WOODS, J. Concurring and Dissenting. I agree with the majority that the appellant must fail in its action to recover for the alleged wrong of Allstar for the claimed failure of Allstar to make a prompt and reasonable settlement within the policy limits. The statute clearly [915]establishes that CIGA funds may not be used to compensate for the wrongful acts of the insolvent insurer. (Ins. Code, § 1063.2, subd. (g).)
I concur also in the reasoning and conclusion reached by the majority in barring appellant’s claim insofar as it is based on equitable subrogation, in that section 1063.1, subdivision (c)(7) forbids CIGA to pay such claims.
I disagree, however, with the analysis of, and conclusion that, CIGA is immune from tort liability for violation of the Unfair Practices Act, Insurance Code section 790 et seq.
The purpose of the act as set forth in section 790 “is to regulate trade practices in the business of insurance ... by defining, or providing for the determination of, all such practices in this State which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.” It is contended that CIGA is not engaged in the business of insurance and therefore cannot be held liable under the act, even though CIGA’s members are specifically prohibited from engaging in unlawful trade practices by Insurance Code section 1063.13. This position is untenable. It is irrelevant that CIGA does not sell insurance policies, it is engaged in one of the very portions of the insurance business that the Unfair Practices Act is intended to cover; it is engaged in the business of claims handling.
Section 790.03 defines unfair methods of competition and unfair and deceptive acts or practices in the business of insurance as: “(h) Knowingly committing or performing with such frequency as- to indicate a general business practice any of the following unfair claims settlement practices:
“(2) Failure to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.
“(5) Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.
[916]“(12) Failing to settle claims promptly, where liability has become apparent, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
“(13) Failing to provide promptly a reasonable explanation of the basis relied on in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement.”
If, as alleged, CIGA has blatantly refused to participate in settlement discussions, it has violated this section.
The majority opinion contends that plaintiffs tort theory conflicts with language in section 1063.12, subdivision (a), which provides that under no circumstances shall CIGA be liable for sums in excess of the amount of covered claims of the insolvent insurer.
Clearly, section 1063.12 means that under no circumstances can CIGA be liable for any sum in excess of the face amount of the policy on a covered claim. It was the obvious intent of the Legislature to insure that CIGA not be made to pay an excess claim against an insolvent carrier, nor be made vicariously liable for the bad faith torts of an insolvent carrier. There is no reason to believe that this language was intended, nor should it be interpreted, to mean that CIGA was granted immunity from tort liability by the Legislature. Section 1063.12 has no application to any judgment against CIGA based on its own tortious conduct.
The majority also makes much of the responsibilities of the Insurance Commissioner, as the enforcer of the Unfair Practices Act, to act as a bulwark against capricious action by CIGA in the processing of claims. It is their decision that appellant has failed to show a need for holding CIGA civilly liable, apparently concluding that the power of the commissioner to, after notice and hearing, issue a cease and desist order (§ 790.05) and impose a penalty of $50, or for a wilful violation $500, is an adequate remedy. I disagree.
With respect to the provision in subdivision (b) of section 1063.9, that a member “may appeal” to the commissioner, it is important to [917]note the permissive nature of the term. There is nothing in this language which compels a member to submit to this review. Further, it is argued by Interstate that it is not a “member insurer” it is “surplus line insurer” engaged in interstate commerce, which is covered by Insurance Code sections 1760 and 1761 et seq.
In any event, the authority of the commissioner to issue cease and desist orders to its members is not the only remedy available to Interstate and is not determinative of the issue before us. The Supreme Court held, in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880 [153 Cal.Rptr. 842, 592 P.2d 329], that the commissioner does not have the sole authority to regulate trade practices with regard to unfair or deceptive acts. Section 790.09 of the act provides that a cease and desist order issued by the commissioner under the provisions of the act shall not absolve an insurer from “civil liability or criminal penalty under the laws of this state arising out of the methods, acts or practices found unfair or deceptive.”
The judgment should be affirmed in part, but reversed as to the first cause of action, the respondent should be allowed to proceed against the appellant for violation of the Unfair Practices Act. (Ins. Code, § 790 et seq.)
A petition for a rehearing was denied December 10, 1981. Woods, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied January 20, 1982.