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Unreasonable failure to pay a judgment creditor

Unreasonable failure to pay a judgment creditor

The critical question thus left pregnant but unresolved by Murphy, supra, 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584, is whether an unreasonable, bad faith refusal to pay a judgment creditor claimant the entire amount of the judgment, after it becomes final, implicates some recognizable duty of good faith by the insurer under its policy, which was intended to benefit such a third party beneficiary. We believe so.

Although the policy in this case does not appear in the record, it may safely be inferred that it included “the usual promise to pay ‘on behalf of the insured … all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage….’ ” (Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 511, 129 Cal.Rptr. 286.) There can be no doubt that, pursuant to this express policy **266 undertaking, the implied covenant of good faith and fair dealing imposes a duty not to withhold in bad faith payment of damages which the insured has become obligated by judgment to pay. Certainly with respect to the insured, “The duty to so act is immanent in the contract whether the company is attending to the claims of third persons against the insured or the claims of the insured itself. Accordingly, when the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort.” (Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at p. 575, 108 Cal.Rptr. 480, 510 P.2d 1032.)

Moreover, unlike the duty to settle that was at issue in Murphy, supra, 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584, the duty not to withhold in bad faith payment of adjudicated claims runs not only in favor of the insured but also in favor of a judgment creditor such as plaintiff here. Section 11580 operates as part of a larger body of California law that seeks to assure that accident victims will be securely compensated through automobile policies. (See Barrera, supra, 71 Cal.2d at p. 672, 79 Cal.Rptr. 106, 456 P.2d 674.) “The public policy expressed in the Financial Responsibility and related laws requires that we construe statutes applicable to automobile liability insurance policies, as well as contractual provisions in those policies, in light of its purpose to protect those who may be injured by the use of automobiles.” (Ibid.) Accordingly, the insurer’s policy duty to pay adjudicated liabilities is in place as much to protect adjudicated injured parties from uncompensated loss as to protect the insured from personal financial disaster.

To this end, once having secured a final judgment for damages, the plaintiff becomes a third party beneficiary of the policy, entitled to recover on the judgment on the policy. At that point the insurer’s duty to pay runs contractually to the plaintiff as well as the insured. And the plaintiff having also become a beneficiary of the covenant of good faith (Murphy, supra, 17 Cal.3d at pp. 943–944, 132 Cal.Rptr. 424, 553 P.2d 584), the duty to exercise good faith in not withholding adjudicated damages necessarily is owing to the plaintiff also.

Farmers argues that this conclusion ignores and conflicts with section 11580, in that the statute in terms provides the judgment creditor only a right of action against the insurer, not a right to payment without suit. In support, Farmers cites Billington v. Interinsurance Exchange (1969) 71 Cal.2d 728, 79 Cal.Rptr. 326, 456 P.2d 982 (Billington), in which the Supreme Court noted that “under our existing direct action statute [§ 11580] an injured party is compelled to bring two lawsuits if he seeks to collect a judgment from the insurer which issued a liability policy.” (Id. at pp. 744–745, 79 Cal.Rptr. 326, 456 P.2d 982.)

The quoted, descriptive statement was made in response to an argument that allowing insurers to assert the defense of the insured’s noncooperation would unfairly require a creditor to bring two suits. Farmers’s broader argument that the rights of the class enabled by section 11580 extend no further than its bare terms is fallacious, for several reasons.

13 First, section 11580 cannot be read to create merely a judicial remedy, without an underlying right; and it is clear from the history of the *1859 statute that its purpose and effect was to create a right in the insurance contract. (See Malmgren v. Southwestern A. Ins. Co. (1927) 201 Cal. 29, 33, 255 P. 512 [Malmgren].) Indeed, as a matter of public policy, duties beyond those specifically set forth in section 11580 have been imposed on insurers for the benefit of statutory creditors. (Barrera, supra, 71 Cal.2d at pp. 668–678, 79 Cal.Rptr. 106, 456 P.2d 674.)

Second, judgment creditors granted a right of action by the statute have been repeatedly and definitively held to be third party beneficiaries of the policy. (Murphy, supra, 17 Cal.3d at p. 943, 132 Cal.Rptr. 424, 553 P.2d 584.) And, as explained in Murphy, these beneficiaries are entitled to performance, without suit, of implied covenants and duties imposed to secure their benefits, just as they are not entitled to invoke duties unnecessary, or in addition, to their receiving “all intended benefit.” (Id. at p. 944, 132 Cal.Rptr. 424, 553 P.2d 584.)

Finally, contrary to Farmers’s insinuation, a right of action for breach of the implied covenant of good faith need not be sought or found in the statute, because the actionable duty has always been implied by law from and into the contract itself. Although particular legislation might possibly supersede or “repeal” the implied covenant, it is nowise the necessary source of it. Presently, section 11580 has been authoritatively construed as recognizing, not excluding, the covenant of good faith as part of the parties’ relationship. (Murphy, supra, 17 Cal.3d at p. 943, 132 Cal.Rptr. 424, 553 P.2d 584; see fn. 7, ante.)

Hand v. Farmers Ins. Exchange (1994) 23 Cal.App.4th 1847, 1857-59 [29 Cal.Rptr.2d 258, 265-67]

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at or contact us through e-mail: