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Marenger v. Hartford Accident and Indemnity Co.3/14/1990
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE
No. A044404
1990.CA.41008 ; 219 Cal. App. 3d 625; 268 Cal. Rptr. 290
March 14, 1990
GREGORY MARENGER, PLAINTIFF AND APPELLANT,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY ET AL., DEFENDANTS AND RESPONDENTS
Superior Court of the City and County of San Francisco, No. 896763, Stuart R. Pollak, Judge.
Gordon, DeFraga, Watrous & Pezzaglia and Allan DeFraga for Plaintiff and Appellant.
Lillick & Charles, Stephen C. Johnson, Jeffrey A. Blair, Crosby, Heafey, Roach & May, James C. Martin and Kathy M. Banke for Defendants and Respondents.
Opinion by Newsom, J., with Racanelli, P. J., and Holmdahl, J., concurring.
Newsom
Plaintiff and appellant, Gregory Marenger, filed an action on September 12, 1988, under Insurance Code section 790.03, subdivision (h), alleging that respondents refused to negotiate in good faith to effectuate a prompt, fair and equitable settlement of his personal injury action. Hughes Aircraft Company (hereafter Hughes) and Thermogenics, Inc. (hereafter Thermogenics), among other defendants, were sued by appellant for serious personal injuries he sustained in a "multi-vehicular" accident on November 2, 1980. Respondent Hartford Accident and Indemnity Company (hereafter Hartford) provided the primary policy of comprehensive liability insurance to Hughes and Thermogenics in the amount of $1 million, while respondents American Home Assurance Company (hereafter American) and Southeastern Aviation Underwriters (hereafter Southeastern) provided excess policy coverage.
Appellant's action for personal injuries was consolidated with others arising out of the same accident, and ultimately proceeded to trial. The jury found against appellant, but upon his motion the trial court found defendants Hughes and Thermogenics liable as a matter of law, and entered a
judgment notwithstanding the verdict, in favor of appellant on December 29, 1983. Hughes and Thermogenics filed an appeal from the judgment of the trial court. This court affirmed the judgment on September 14, 1987, and remanded the case to the trial court for a new trial on the issue of damages only.
Jury trial on the issue of damages in the underlying personal injury suit had not been held when appellant filed the present action against respondents, alleging that throughout the course of the litigation of the personal injury suit respondents "failed and refused and continue to fail and refuse, to attempt in good faith to effectuate a prompt, fair and equitable settlement of plaintiff's claim on which liability has been established in violation of their statutory duty as imposed upon them by ยง 790.03 (h) of the Insurance Code of the State of California." Appellant seeks damages for "additional costs and fees connected with continuing the litigation," and emotional harm which "will continue to accrue in the future."
Appellant filed the present action to avoid the consequences of Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287 [250 Cal. Rptr. 116, 758 P.2d 58] (hereafter Moradi-Shalal), in which our high court overruled its previous opinion in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal. 3d
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