Trujillo v. Yosemite-Great Falls Insurance

Opinion

KINGSLEY, J.

Plaintiff appeals from a judgment dismissing his action against an insurer for bad faith after sustaining a demurrer to the original complaint without leave to amend. We agree that the complaint was clearly demurrable, but cannot say that plaintiff could not, if given the opportunity, supply the allegation necessary to state a cause of action.

Plaintiff claims to have suffered damages in an automobile collision with a driver insured by defendant. He contends that the insurer was guilty of bad faith in insisting on an unduly low settlement figure.

[28]

In the case at bench, the parties stipulated that the trial court could take judicial notice of the superior court file in the underlying action against the driver. As did the trial court, we treat the case at bench as though that file had been incorporated in the complaint. So treated, the allegations before us are: the collision; the insurance by defendant; the arbitration and award in favor of other persons suffering damages in the accident in amounts substantially higher than the settlement with plaintiff; the insurer’s offer to plaintiff of $9,000; plaintiff’s request for a $1,300 advance “to enable him to prosecute the action against the driver”; the insurer’s rejection of that demand and an acceptance by plaintiff of the $9,000 out of economic necessity.

Plaintiff here relies on the decision of Division Five of this district in

Rodriguez

v.

Fireman's Fund Insurance Companies, Inc.

(1983) 142 Cal.App.3d 46 [190 Cal.Rptr. 705]. We agree with defendant that that case is distinguishable but conclude that plaintiff may be able to amend his complaint so as to bring this case within

Rodriguez.

In

Rodriguez,

the court held that a bad faith action may be instituted even though the underlying action was finally determined by settlement rather than by trial and findings or verdict and that, by demurring to a complaint that alleged the insurer was aware of the liability of its insured, defendant had, at that stage of the case, admitted the liability of its insured and its duty to attempt to settle in good faith.