Johnson v. Threats

Opinion

ELKINGTON, Acting P. J.

Counts one and two of plaintiffs complaint alleged causes of action against defendant Archie Threats for damages for personal injuries, arising out of a motor vehicle accident alleged to have been caused by that defendant’s negligence, and his intentional, wanton, and reckless conduct.

[289]

By counts three, four, five, six and seven, the complaint sought damages from Archie Threat’s automobile liability insurance carrier, defendant State Farm Mutual Automobile Insurance Company (State Farm), its employees, defendants Louise SooHoo and William Day, and defendant Archie Threats, on the ground that they had engaged in unfair insurance claims practices, prohibited generally by Insurance Code sections 790-790.10 inclusive, and particularly by Insurance Code section 790.03, subdivision (h). Compensatory damages, and punitive damages of millions of dollars, were sought.

In the superior court defendant State Farm and its employees moved to strike counts three, four, five, six and seven. The motion was based upon their following argument:

“In our case the plaintiff is attempting to do just what the California Supreme Court in the Royal Globe Insurance Company case

[Royal Globe Ins. Co.

v.

Superior Court

(1979) 23 Cal.3d 880] said a plaintiff cannot do. At page 891, the

[Royal Gobe Ins. Co.]

court said: ‘Finally, we agree with defendant that plaintiff may not sue both the insurer and the insured in the same lawsuit. Section 1155 of the Evidence Code provides that evidence of insurance is inadmissible to prove negligence or wrongdoing. The obvious purpose of the provision is to prevent the prejudicial use of evidence of liability insurance in an action against an insured.’”

An order of the superior court thereafter struck counts three, four, five, six and seven. The appeal presently before us was taken by plaintiff from that order.

We conclude first, that the order was appealable. “If the . . . striking out of a pleading has the effect of finally determining the issues relating to the pleader’s rights . . ., the order is a final judgment as to him,” and is appeal-able. (6 Witkin, Cal. Procedure (2d ed 1971) Appeal, § 44, pp. 4057-4058.) And it is settled that an appeal is permissible “when the case involves multiple parties and a judgment is entered which leaves no issue to be determined as to one party.”