages. (Kardly I, supra, 207 Cal.App.3d at p. 484.) Moreover, State Farm’s contract of insurance with the Kardlys insured the Kardlys against property damage and loss. In this case, MEGA did not insure the Hopkinses against personal injury, illness, and disease. It insured them against costs of medical care the Hopkinses were legally obligated to pay. Unlike State Farm in Kardly I, which was contractually obligated to pay the insured the value of damages to property, MEGA had no contractual obligation to pay the value of medical care without regard to write-downs and charitable waivers.
B. Emotional Distress Damages
Hopkins contends he can recover damages for emotional distress on his fraud-related claims. We disagree.
Hopkins does not argue he can recover damages for emotional distress on his negligence-related claims.
“Although damages for emotional distress can be recovered in a fraud cause of action, such damages have been allowed only as an aggravation of other damages. [Citations.]... [D]amages for emotional distress alone are not recoverable.” (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1269; accord, Williams v. Wraxall (1995) 33 Cal.App.4th 120, 134, fn. 12.)
None of the cases cited by Hopkins hold that emotional distress damages resulting from fraud are recoverable in the absence of economic harm. (See Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012; Allen v. Jones (1980) 104 Cal.App.3d 207; Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846.)
Thus, there is no triable issue of emotional distress damages on Hopkins’s fraud-related claims.
C. In the Absence of a Triable Issue of Damages, All of Hopkins’s Fraud and Negligence Related Causes of Action Fail
Each of the fraud and negligence causes of action, pled in the second through eighth causes of action, requires proof Hopkins suffered damages as a consequence of the negligent or fraudulent conduct. (See, e. g., Paz v. State of California (2000) 22 Cal.4th 550, 559 [“the well-known elements of any negligence action [are] duty, breach of duty, proximate cause, and damages”]; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 85-86 [“‘Fraud is an intentional tort, the elements of which are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. [Citation.]’ [Citation.]”].)
As discussed above, Hopkins failed to show the existence of a triable issue of damages for his negligence and fraud based causes of action. Thus, with regard to the second through eighth causes of action, summary judgment was proper.
Intentional Infliction of Emotional Distress [Ninth Cause of Action]
Hopkins contends he can recover emotional distress damages in his claim against defendants for intentional infliction of emotional distress. We disagree with the contention.
“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.”’”’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’”’ [Citation.] And the defendant’s conduct must be ‘“‘intended to inflict injury or engaged in with the realization that injury will result.’”’ [Citation.] [¶]... [¶] 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 such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’”’ [Citation.]” (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051.) “[C]ourts have rejected liability where... the insurer simply delayed or denied insurance benefits[.]” (Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 474.)
Hopkins did not raise a triable issue that “trick[ing] him into buying a policy that did not provide significant coverage, leaving him exposed to massive medical bills” was outrageous conduct exceeding all bounds tolerated in a civilized community. It is undisputed defendants did not know Linda Hopkins was going to be diagnosed with cancer before the Hopkinses received and reviewed the policy. (Compare Hailey v. California Physicians’ Service, supra, 158 Cal.App.4th at pp. 475-476 [insurer deliberately waited until the insured had suffered severe injuries, was disabled, and was incurring mounting medical bills before it used old information to rescind the insurance policy]; Hernandez v. General Adjustment Bureau (1988) 199 Cal.App.3d 999, 1002, 1007 [when he delayed claimant’s disability payments, the insurance adjuster knew claimant was in a fragile emotional condition and susceptible to profound mental distress and knew she was in dire need of timely payments because she was the sole support of three children]; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 392 [when the insurer embarked on a course of conduct designed to coerce claimant into surrendering his disability policy, the insurer knew claimant was disabled and in dire financial straits and acknowledged its conduct was “‘deplorable’” and “‘outrageous’”].)
Nor did Hopkins raise a triable issue that defendants’ conduct caused him to suffer severe distress. Hopkins presented the following evidence relating to his mental state. He thought his family doctor put him on Lexapro to relieve stress. His wife’s doctor’s decision to withdraw from the case in late November 2005 because of lack of insurance coverage was extremely stressful; and Hopkins had to spend 45 minutes comforting his wife when they learned the news. Hopkins sought psychiatric help after his wife died, as a result of stress for two and a half years of his wife having cancer: “when she finally passed away, it was just devastating.” He mentioned to his psychiatrist that MEGA “screwed me over, just very upsetting.” “[A] plaintiff’s assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation... do not comprise ‘“ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’”’ [Citation.]” (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) As a matter of law, Hopkins’s symptoms, to the extent they were caused by defendants’ conduct, do not comprise severe emotional distress.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to MEGA, NASE, and Bauer.
We concur: TURNER, P. J., ARMSTRONG, J.