Jenkins v. Insurance Co. of North America

WALLIN, Acting P. J.

I dissent. I agree with parts VII, VIII and most of part IX, but particularly disagree with parts III and VI of the majority opinion. I would reverse the judgment and order a new trial.

The majority concludes the jury was properly instructed on INA’s duty to appeal the $716,000 verdict and judgment against Jenkins in the Brown case. While an insurer’s duty to defend may include, in an appropriate case, a duty to appeal, the evidence presented here did not establish Jenkins suffered any harm from the failure to appeal the judgment. The verdict, although substantial, was actually less than anticipated and was considered a victory for the defense. No one testified a reversal, followed by a retrial and a more favorable verdict, was likely.

Almost every trial record includes some “reasonable grounds for appeal,” but experience, statistics and common sense establish that relatively few appeals are successful. The appellate system could not exist as we know it if the law requires insurers, to avoid claims of bad faith, and presumably lawyers, to avoid claims of malpractice, to appeal whenever reasonable grounds can be found.

In this case an appeal would not have stayed the judgment creditors’ right to execute on Jenkins’s assets. No evidence suggests an appeal would have benefitted him in any way.

While substantial evidence does support the conclusion that INA unreasonably failed to disclose that its policies provided an additional $300,000 in coverage to Jenkins, the evidence does not support, as the majority holds in part VI, a claim that INA was guilty of a bad faith failure to settle the *1493 Brown case. Those plaintiffs never offered to settle for any less than $875,000, a sum much greater than the limits on INA’s policies and substantially more than the verdict. By the time that offer was received INA had paid, at Jenkins’s request, $225,000 of the $600,000 available under its policies to settle the Foell case. Although INA once estimated the Brown plaintiffs’ claims were worth no more than $75,000 each, there is no evidence those claimants would have accepted that amount at any time. Even a policy limits offer would not have avoided any of the harm Jenkins contends he suffered.

I also disagree with the majority’s initial citation of Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072 [ 234 Cal.Rptr. 835 ] in part IX of its opinion. An insurer has a duty to its insured “to approach the claim with an eye to defeating it rather than pay it” (maj. opn., nonpub. portion) when it is defending its insured in a tort action. INA fulfilled that duty.

The emphasis during the trial on the issues discussed by the majority in parts III and VI in the testimony, instructions and argument of Jenkins’s counsel substantially prejudiced INA. It should be granted a new trial.

Appellant’s petition for review by the Supreme Court was denied August 20, 1990.