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Hashimoto v. Republic Insurance Company2/13/2002
ative relief and at the same time use the privileges granted by that process to avoid development of proof having a bearing upon his rights to such relief.' [Citation.]" Stated another way, courts do not allow a plaintiff to use the privilege against self-incrimination as both a shield and a sword.
Thus, in Fremont Indemnity Company v. Superior Court an insured sued his insurer for benefits under his fire insurance policy but refused to answer any of the insurer's questions regarding the fire because he had been indicted for arson of the same structure. The Court of Appeal upheld dismissal of the plaintiff's complaint as a proper remedy in light of his assertion of his Fifth Amendment privilege. " e hold that the plaintiff's filing of an action to recover on the fire insurance policy operated to waive his constitutional privilege against self-incrimination with reference to any factual issues, particularly as to the applicability of the arson exclusion, tendered by the complaint. Even so, plaintiff finally may yet claim his privilege, but he will have to dismiss his lawsuit if he persists in doing so. As variously stated in the authorities we have relied upon, `he cannot have his cake and eat it too.'"
The trial court did not abuse its discretion in striking Matt's testimony and in dismissing his complaint. The court noted Matt's complaint put in issue his comparative bad faith and Republic thus had the right to inquire whether and how Matt had impeded or assisted its investigation. The court also noted Matt's testimony regarding whether he had affirmatively misled Republic regarding his involvement would be crucial in determining his credibility as a witness. In balancing Matt's constitutional right to refuse to testify against Republic's right to defend itself in this litigation, the trial court determined dismissal of Matt's complaint was justified in the circumstances.
Matt had every right to invoke his constitutional privilege against self-incrimination throughout the underlying proceedings and in this litigation. However, we agree doing so prevented Republic from developing evidence with which to defend against Matt's claims and with which to impeach Matt's testimony. His complaint for bad faith, as tried in this case, necessarily raised the factual issues of his comparative bad faith or unclean hands in his dealings with Republic. To prove he had acted in good faith required evidence Matt had at all times given factually accurate information to his appointed counsel to assist in preparing an effective defense to the wrongful death action. To rebut this evidence, Republic necessarily would seek to show Matt had lied about his involvement in Wade's death because the police investigation and witness testimony proved otherwise. Denying Republic the opportunity to cross-examine Matt concerning these subjects would have been a violation of Republic's due process right to a fair trial.
When used for purposes of impeachment, evidence from the underlying case was not, as Matt contends, irrelevant in this bad faith action. Moreover, and contrary to Matt's assertions, evidence of a witness's character trait for honesty or veracity is always admissible, unlike true propensity character evidence. The fact Republic sought to show Matt had a propensity for lying does not convert the evidence into inadmissible character evidence.
In sum, we conclude in the circumstances of this case the trial court properly struck Matt's testimony and dismissed his complaint.
II. THE TRIAL COURT CORRECTLY FOUND REPUBLIC FORFEITED ITS COVERAGE DEFENSES.
Republic contends the trial court's rulings precluding it from asserting coverage defenses on t
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