Pigg v. International Indemnity Co.

California Court of Appeal Nov 14, 1927 No. Docket No. 5966.Published

Before: Koford

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Holding. The court held that a judgment creditor's right to sue an insurance carrier under a liability policy is a property right that survives the creditor's death and passes to their estate. Furthermore, the court affirmed that the insurer's liability includes the policy limit plus taxed costs and interest on the judgment amount.

Issues

Whether the insolvency of the insured is a condition precedent to an action against the insurance carrier.
Whether a cause of action against an insurer upon a judgment survives the death of the judgment creditor.
Whether the evidence supported the trial court's finding that the insured did not violate the cooperation clause of the policy.
Whether the insurer's liability is limited strictly to the principal amount of the policy or includes costs and interest.

Disposition. affirmed

Quotations verified verbatim against the opinion

“At the time he obtained this judgment he also acquired, by the force of the statute and the policy, the right to bring an action against the insurance carrier. This right of action was an action upon a judgment—a contract”

“The right to sue the insurance carrier upon the judgment was an incident to the judgment and passed along with that judgment to his estate as an asset thereof.”

KOFORD, P. J.

The deceased, William R. Pigg, was injured by a motor vehicle driven by T. Knnitake. The latter was insured against liability by the defendant and appellant. William R. Pigg recovered judgment against

[673]

Kunitake for Ms injuries, and, the judgment remaining unpaid after death of said Pigg, his executrix brought this action against the appellant under one of the provisions of the liability insurance policy sold to Kunitake. This provision was made in pursuance of an act of the legislature. (Stats. 1919, chap. 367, p. 776.) This statute requires such a liability policy to state that insolvency of the insured shall not release the insurance carrier, and to state that “in case judgment shall be secured against the insured . . . then an action may be brought against the company. ...” In

Marple

American Automobile Ins. Co.,

82 Cal. App. 137 [255 Pac. 260], we held that insolvency of the insured was not a condition to such action against the company, but that it was only necessary to obtain a judgment against the insured. In view of this authority it is unnecessary for us to consider the appellant’s claim that the evidence did not support the trial court’s finding of the insolvency of the insured based upon the return of an execution

nulla bona.

The statute requires said policy to state “in case judgment shall be secured against the insured ... an action may be brought. ...” The policy here used the expression “in case judgment shall be secured against

such insolvent”

instead of against

the insured.

Whatever uncertainty this gives rise to must be resolved in favor of the statutory requirement because: First, another provision of the policy (sec. 14) expressly incorporates into the policy any specific statutory provision at variance with any condition to the policy; and, second, the statutory provision is a part of the policy.

Pigg v. International Indemnity Co.

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KOFORD, P. J.

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