Low, Ball & Lynch’s
WEEKLY LAW RESUME
October
21, 2004 Issue By: Raymond
Coates
Bad Faith - Discovery - Other
Claim Files
Permanent General Assurance Corp.
v. Superior Court
Court of Appeal, Fourth District
(October 12, 2026)
One avenue of discovery in bad faith actions is an attempt by claimants to
obtain claim files pertaining to other insureds. This case reexamines
that issue in light of recent decisions.
Maria Luisa Hernandez filed an action for breach of insurance contract,
breach of implied covenant of good faith and fair dealing, and intentional and
negligent infliction of emotional distress arising out of the alleged wrongful
denial of her claim for theft of her vehicle by Permanent General Assurance
Corporation. During discovery, she propounded a request for production of
documents on Permanent General seeking all claim files for all insureds who had
submitted a claim for vehicle theft since January 1, 1998. Permanent
General objected to this request. Hernandez filed a motion to
compel. She alleged that Permanent General had a practice of racially
discriminatory claims handling practices. The files were sought to show
that practice. The trial court granted the motion to compel. The
court ruled that no authorizations had to be obtained from the insureds whose
files were produced because an authorization had been obtained in prior
litigation involving a different insured.
Permanent General filed a petition for writ of mandate. The Court of
Appeal granted the petition in part. Permanent General asserted that in
the wake of State Farm Mutual Auto Ins. Co. v. Campbell (2003) 538 U.S.
408, the landmark decision involving punitive damages, evidence of a pattern or
practice could not be used to support such an award. It further contended
that pursuant to Insurance Code section 791.13, information concerning other
insureds was privileged. Finally, it contended the authorization in the
prior case could not be used in this case.
The Court of Appeal agreed that authorization for release of claims
information from each insured was required under Insurance Code section
791.13. The authorization obtained in the prior action related solely to
that action and provided no authorization in this case.
Hernandez argued that discovery was justified under Colonial Life &
Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785. In Colonial
Life, discovery of other insurance files was allowed in a bad faith action
for settlement practices in violation of Insurance Code section 790.03.
The Court stated such causes of action have been eliminated in California, and
thus, the evidence could not be justified by reference to Colonial Life,
nor could it be allowed on the basis that plaintiff might amend her complaint
to allege unfair settlement practices in violation of Business &
Professions Code section 17200. It has been specifically held that that
code section cannot be used to plead around the bar of causes of action based
on Insurance Code section 790.03.
As to proving reprehensibility as a basis for punitive damages, the Court
stated that after Campbell, a defendant can be punished only for the
harm done to the plaintiff. Pattern and practice evidence is irrelevant
to and inadmissible for purposes of assessing punitive damages.
However, the Court concluded the evidence was relevant to the bad faith
cause of action predicated on a pattern and practice of discriminatory claim
handling based on ethnic, racial or low-income background. For that
reason alone, such discovery could be allowed.
The Court granted the petition in part directing the trial court to conduct
a hearing to determine an appropriate procedure for Hernandez to obtain
authorization from California insureds for release of their claim files pertaining
to vehicle theft claims. The Court held the prior authorization obtained
in another case could not be used in this case.
COMMENT
This case contains several important comments concerning discovery of other
claim files. It specifically states that such discovery cannot be
justified under Colonial Life nor under Campbell's standards
applicable to punitive damages cases.
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