Opinion

Jaloff v. United Auto Indemnity Exchange

  • 121 Or. 187
  • 253 P. 883
  • 1927 Ore. LEXIS 68
Court
Oregon Supreme Court
Filed
Dec 7, 1926
Status
Published
Author
McBRIDE
On the bench
McBride, Brown, Bean, Belt
Cited by
14 cases

insurer’s wrongful refusal to defend is breach of contract that releases the insured from agreement not to settle without consent of insurer and waives condition that limits insurer’s liability to judgments rendered against insured after trial

How later courts described this case

  • insurer’s wrongful refusal to defend is breach of contract that releases the insured from agreement not to settle without consent of insurer and waives condition that limits insurer’s liability to judgments rendered against insured after trial

Written by the judges who cited it.

The opinion

McBRIDE, J.,

Dissenting in Part. — I do not think the pleadings in this case sufficiently broad to sustain the conclusion arrived at. There is no allegation of any liability on the part of the plaintiff to pay the claims, which it is alleged were adjusted and settled.

*202

In all of the cases I have examined, this allegation seems to have been made. Further, there is no positive allegation that the plaintiff has paid anything pursuant to the alleged “settlement and adjustment.” In the absence of this allegation, I am of the opinion ■that this phase of the case has not been met to justify the judgment against the defendant here.

The cases cited by Mr. Justice Brown seem fairly logical to sustain the contention, that by failure of the insurance company to defend, as they had agreed, the waiver arose which authorized the plaintiff in this case to settle and pay the claims. But such a course would be liable to frequent abuse unless plaintiff should positively plead and prove that there was an actual liability and an actual

bona fide

payment of money pursuant to such agreement. I do not think that sufficiently appears in the pleadings in this case, and that evidence on that subject was improperly admitted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.