Travelers Indemnity Co. v. Kowalski

SALSMAN, J.

Appellant sought a declaratory judgment that because respondent Kowalski did not comply with the terms of the automobile liability insurance policy issued to him by appellant, or with the provisions of Insurance Code section 11580.2, subdivision (c) (3), he had no right to assert a claim against appellant under the uninsured motorist coverage of the policy. The trial court denied the relief requested.

The facts are not in dispute. Appellant issued a policy of automobile liability insurance to respondent. The policy included uninsured motorist coverage as required by Insurance Code section 11580.2. The policy specified, as does the statute, that the uninsured motorist coverage did not apply to injuries with respect to which the insured had, without written consent of appellant, prosecuted an action to judgment against any person who might be liable therefor.

Respondent was involved in an accident with an uninsured motorist. He filed suit and prosecuted his action to judgment without the knowledge or consent of appellant. He obtained a judgment for $9,500. Thereafter he invoked the uninsured motorist provisions of his policy and demanded arbitration of his claim. Respondent also offered to assign the judgment to appellant and to take any steps relating to the judgment that appellant might desire.

The trial court found that appellant was not prejudiced by respondent’s action in taking judgment against the uninsured motorist and concluded that respondent was entitled to proceed to arbitration pursuant to the terms of the policy.

Thus, the narrow question presented is whether uninsured motorist coverage is lost if suit against the uninsured motorist is prosecuted to judgment without the consent of the insurer.

Insurance Code section 11580.2 was first enacted in 1959, and although amended from time to time thereafter, it is conceded that it is the statute as originally enacted that

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has application to the facts of this case. The statute establishes as a matter of public policy that every bodily injury motor vehicle liability policy issued or delivered in this state should provide uninsured motorist coverage