Low, Ball & Lynch’s
WEEKLY LAW RESUME
November
11, 2004 Issue By: Raymond
Coates
Civil Procedure - Prejudgment
Interest - Malicious Prosecution
George F. Hillenbrand, Inc. v.
Insurance Company of North America
Court of Appeal, Third District
(October 29, 2025)
Civil Code section 3291 authorizes prejudgment interest on personal injury
judgments if the defendant fails to accept an offer to compromise and the
judgment exceeds the amount of the compromise offer. This case decided
the issue of whether prejudgment interest can be awarded where the nature of
the action is malicious prosecution of a declaratory relief coverage action.
We previously reported on this case. A jury found that Aetna Insurance
Company maliciously prosecuted two declaratory relief lawsuits against George
F. Hillenbrand and his company, George F. Hillenbrand, Inc. The jury
awarded compensatory and punitive damages. Prior to trial, Hillenbrand
had made a C.C.P. section 998 offer to compromise his claim. The offer
had been rejected by the insurer, and the judgment was more than the
offer. Hillenbrand and Hillenbrand, Inc., filed post-trial motions for
prejudgment interest. The trial court denied the motion.
The Court of Appeal affirmed. It noted that section 3291 of the Civil
Code authorizes the recovery of prejudgment interest in actions for personal
injury. The Hillenbrands contended that their case was in the nature of
damages for personal injury. The Court stated that the determinative
factor was the nature of the right sued upon.
The California Supreme Court has previously held that an insurance bad faith
action is one seeking the recovery of a property right, not personal
injury. This is true even though incidental mental distress may accompany
the loss.
The Court of Appeal stated this case was similar to a bad faith
action. In this action, an insurer refused to provide benefits promised
in the policy. The insurer sued the Hillenbrands for declaratory relief
to avoid the duty to defend and indemnify. Instead of a bad faith claim,
the Hillenbrands filed an action for malicious prosecution following their
success in the underlying declaratory relief action. In that case,
damages were given for emotional distress.
The Court concluded the action was not one for personal injury. The
essence of the action was related to the protracted insurance dispute. It
arose out of their insurance policy and concerned a property interest.
The malicious prosecution action was brought to recover financial
damages. Such losses, even when accompanied by emotional distress, are
not subject to the prejudgment interest provisions. The Court therefore
affirmed the trial court ruling.
COMMENT
This case emphasizes that Civil Code section 3291, which authorizes the
recovery of prejudgment interest in personal injury actions, is not applicable
to actions for bad faith or for malicious prosecution actions, such as this
one, based upon the prosecution of a declaratory relief action. The Court
refused to expand this provision beyond the scope of the statute.
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