Opinion
VOGEL (Miriam A.), J. The question in this case is whether a judgment creditor may sue a judgment debtor’s insurance company under subdivision (b)(2) of section 11580 of the Insurance Code before an appeal from the judgment in the underlying action is resolved or the time within which to pursue an appeal has passed. Our answer is no.
Facts
In 1985,14-year-old Dwayne McKee was shot and injured by 13-year-old Jeffrey Townsend while the boys were playing at the home where Jeffrey [284]lived with his parents, David and Marilyn Townsend. The gun belonged to David Townsend and the house belonged to David Townsend’s business, Anafuel Corporation of America. Anafuel and the Townsends were both insured by State Farm Fire & Casualty Company (there were two policies, each with liability limits of $100,000). In addition, Anafuel had a general liability policy issued by National Union Fire Insurance Company of Pittsburgh, with policy limits of $1 million.
Dwayne (through his parents as guardians ad litem) sued the Townsends and Anafuel (Super. Ct. L.A. County, 1985, No. NWC10436). Before trial, Dwayne offered to settle with State Farm and National Union for policy limits. National Union declined but State Farm accepted and paid $200,000 to Dwayne. As part of the settlement, Dwayne promised that, if he prevailed, he would not enforce his judgment against the Townsends or Anafuel, but would look solely to National Union for payment. The case was thereafter tried, with National Union providing a defense to Anafuel, subject to a reservation of rights. Dwayne prevailed and on June 14, 1990, a judgment was entered in his favor and against Anafuel in the amount of $8,496,841. Anafuel appealed from that judgment.
In early 1991, while Anafuel’s appeal in the underlying case was still pending, Dwayne sued National Union, alleging a single cause of action under subdivision (b)(2) of section 11580 of the Insurance Code.1 Dwayne alleged that his efforts to collect from National Union had been unsuccessful and he prayed for Anafuel’s policy limits of $1 million. National Union answered and alleged, among other affirmative defenses, that Dwayne’s complaint was premature because his judgment against National Union’s insured was not yet final.
At the trial of this action, the parties stipulated that National Union’s policy was in effect at the time Dwayne was shot and that, except for the fact the judgment in the underlying action was not yet final, the judgment against Anafuel was otherwise within the coverage provided by National Union’s policy. The trial court found this action was not premature and entered judgment in favor of Dwayne in the amount of $1 million. National Union appealed from the judgment entered in this case.
While this appeal was pending, we affirmed the judgment in the underlying case (McKee v. Anafuel Corporation of America (Sept. 30, 1992) [285]B051463 [nonpub. opn.]) and the Supreme Court thereafter denied Anafuel’s petition for review (McKee v. Anafuel Corporation of America (Jan. 27, 1993) S029703). Although Dwayne has suggested this appeal is now moot, we disagree and therefore address the merits of the issue raised by National Union.
Discussion
The only issue is whether this action was premature when filed and tried. For the following reasons, we hold that it was.
A.
Under subdivision (b)(2) of section 11580, every liability insurance policy issued in this state must include a “provision that whenever judgment is secured against the insured . . . in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment.” In conformance with the statute, National Union’s policy provides that “[n]o action shall lie against [National Union]. . . until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and [National Union].” As we will explain, the statute and the standard policy language permit an action against an insurer only when the underlying judgment is final and “final,” for this purpose, means an appeal from the underlying judgment has been concluded or the time within which to appeal has passed.
B.
In Jennings v. Ward (1931) 114 Cal.App. 536 [300 P. 129], the plaintiff recovered a judgment for personal injuries against two insureds. While the insureds’ appeal from that judgment was pending, the plaintiff attempted to execute against the insureds, without success. At a judgment debtor examination, the plaintiff learned about an insurance policy and, by motion filed in the personal injury action, asked the court to compel the insurer to satisfy the judgment. The policy contained language substantially similar to the provision in National Union’s policy—“[n]o action shall lie against the company to recover upon any claim or for any loss under this policy unless brought after the amount of such claim or loss shall have been fixed and rendered certain either by final judgment against the Assured after trial of the issue or by agreement between the parties . . . .”—and the trial court therefore denied the motion. (Id. at pp. 536-537.)
[286]In affirming, the Court of Appeal explained it is “the settled rule in California . . . that a judgment is not final so long as an appeal is pending therefrom, even though a . . . bond has not been furnished. [Citations.] H] It follows that during the pendency of the appeal the amount of such claim or loss has not been fixed and rendered certain by final judgment as required by ... the policy so as to authorize an action thereon against the company.” (Id. at p. 537.) In our view, the slight difference in the policy language in Jennings does not affect its application to this case—because (as we explain in pt. C, post) the basic rule is that, so long as an appeal is pending, a judgment is not final.2
Although Jennings v. Ward, supra, 114 Cal.App. 536, is the only case factually on all fours with this case, a number of courts have reached similar results in similar situations. For example:
—In Fireman’s Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 1004 [216 Cal.Rptr. 796], the court held that an action under subdivision (b)(2) of section 11580 cannot be maintained “[u]ntil such time as a final judgment [is] entered” against the insured. (Italics added.)
—In Laguna Pub. Co. v. Employers Reinsurance Corp. (C.D. Cal. 1985) 617 F.Supp. 271, 272, an action against an insurer under subdivision (b)(2) of section 11580, the court held (with regard to a claimant whose judgment had been set aside) that under “ ‘the law of California ... a direct action against the insurer ... is not allowable until after the claimant shall have secured a final judgment against the insured.’ ” (Italics added.)
—In Mathews Cadillac, Inc. v. Phoenix of Hartford Ins. Co. (1979) 90 Cal.App.3d 393, 397 [153 Cal.Rptr. 267], an action against an insurer under section 11580, subdivision (b)(2), was dismissed because no judgment was ever entered against the insured, the court holding that “no liability accrues as an enforceable claim against the insurer until recovery of a final judgment against the [insured].” (Italics added.)
—In Zander v. Texaco, Inc. (1968) 259 Cal.App.2d 793, 807 [66 Cal.Rptr. 561], an action by a judgment creditor against an insurer, the court rejected [287]the insurer’s claim that the action was barred by limitations, explaining that the cause of action “did not arise until a final judgment against the insured had been entered.” (Italics added.)
—In Tashire v. State Farm Fire and Casualty (9th Cir. 1966) 363 F.2d 7, 10 (revd. on a federal procedure issue, State Farm Fire & Cas. Co. v. Tashire (1967) 386 U.S. 523 [18 L.Ed.2d 270, 87 S.Ct. 1199]), an interpleader action filed by an insurer, the court held that, under California law, “a direct action against the insurer is not allowable until after the claimant shall have secured a final judgment against the insured.” (Italics added.)
—In Chamberlin v. City of Los Angeles (1949) 92 Cal.App.2d 330, 332 [206 P.2d 661], a claimant’s action against an insurer, the court held that “it is a condition precedent to any action against the insurer that a final judgment be obtained against the assured.” (Italics added.)
—In Malmgren v. Southwestern Auto. Ins. Co. (1932) 126 Cal.App. 135, 139 [14 P.2d 351], an action against an insurer by the insured’s judgment creditor, the court held that the cause of action against the carrier brought after the time to appeal from the underlying judgment had expired “arose as soon as the judgment [in the underlying action] became final.” (Italics added.)
—In Levy v. Superior Court (1925) 74 Cal.App. 171, 175 [239 P. 1100], the court held that policy language virtually identical to National Union’s policy means that a judgment creditor cannot maintain an action “against the insurer until the recovery of a final judgment against the insured . . . .” (Italics added.)
Without a doubt, a final judgment is required.
C.
And, without a doubt, “final” means after an appeal is concluded or the time within which to appeal has passed. (Woolett v. American Employers Ins. Co. (1978) 77 Cal.App.3d 619, 624 [143 Cal.Rptr. 799] [a cause of action under § 11580, subd. (b)(2), arises when a final judgment against the insured has been entered, which is when the time for appeal has passed]; see also 2 Cal. Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar 1992) § 27.10 [a judgment is final for purposes of an action under § 11580, subd. (b)(2), “when the time for appeal has expired or, if an appeal is taken, after the appeal has been determined”].)
Under section 1049 of the Code of Civil Procedure, “[a]n action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment [288]is sooner satisfied.” For this reason, the Supreme Court explained in Pacific Gas & Elec. Co. v. Nakano (1939) 12 Cal.2d 711, 714 [87 P.2d 700, 121 A.L.R. 417], a judgment does not become final so long as the action in which it was rendered is pending and an action is deemed pending until it is finally determined on appeal or until the time for appeal has passed. The determination of the issue in the case is held in abeyance until the appeal is finally decided by an appellate court and the appeal operates to “ ‘keep alive the case ... as it existed before the judgment was rendered.’ ” (Ibid.) Pending the appeal, therefore, the plaintiff has only a claim for damages for injuries suffered or a chose in action arising in tort, and such a claim is not assignable. (Ibid.) For the same reason, we hold that it cannot support an action against an insurer under section 11580, subdivision (b)(2).
Other cases reach the same result for different reasons. In Nationwide Ins. Co. v. Superior Court (1982) 128 Cal.App.3d 711 [180 Cal.Rptr. 464], disapproved on unrelated grounds in Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 [250 Cal.Rptr. 116, 758 P.2d 58], the plaintiff was injured in an accident involving Nationwide’s insured. The plaintiff sued the insured and won and the insured appealed. While that appeal was pending, the claimant sued Nationwide for violations of section 790.03 (as was then allowed under Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880 [153 Cal.Rptr. 842, 592 P.2d 329], overruled by Moradi-Shalal v. Fireman’s Fund Ins. Companies, supra, 46 Cal.3d 287). Nationwide demurred, asserting the Royal Globe action was premature. The trial court overruled the demurrer but the Court of Appeal agreed with Nationwide and issued a writ of mandate directing the trial court to dismiss the action because the underlying judgment was not final. (Nationwide Ins. Co. v. Superior Court, supra, 128 Cal.App.3d at p. 714.)
As the Nationwide court explained, “[w]hen a court speaks of a final determination of liability it has reference to a judgment that is final for res judicata purposes .... The reason is apparent: unless the determination of liability and the amount of damages were finally determined in the res judicata sense, the insurer would not be collaterally estopped by the judgment from relitigating in the third party action facts relating to the question of liability and damages.” (Id. at p. 715.)3 A judgment is not “final” for res judicata purposes until the appeal is concluded or the time within which to [289]appeal has passed. (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 212, pp. 649-650, and cases cited.)
The res judicata analysis is equally persuasive in the section 11580 context. Unless the determination of the insured’s liability has been finally determined on appeal, the insurer might not be collaterally estopped by the judgment in the underlying action from relitigating in the section 11580, subdivision (b)(2), action facts relating to the questions of liability and damages. (See Parra v. Traeger (1931) 214 Cal. 535, 538 [6 P.2d 941]; see also 2 Cal. Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar 1992) § 27.4.)
Of course, the possibility of a reversal of the underlying judgment must be considered. If the appeal from the judgment in the underlying action did not have to be concluded as a condition precedent to an action under section 11580, subdivision (b)(2), a final judgment against the carrier could be followed by a reversal of the underlying judgment. Then what? If the carrier has paid the judgment, does it get its money back? Is a third lawsuit required? Does the claimant get paid by the carrier notwithstanding an appellate court’s ruling that, as a matter of law, the insured had no liability to the claimant? We think not. As we held in Williams v. Transport Indemnity Co. (1984) 157 Cal.App.3d 953, 960 [203 Cal.Rptr. 868], no enforceable claim accrues against an insurer unless and until the insured’s liability is, in fact, established. (See also Marenger v. Hartford Accident & Indemnity Co. (1990) 219 Cal.App.3d 625, 631 [268 Cal.Rptr. 290] [a carrier’s liability toward a third party is derivative in nature so that the insurer cannot be found liable toward third persons unless the insured itself is liable].)
D.
We reject Dwayne’s suggestion that Anafuel’s failure to post a bond to stay execution of the underlying judgment pending appeal permitted him to proceed with this action against National Union. A bond stays enforcement only against the judgment debtor and an action under section 11580, subdivision (b)(2), is not an enforcement action against the judgment debtor. It is a separate action against an insurance company, subject to different defenses, and the insurer is not a judgment debtor because it was not a party to the underlying action. (Code Civ. Proc., § 917.1, subd. (a) [the perfecting of an appeal does not stay enforcement of a money judgment payable by the appellant or another party to the action unless an undertaking is given]; Campbell v. Allstate Ins. Co. (1963) 60 Cal.2d 303, 305 [32 Cal.Rptr. 827, 384 P.2d 155]; Hall v. Travelers Ins. Companies (1971) 15 Cal.App.3d 304, [290308] [93 Cal.Rptr. 159]; see also Parra v. Traeger, supra, 214 Cal. at p. 538; Rose v. Royal Ins. Co. (1991) 2 Cal.App.4th 709, 715, 718 [3 Cal.Rptr.2d 483] [under § 11580, subd. (b)(2), the claimant must bring two separate actions; the insurer is not a party to the underlying action and there is no authority for its appearance in that action]; Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 514 [129 Cal.Rptr. 286] [an insured’s liability must be established independently and the insurer may not be joined in the action against the insured].)
As it happens, no bond was posted in this case because Dwayne, as part of his settlement with State Farm, had agreed not to execute against Anafuel. But even without that agreement, the only party which would have been affected by the absence of a bond would have been Anafuel—it was the only judgment debtor against whom enforcement could have been sought. (See Jennings v. Ward, supra, 114 Cal.App. at p. 537 [a judgment is not final so long as an appeal is pending even though a bond has not been furnished]; see also Code Civ. Proc., § 699.720, subd. (a)(3) [a “cause of action that is the subject of a pending action” is not subject to execution] and Code Civ. Proc., § 1049 [an action is deemed “pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed”].)4
E.
This leaves only the question about what to do with this case in light of the fact that the judgment in the underlying action is now final. Since the sole issue disputed below was prematurity, and since that was the sole issue on appeal, it follows ineluctably that reversal at this stage—when this action is no longer premature—would accomplish absolutely nothing. Since we try to avoid absurd results, we affirm. (See Grant v. Sun Indemnity Co., supra, 11 Cal.2d 438.)
Disposition
The judgment is affirmed. The parties are to bear their owns costs of appeal.
Aranda, J.,* concurred.
Unless otherwise stated, all section references are to the Insurance Code.
As more fully explained below, subdivision (b)(2) of section 11580 provides that every insurance policy issued in this state must permit a direct action against the carrier by a claimant who has secured a judgment against the insured in a personal injury, property damage or wrongful death action.
In Grant v. Sun Indemnity Co. (1938) 11 Cal.2d 438 [80 P.2d 996], the plaintiff sued the defendant for damages for bodily injuries and recovered a judgment. While the defendant’s appeal from that judgment was pending, the plaintiff filed suit against the defendant’s insurer. While the action against the insurer was pending, the judgment in the underlying case was affirmed and the pleadings in the action against the insurer were amended to reflect that fact. Judgment was then rendered against the insurer. On the insurer’s appeal, the Supreme Court approved the holding in Jennings v. Ward, supra, 114 Cal.App. 536, but held the amendment was proper for reasons having nothing to do with the validity of the rule now before us. (Grant v. Sun Indemnity Co., supra, 11 Cal.2d at pp. 440-441; see also Giordano v. American Fidel. & Cas. Co. (1950) 97 Cal.App.2d 309, 314 [217 P.2d 444].)
In Brown v. Guarantee Ins. Co. (1957) 155 Cal.App.2d 679, 690 [319 P.2d 69, 66 A.L.R.2d 1202], in answer in an argument that payment of an excess judgment by the insured was a prerequisite to the insured’s first party bad faith action against his insurer, the court explained that logic and reason support the contrary view, “that the insured’s cause of action arises when he incurs a binding judgment in excess of the policy limit.” (Italics added.) In Taylor v. State Farm Fire & Casualty Co. (1985) 172 Cal.App.3d 557, 560 [218 Cal.Rptr. 403], another first party action under section 790.03, we held that an action against a carrier [289]could not be pursued while an appeal from the judgment in the underlying action was pending. See also Caminetti v. Guaranty Union Life Ins. Co. (1943) 22 Cal.2d 759, 766 [141 P.2d 423] [“finality is not accorded a judgment until affirmance in the event of an appeal”].)
After we filed our opinion in the underlying case, National Union filed a supplemental brief in this case raising a new issue about coverage. We summarily reject that claim of error because this case was submitted to the trial court on stipulated facts, one of which was that coverage within policy limits was not disputed. All coverage issues have therefore been waived.
Judge of the Municipal Court for the South Bay Judicial District sitting under assignment by the Chairperson of the Judicial Council.