Smith v. Interinsurance Exchange

Opinion

CROSBY, J.

May a personal injury plaintiff sue the estate of a deceased insured to establish the decedent’s liability for the accident (Prob.

[303]

Code, § 721) and the decedent’s insurer for unfair claims practices (Ins. Code, § 790.03, subd. (h)) in the same action?

No.

I

On December 28, 1982, Patricia L. Smith was injured and her father, Gaylord Smith, killed when their vehicle collided with a truck. She petitioned the superior court to sue his estate for personal injuries pursuant to Probate Code section 721. That section provides in part, “(a) Notwithstanding any other provision of law, the presentation or filing of a claim shall not be required and a civil action may be maintained by a claimant to establish, to the limits of the insurance protection only, a liability of the decedent for which the decedent was protected by liability insurance. ...”

The petition was approved, but when the complaint was filed it contained two causes of action: one against Smith’s father’s estate to establish his liability for the accident pursuant to Probate Code section 721 and a second against his carrier for violation of Insurance Code section 790.03, subdivision (a), bad faith insurance practices.

1

The insurer demurred on the basis Smith’s action was premature because the insured’s liability had yet to be established.

(Royal Globe Ins. Co.

v.

Superior Court

(1979) 23 Cal.3d 880 [153 Cal.Rptr. 842, 592 P.2d 329].) The court sustained the demurrer without leave to amend, and Smith appeals from the judgment dismissing the second cause of action.

II

Smith concedes

Royal Globe