stating original insurer not released absent consent of insured, but remained jointly and severally liable with second insurer on policy transferred pursuant to reinsurance and assumption agreement
How later courts described this case
- stating original insurer not released absent consent of insured, but remained jointly and severally liable with second insurer on policy transferred pursuant to reinsurance and assumption agreement
- did not involve a release by insured in favor of insurers, but, explained that the burden of an obligation may be transferred with the consent of the party entitled to its benefit
Written by the judges who cited it.
The opinion
KENNARD, J.,
Concurring and Dissenting.—I concur with the majority opinion insofar as it concludes that the mandatory renewal provision (Ins. Code, § 1861.03, subd. (c)) does not apply to either an insurer or a reinsurer after the Insurance Commissioner has approved an application to withdraw. Although the facts of this case concern the nonrenewal of policies by insurers before the commissioner has decided whether to approve or disapprove the applications to withdraw, the legal issue is not necessarily so limited. In my view, the legal interrelationship between the question of the statute’s applicability before the commissioner’s decision and the question of its applicability after the commissioner has approved an application to withdraw is sufficient to warrant addressing both issues in this case.
If one concludes that the mandatory renewal provision applies prior to the commissioner’s decision, then its applicability after the commissioner’s decision should also be addressed. Otherwise, uncertainties could arise as to the validity of the statute itself because its unlimited application would prevent insurers from ever discontinuing business in California. This result, in turn, could give rise to a substantial doubt regarding the provision’s validity. (See Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 826-831 [ 258 Cal.Rptr. 161 , 771 P.2d 1247 ].) Given the circumstances, the failure to address the legal issue of the applicability of the mandatory renewal provision after a decision by the commissioner approving a withdrawal application could perpetuate the uncertainty and “exacerbate the burdens of the litigation.” (Sokol v. Public Utilities Commission (1966) 65 Cal.2d 247, 257 [ 53 Cal.Rptr. 673 , 418 P.2d 265 ].)
I disagree with the majority opinion’s conclusion that the mandatory renewal provision does not apply before a decision by the commissioner approving an application to withdraw. As to this issue, I agree fully with the views set forth in Justice Broussard’s dissenting opinion.