26 Cal.3d 912, 24083, Commercial Union Assurance Companies v. Safeway Stores, Inc.

• Date: 14 April 1980
• Citation: 26 Cal.3d 912,164 Cal.Rptr. 709,610 P.2d 1038
• Docket Number: 24083
• Parties: Commercial Union Assurance Companies v. Safeway Stores, Inc.
• Court: California Supreme Court

Page 912

26 Cal.3d 912

164 Cal.Rptr. 709, 610 P.2d 1038

COMMERCIAL UNION ASSURANCE COMPANIES et al., Plaintiffs and Appellants,

v.

SAFEWAY STORES, INCORPORATED, Defendant and Respondent.

S.F. 24083.

Supreme Court of California.

April 14, 1980.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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George A. Weinkauf, Jr., San Francisco, for plaintiffs and appellants.

Leonard M. Friedman, Los Angeles, as amicus curiae for plaintiffs and appellants.

Pillsbury, Madison & Sutro, Walter R. Allan, Bernard Zimmerman, Donald J. Putterman-Crigger and Wendell H. Goddard, San Francisco, for defendant and respondent.

BY THE COURT:

We granted a hearing herein in order to resolve a conflict between Court of Appeal opinions in this case and the earlier case of Transit Casualty Co. v. Spink Corp. (1979) 94 Cal.App.3d 124, 156 Cal.Rptr. 360. After an independent study of the issue, we have concluded that the thoughtful opinion of Justice Sabraw (assigned) for the Court of Appeal, First Appellate District, 158 Cal.Rptr. 97, in this case correctly treats the issues, and that we should adopt it as our own opinion. That opinion, with appropriate deletions and additions, ^[*] is as follows:

This case presents the question of whether an insured owes a duty ( ) to its excess liability insurance carrier which would require it to accept a settlement offer below the threshold figure of the excess carrier's exposure where there is a substantial probability of liability in excess of that figure.

Facts :

At all times relevant herein Safeway Stores, Incorporated (hereafter Safeway) had liability insurance coverage as follows:

(a) Travelers Insurance Company and Travelers Indemnity Company (hereafter Travelers) insured Safeway for the first $50,000 of liability.

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(b) Safeway insured itself for liability between the sums of $50,000 and $100,000.

(c) Commercial Union Assurance Companies and Mission Insurance Company (hereafter conjunctively referred to as Commercial) provided insurance coverage for Safeway's liability in excess of $100,000 to $20 million.

One Hazel Callies brought an action against Safeway in San Francisco Superior Court and recovered judgment for the sum of $125,000. Thereafter, Commercial was required to pay $25,000 of said judgment in order to discharge its liability under the excess insurance policy.

Commercial, as excess liability carrier, brought the instant action against its insured Safeway and Safeway's primary insurance carrier, Travelers, to recover the $25,000 which it had expended. Commercial alleged that Safeway and Travelers had an opportunity to settle the case for $60,000, or possibly even $50,000, and knew or should have known that there was a possible and probable liability in excess of $100,000. It was further alleged that said defendants had a duty to settle the claim for a sum less than $100,000 when they had an opportunity to do so. Commercial's complaint attempts to state two causes of action against Safeway and Travelers, one in negligence and another for breach of the duty of good faith and fair dealing.

Safeway demurred to the complaint on the grounds of failure to state a cause of action. The court sustained the demurrer with 20 days' leave to amend. When Commercial failed to amend its complaint, the complaint was dismissed as to Safeway. Commercial now appeals from the judgment of dismissal.( )

The present case is unusual in that the policyholder, Safeway, was self-insured for liability in an amount below Commercial's initial exposure. While this status may explain Safeway's reluctance to settle, it remains to be determined if the insured owes an independent duty to his excess carrier to accept a reasonable settlement offer so as to avoid exposing the latter to pecuniary harm. (Both of Commercial's theories of recovery, negligence and breach of good faith, depend upon the existence of such a duty.)

It is now well established that an insurer may be held liable for a judgment against the insured in excess of its policy limits where it has

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breached its implied covenant of good faith and fair dealing by unreasonably refusing to accept a settlement offer within the policy limits (Crisci v. Security Ins. Co., 66 Cal.2d 425, 429 (58 Cal.Rptr. 13); Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 661 (, 68 A.L.R.2d 883)). The insurer's duty of good faith requires it to "settle within policy limits when there is substantial likelihood of recovery in excess of those limits." (Murphy v. Allstate Ins. Co. (1976) 17 Cal.3d 937, 941 (, 132 Cal.Rptr. 424, 426, 586).)

Although an insurance policy normally only carries an express statement of a duty to defend, an insurer's duty to settle is derived from the implied covenant of good faith and fair dealing which is part of any contract (see 4 Witkin, Summary of Cal.Law (8th ed., 1974) § 754, p. 3050, and cases collected therein). This duty was first recognized in Comunale v. Traders & General Ins. Co., supra, 50 Cal.2d 654. The rationale for the "Comunale duty" was articulated by ( ) (us) at page 659, 328 P.2d at page 201: "It is common knowledge that a large percentage of the claims covered by insurance are settled without litigation and that this is one of the usual methods by which the insured receives protection. (See Douglas v. United States Fidelity & Guaranty Co., 81 N.H. 371 (127 A. 708, 712); Hilker v. Western Automobile Ins. Co. (204 Wis. 1, 231 N.W.2d 257) supra.) . . .

"The insurer, in deciding whether a claim should be compromised, must take into account the interest of the insured and give it at least as much consideration as it does to its own interest. (See Ivy v. Pacific Automobile Ins. Co., 156 Cal.App.2d 652, 659 ().) When there is great risk of a recovery beyond the policy limits so that the most reasonable manner of disposing of the claim is a settlement which can be made within those limits, a consideration in good faith of the insured's interest requires the insurer to settle the claim. Its unwarranted refusal to do so constitutes a breach of the implied covenant of good faith and fair dealing."

It has been held in California and other jurisdictions that the excess carrier may maintain an action against the primary carrier for ( ) (wrongful) refusal to settle within the latter's policy limits (Northwestern Mut. Ins. Co. v. Farmer's Ins. Group (1978) 76 Cal.App.3d 1031 (143 Cal.Rptr. 415); Valentine v. Aetna Ins. Co., 564 F.2d 292; Estate of Penn v. Amalgamated General Agencies (1977) 148 N.J.Super. 419 (372 A.2d 1124)). This rule, however, is based on the theory of equitable subrogation: Since the insured would have been able to recover from

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the primary carrier for a judgment in excess of policy limits caused by the carrier's wrongful refusal to settle, the excess carrier, who discharged the insured's liability as a result of this tort, stands in the shoes of the insured and should be permitted to assert all claims against the primary...