Pacific Indemnity Group v. Dunton

[506]

PIERCE, P. J.

In this opinion reversing a summary judgment for defendants, we answer affirmatively the following question: May a tortfeasor-judgment debtor be liable to the tort victim’s collision-insurer for having paid the tort victim’s full judgment without deducting the amount theretofore paid by the insurer to the victim where (a) said insurer had notified the tortfeasor, before a (compromise) judgment, of its subrogation claim and (b) the tortfeasor (through

his

insurer) had promised said eollision-insurer-subrogee that its name would be included

‘

‘ on the draft ? ’ ’ The basis of our holding is that because those facts appear in the proceedings for summary judgment there is a triable issue of fact under principles of estoppel.

On February 23, 1962, a Ford pickup owned by Albert and Roy Barrow (the Barrows) was involved in a collision with a panel truck driven by defendant Dunton and owned by defendant Barnett (tortfeasors). The Barrows carried collision insurance ($50 deductible) with plaintiff, Pacific Indemnity Group (Pacific). Claiming negligence, the Barrows sued tortfeasors for personal injuries and for the

full

property damage to their pickup. Tortfeasors’ insurer (PL and PD) was State Farm Mutual Insurance Company (State Farm) which furnished them an attorney to defend and who apparently took full charge of the litigation, including negotiations for a settlement.

Meanwhile, Pacific paid the full collision coverage: total damage to the pickup $691, less $50 deductible. It then, through its claims manager, Hennessy, notified tortfeasors of its subrogation rights for the amount paid, less salvage. On April 17, 1962, tortfeasors forwarded the letter to their insurer, State Farm, advising Pacific that State Farm was their insurer. All negotiations thereafter were between Pacific (through Hennessy) and representatives of State Farm.

On April 23, 1962, State Farm wrote Pacific, acknowledging their public liability and property damage coverage and stated: “I respectfully ask that you diary your file for a liberal period.” The letter asked for documents “in support of your subrogation claim.” On May 1, 1962, the requested information was furnished by Pacific. On July 20, 1962, State Farm advised Pacific that suit had been filed by the Barrows; it gave the name of their attorney, Harry Ackley, and stated that the damages prayed for included the full property damage. The letter also asked whether Pacific’s subrogation rights had been assigned to Ackley. On August 10, 1962,