( Id.) Underlying the implication is the court's citation of Key System Transit Lines v. Pacific Employers Ins. Co., 52 Cal.2d 800 [ 345 P.2d 257], and Contractor's etc. Assn. v. Cal. Comp. Ins. Co., 48 Cal.2d 71 [ 307 P.2d 626]. ( Id., at pp. 998-999.)
See also American Mut. Liability Ins. Co. v. Plywoods-Plastics Corp., 81 F. Supp. 157 (E.D.S.C. 1948); Contractor's Safety Assoc. v. California Comp. Ins. Co., 48 Cal.2d 71, 307 P.2d 626 (1957); Key System Transit Lines v. Pacific Employers Insurance Co., 52 Cal.2d 800, 345 P.2d 257 (1959); Great American Ins. Co. v. Nova-Frost, Inc., 362 N.W.2d 358 (Minn.App. 1985); Employer's Liability Assur. Corp. v. Arthur Morgan Trucking Co., 236 Mo.App. 445, 156 S.W.2d 8 (1941); Public Service Mutual Ins. Co. v. Rosebon Realty Corp., 39 Misc.2d 663, 241 N.Y.S.2d 555 (1963); Warm Springs Forest Products Ind. v. Employee Benefits Ins. Co., 74 Or. App. 422, 703 P.2d 1008 (1985); Mountain Fir Lbr. Co. v. Employee Benefits Ins. Co., 296 Or. 639, 679 P.2d 296 (1984); Glenn H. McCarthy, Inc. v. Knox, 186 S.W.2d 832 (Tex.Civ.App. 1945); Associated Employer's Lloyds v. Dillingham, 262 S.W.2d 544 (Tex.Civ.App. 1953). Although there is some dispute about what law applies in determining whether the insurance contracts in this case are enforceable, the court believes that the law in Arkansas on this subject is substantially similar to the law in each of the other states in which Wal-Mart did business during the relevant period.
The present situation is not within the holding of Contractors Safety Association. The California courts have not been called upon to decide how detailed the policy's dividend or participation provision must be in order to comply with sections 751 and 11738. In Key System Transit Lines v. Pacific Employers Ins. Co., 52 Cal.2d 800, 345 P.2d 257 (1959), the court had before it a policy provision which it characterized as follows: "* * * While there may be some ambiguity in the participating endorsement provisions of the policy as written, it seems entirely clear that any participating dividend would be payable thereunder only out of `surplus' derived from the overall experience of the insurer on workmen's compensation policies during the policy year `after adequate provision has been made for all losses, loss expenses, reserves, taxes and other charges,' and then only `as may be provided in the authorized refund plan of the Company.'"
The antidiscrimination statute, MCL 500.2019; MSA 24.12019, bars reformation of insurance contracts. See Broughton v Dona, 63 A.D.2d 1101; 406 N.Y.S.2d 581 (1978); Key Systems Transit Lines v Pacific Employers Ins Co, 52 Cal.2d 800; 345 P.2d 257 (1959); American Life Ins Co of Alabama v Aladdin Temple Benevolent Ass'n, 238 Ala. 512; 191 So 903 (1939). If plaintiffs are successful in their fraud claim, they can be adequately compensated in damages.
. . . For this reason agreements affecting the premium were brought within the scope of statutory and administrative regulation." ( Key System Transit Lines v. Pacific Employers Ins. Co. (1959) 52 Cal.2d 800, 804 [ 345 P.2d 257]; italics added.) And here we discern that the contractual provisions before us expressly, and without ambiguity, deny any dividend participation to an insured who is in default in paying the premiums on the policy or its immediate renewal.
Plaintiff therefore sought the sum of $3,824.47, the difference between what it did receive from defendant insurance company and what it would have received from Pacific Employers Insurance Company, plus $20,000 in exemplary damages. In sustaining defendants' demurrer without leave to amend, the court below indicated that it relied heavily upon the case of Key System Transit Lines v. Pacific Employers Ins. Co., 52 Cal.2d 800 [ 345 P.2d 257], cited by defendants. In that case the plaintiff sought to reform a policy of workmen's compensation insurance in accordance with representations of the company and then enforce that contract as reformed.
As our Supreme Court explained in Jones v. Superior Court, supra, 4 Cal.3d at pages 664-665: "[T]he rule has developed that an information which charges the commission of an offense not named in the commitment order will not be upheld unless: (1) the evidence before the magistrate shows that such offense was committed (Pen. Code, § 739), and (2) that the offense 'arose out of the transaction which was the basis for the commitment" on a related offense. (Parks v. Superior Court, supra, 38 Cal.2d 436, 443; see People v. Chimel [(1968)] 68 Cal.2d 436, 443, revd. on other grounds, [Chimel v. California (1969)] 395 U.S. 752; People v. Downer [(1962)] 52 Cal.2d 800, 809-810; People v. Evans [(1952)] 39 Cal.2d 242, 249.)" Decisional authority illustrates the point.
As our Supreme Court explained in Jones v. Superior Court, supra, 4 Cal.3d at pages 664-665: "[T]he rule has developed that an information which charges the commission of an offense not named in the commitment order will not be upheld unless: (1) the evidence before the magistrate shows that such offense was committed (Pen. Code, § 739), and (2) that the offense 'arose out of the transaction which was the basis for the commitment" on a related offense. (Parks v. Superior Court, supra, 38 Cal.2d 436, 443; see People v. Chimel [(1968)] 68 Cal.2d 436, 443, revd. on other grounds, [Chimel v. California (1969)] 395 U.S. 752; People v. Downer [(1962)] 52 Cal.2d 800, 809-810; People v. Evans [(1952)] 39 Cal.2d 242, 249.)" Decisional authority illustrates the point.