Krupnick v. Hartford Accident & Indemnity Co.

Dist., Sept. E006810.Fourth Div. Two. [No. 1994.] al., JUDITH KRUPNICK et Appellants, Plaintiffs al., et HARTFORD AND COMPANY ACCIDENT INDEMNITY Respondents. Defendants and partial

[Opinion publication.*] certified * Discussion, Parts I involving and HI under the claims for intentional infliction of emotional distress and claims for a of Civil are “violation” Code section not ordered published 976(b), because do not publication meet the criteria for in rule contained See, also, 976.1(a). California opinion Rules of Court. rule The balance of the is ordered published. Counsel

Weldon and Linda M. Wilde Diggs Appellants. for Plaintiffs and Hawkins, Lindahl, Beck, Tina & Rena Denton and Kelley Schnabel K. M. M. Bailer for Defendants and Respondents.

Opinion settled McDANIEL, had (plaintiffs) After Judithand Albert Krupnick J.* Hester, tortfeaser, Roy their action their personal injury $295,000, in which Hester’s they remained over the manner yet distraught its insurance Hartford Accident and Indemnity Company, company, District, (Gov. judge status Appeal, *Retired Associate of the Court of Fourth senior Justice Code, 75028.1), the Judicial Council. sitting assignment by Chairperson under § nego- the settlement (defendants) had conducted McWorter John employee result, seeking to litigation, the underlying commenced tiations. As a noted, purely for their recompense as the settlement money, beyond recover under then viable theory under a distress. Their action proceeded Cal.Rptr. 23 Cal.3d 880 Superior Court Royal [153 Globe Ins. Co. v. (post), discredited Globe). That now (Royal theory, 592 P.2d 329] adverse, first party’s party against a direct action third permitted carrier, carrier, with the dealing instances where the those insurance in the defined practices in unfair settlement engaged third had party, Insurance Code. the Supreme action was Royal Globe-type pending,

While plaintiffs’ Court, (1988) Cal.3d Companies Fireman’s Fund Ins. Moradi-Shalal v. Royal (Moradi-Shalal), overruled 758 P.2d 58] which define Code provisions held that the Insurance Globe. Moradi-Shalal to permit intended by Legislature were never practices unfair settlement (Id. at p. an insurance company. civil action directly against a third party, observed, with otherwise 304.) In the of its Moradi-Shalal opinion, course by third claimant direct owed to regard any presumed insurer, insurer, interest for the conflict of tends to create a serious “[i]t insured, also must safe- of its but must not the interests only protect who claimant. the third party interests from the adverse claims of guard its own disadvantage and may the settlement disrupts process This conflict (Id. at p. insured.” Moradi-Shalal, their amended

As a of the ruling consequence facts which law on the same at common based damages to seek complaint under the Insurance practices unfair settlement alleged had constitute which decried facts, set relying upon single Code. complaint, sought negotiations, of settlement defendants’ behavior their conduct distress; 2) negligent emotional 1) for: intentional infliction of distress; Code section 3) of Civil of emotional “violation” infliction court, effort, heed to the paying In amended the trial 1714. to such response noted, motion for judg- defendants’ granted pronouncement Moradi-Shalal all three counts. ment on the as to pleadings readily can be one and three of error as to counts assignments Because this the published portion under established precedents, disposed facts under the pleaded the issue of whether will be confined to opinion infliction of emotional negligent a cause of action for count two state distress. era,

Thus, review an upon are here called in this we post-Molien1 to recover third party plaintiffs effort in the trial court unsuccessful their tortfeasor’s directly emotional distress money damages purely distress, noted, arose because of the allegedly as insurance Such company. this reality, were conductеd. negotiations manner which the settlement case, on infliction of insofar as it involves a claim based us, distress, despite disguised persuade to a effort thinly amounts Globe, law include within the theories of common Royal overruling the same facts a cause of action based negligence, upon precisely Globe, Royal before were under the Insurance Code pursuant actionable review will the trial court why that case was overruled. Our explain as to count two. judgment pleadings correct in the motion for granting contentions, in the Moradi-Shalal nothing to one of there is As plaintiffs’ engraft upon itself which effort to language supports latter-day reflecting common law a cause of action an insurer’s conduct grounded upon held Globe under the by Royal those unfair settlement actionable practices Insurance Code but now discredited. contentions,

As to another of such a cause of action is not Moradi-Shalal, sanctioned language language by contained particular which California were Court that its litigants Supreme assured to overrule did Royal “jurisdiction impose decision Globe not foreclose civil in common law damages other remedies insurers appropriate actions, fraud, based on such traditional theories as emotional infliction of distress, (as insured) either to the breach of contract or breach of (Moradi-Shalal, supra, covenant faith 46 implied dealing.” and fair good 287, 304-305, added; hereinafter, Cal.3d the “reassuring language.”) italics view, In our closer this does not upon scrutiny, “reassuring language” us, overruling constitute a substantive holding; beyond assures only Globe, Royal that has As a it cannot and does nothing changed. consequence, law, not itself recognition negligence constitute of a action common here, the kind such action were especially of undertaken unless by plaintiffs That, course, already we are called to decide. recognized. upon is what correct, The trial under ruling precedent court’s because principally, Molien, which has evolved since have failed to facts plaintiffs plead bring negligent them within that now-defined salient where claims for As a recognized. infliction of emotional distress have come to be purely conclusion, 14 we go to later elaboration must back about preface upon to Molien. The in that extended the bound- years Court decision Supreme distress, aries of emotional negligence liability purely unaccompanied for 831, Hospitals 1Molien v. Kaiser Foundation (1980) Cal.Rptr. 616 P.2d 27 Cal.3d 916 [167 813, (Molien). 16 A.L.R.4th 518] 190 trauma, beachhead earlier out Dillon v. beyond small staked

physical 72, 912, 441 (1968) Cal.2d P.2d 29 A.L.R.3d Legg Cal.Rptr. 68 728 [69 in so-called only special The Dillon foothold involved instances 1316]. cases, Molien, in Since have been at 26 sounding cases. there least bystander sought recovery purely in which the have emo negligence, plaintiffs distress, every instance. tional in foreseeable (1994) are in Glaser 22 1398 analyzed Cal.App.4th These cases Bro v. [27 (Bro) and are collected and classified an Cal.Rptr.2d appendix 894] shows, (Id. 1444.) distress Such emotional opinion. analysis purely in the all Bro negligence, cases based on that not succeed. As appears succeeded; analysis nine failed. The Bro draws on seventeen catalogue, clear, authority Court which makes because emotional distress Supreme to define in this kind of case always foreseeable, any attempt useless, Superior if foreseeability (Burgess terms of not futile. Court 1064, 615, [Burgess]; 2 Cal.4th 831 P.2d Cal.Rptr.2d 1197] [9 865, Thing v. La Chusa 48 Cal.3d 663-664 814], [Thing].) P.2d whether the

In view of the here is facts foregoing, required inquiry have fall side of line. pleaded nonliability on the Such line has as a some claims for emerged since Molien result оf (Bro, failing. infliction of distress and others succeeding short, cases, supra, 1444.) just negligence all Cal.App.4th succeed, had to exercise facts which raised allege emotional distress reasonable care infliction of avoiding impermissible duty. of that This failed to do. breach no one in this state has ever recovered particularly, More distress in action he or she could first purely emotional unless negligence Bro, (See be characterized as a Cal.App.4th direct victim. Moreover, Burgess it was until was decided of “direct victim.” Supreme provided working Court definition simple, between Burgess relationship announced the of a presence preexisting that “which That defines the ‘direct victim.’ label parties phrase signifies 1074.) more.” nothing (Burgess, supra, Cal.4th definition, did enjoy precedent- Under such because plaintiffs defendants, they with no care arose and were prescribed relationship duty of having foreclosed from their claim for infliction impermissibly evaluated to determine if a had been protected distress interest invaded, as were the foreclosed the Molien cases just plaintiffs post Bro, 1398, 1418, 1444. supra, cited and tabulated page Cal.App.4th We shall affirm judgment accordingly. Background and Procedural

Factual A. Action The Antecedent Traffic-collision riding, were plaintiffs the vehicle which Hester “rear-ended” Roy later, filed the plaintiffs Five months were as a result. injured plaintiffs antecedent, from injury damages recover personal traffic-collision action to Inc., the com- (the insured) Systems, National Car Rental Hester from he at the time driving had rented the car was the insured pany later, to section 998 two and one-half years pursuant the collision. About Procedure, statutory with a served plaintiffs the Code of Civil insured offer, and defendants promptly Plaintiffs compromise. accepted offer of with prejudice dismissal exchange the amount offered paid antecedent, traffic-collision action. B. Synopsis Proceedings Trial Court Of noted, here, who, were following year, already The as action, com- the antecedent traffic-collision complaining party plaintiffs defendants, menced the underlying litigation directly against pursuant Globe, of duties then Royal supra, alleging perceived 23 Cal.3d breach 790.03, (h) to be civil section subdivision imposed litigants by upon (unfair the com- Insurance Code settlement Defendants answered practices). with allegations, together with a denial of all the plaint general complaint’s of several affirmative allegation defenses. trial, later, awaiting

About a while the action was year underlying Court, Moradi-Shalal, noted, California handed Supreme down Moradi-Shalal, noted, Royal Cal.3d 287. also as earlier the court overruled however, (Moradi-Shalal, 304-305); Globe the deci supra, 46 Cal.3d ruled, made to cases impact regard sion’s court prospective. Royal then that a third could continue to maintain a Globe- pending, party’s the third type statutory action his tortfeasor’s insurer if had, (Id. Here, gone judgment. antecedent action because of Civil had chosen to settle their antecedent action Code by accepting (ante), section were barred applicable Procedure 998 offer statutory cause Moradi-Shalal from further their holding pursuing of 304-305; (46 Fireman’s Laxague action defendants. Cal.3d 456], review Fund Ins. Co. 220 Cal.App.3d den.) motion for

As a defendants at once to notice a consequence, proceeded on the Plaintiffs in turn noticed a motion for order judgment pleadings. granted, them file an amended the latter was to motion permitting complaint; Amended Dam- the former Plaintiffs’ for making Complaint moot. “First 1) (hereafter, for: styled was as one agеs” complaint) followed distress; 2) emo- of emotional infliction of intentional infliction distress; 3) under Civil 1714. duty tional and breach of Code section arising 1) to one the fact of the issued plaintiffs alleged: liability policy count defendants; 2) the with the April the insured collision insured on their resulting negligence causing personal from his and proximately 3) at all of injuries; liability consequences times insured’s clear; 4) was defendants were of plaintiffs’ collision aware reasonably 5) their of suffering hardship; of and their attendant financial injuries, 25, 1985, defendants refused to make an offer to settle September plaintiffs’ claim, instead to had insisting opposing plaintiffs experienced counsel defendants reasonable to believe injuries while had no basis preexisting yet true; 1986, defendants, 6) through statements were of finally April Procedure, made and section the Code of Civil pursuant the insured to 998 of $295,000; 7) offer statutory compromise plaintiffs amount offer; (before 8) making all times accepted again, defendants at clear; offer) 9) knew that the insured’s was reasonably settlement wage- medical and possession of 1985 defendants were of sufficient July offer; 10) at all times information enable them to make a settlement loss distress; 11) knew were suffering defendants severe emotional plaintiffs “outrageous defendants’ conduct to settle was and declining despicable,” causing and for the was “intentional and malicious” was done purpose distress; 12) con- mental and emotional and defendants’ anguish plaintiffs with intent disregard rights duct was done with a conscious and vex, fraud or injure or such as to constitute annoy plaintiffs, oppression, malice Civil Code section 3294. pursuant two, on to foregoing

In count and went incorporated all plaintiffs was 1) times the insured’s allege: defendants at all knew that clear, fair and rise to a effectuate reasonably giving prompt, settlement; 2) deep-rooted defendants knew that had a equitable plaintiffs injuries need their compensated emotional financial quickly insured; 3) their from the with the knew that arising collision defendants causing own refusal to effectuate a settlement severe prompt malicious 4) distress to defendants’ was intentional and plaintiffs; conduct distress; 5) causing anguish and done for mental purpose physical from the arising as third were entitled insurance benefits parties insured, care were owed negligence claim; 6) negligently, defendants plaintiffs’ defendants the settlement of of the information make a determination failed to carelessly recklessly claims; 7) forego- result of as a proximate to settle necessary plaintiffs’ trial; 8) to be shown in an amount conduct suffered ing plaintiffs in that defendants outrageous despicable conduct was foregoing clear; 9) suffered reasonably knew that the insured’s which years during of three distress over a lasting period and endurable incurred reason of losses acknowledge defendants failed to plaintiffs’ with the insured. collision three, allegations all of counts one

In count plaintiffs incorporated the context of a within variously and two and then went on to them repeat section within the of Civil Code claim made purportedly scope (a). subdivision denial general

Defendants’ answer the amended complaint posed Procedure, affirmative under of Civil four plus section 431.30 of Code defenses, facts con- that each of counts failed to state including plaintiffs’ stituting a cause of action. the pleadings.

Defendants then another motion for on pressed judgment time, did not to settle argued offering This defendants that their delay to the kind a cause outrageous necessary justify amount conduct Otherwise, defendants action for intentional infliction of emotional distress. further, settle; hеnce, they argued any owed no argued to state offering to settle did not the factual delay provide predicate law or section 1714 cause of action for under either the common negligence, of the Civil Code. motion, did not at which counsel

After a hearing defendants’ filed, appear, A was then granting motion was formal order granted. motion and This followed. entering judgment appeal for defendants.

Discussion three of error assignments their make pursuing appeal, plaintiffs a cause of “1. Can state appellants the form of they present questions. 2) Can appellants action for intentional infliction of emotional distress? [¶] 3) of emotional distress? state cause of action for infliction [¶] state a cause of action for violation Civil Code section Can appellants (Italics added.) parts each error turn assigned 1714?” We shall address I, II, meets the criteria for and III of this n of these three opinion; part 976(b) under rule of the California Rules of Court. publication

1. of Action for Intentional Plaintiffs a Cause Can State Distress?* Infliction of Emotional II. Negligent Infliction for a of Action Can Plaintiffs State Cause Distress? Emotional why undertake to demonstrate In of the we shall this part opinion, on for judgment in defendants’ motion granting the trial court was correct count, under In that plaintiffs proceeded to count two. pleadings infliction of negligent law of entitlement to theory common emotional distress.

A. Contention, “Sanctions” Nothing in Moradi-Shalal Contrary to Plaintiffs’ Emotional Distress Negligent Law Action Common Infliction brief, “specifically In contend that Moradi-Shalal their opening plaintiffs of emo- infliction law cause of action for sanctioned” common did such More thing. in That decision no tional distress third cases. Moradi-Shalal, brief, assert invoking in their particularly, opening that, a prompt, to effectuate has a claimants duty third-party “the insurer clear.” At this point, reasonably fair settlement when becomes Plain- of Moradi-Shalal. refers us to 307-308 pages brief plaintiffs’ opening Moradi-Shalal, supra, 46 Cal.3d In have misread the cited pages. tiffs Court, 304), (id. was con- Royal after Globe overruling Supreme pending applied would ruling fronted with the of how question Thus, with solely concerned the court beginning page cases. would be Royal permitted cases deciding pending Globe-type about a observation foregoing limited context that the It was proceed. concluded, issue, based On the court finally to settle was made. 711, 714 (1982) 128 Superior Cal.App.3d Ins. Co. v. Court Nationwide antecedent, cases, third 464], where the those pending continue could proceeded judgment, had party action final action, to settle cause of statutory regardless oftheir prosecution 287, 309-311.) (Moradi-Shalal, 46 Cal.3d context. Royal Globe footnote, ante, page *See 185. conclusion, the pro recited Moradi-Shalal reaching foregoing Royal in now overruled his dissent Justice Richardson

nouncements stated, thereto, “Confirm the court Moradi-Shalal Globe. With reference dissent, several Globe Royal his Richardson’s ing prediction Justice multiple rule in that case promotes have that the commentators observed two lawsuits encourages, indeed holding its litigation, contemplates, because insured, followed a by the against claimant: an initial suit by injured the As to settle. the insurer for bad faith refusal against [Citations.] second suit settlement encourage tend to unwarranted Royal may Globe corollary, claimants, seeking insurers by coerce inflated settlements demands by faith action. bad exposure the cost of a second lawsuit to avoid Thus, observed, is that of this decision author ‘One result one [Citations.] [¶] lawsuit, demand made an additional time a demand is now to settlе every now The demand be to coerce settlements. likely forthcoming higher immediate, that, will suit a separate carries the threat unless settlement will be ultimately The public filed for violation of the Unfair Practices Act. Moreover, the public the resources. judicial affected additional drain on a certain coverage, indeed insurance will suffer from costs of escalating Other litigation.’ result of inflated settlements and costly [Citation.] [f] Globe, direct that and its allowance of a action agree Royal commentators insurer, general in costs to the against may escalating result insurance fund set from insurers’ increased coerced public resulting expenditures tlements, As excessive awards and increased fees. jury attorney [Citations.] writer, stated one ‘The increased settlement costs to settle required actual involv litigation lawsuit and the one that hovers over most potential In ing higher premiums. insured defendant will result obviously addition, those settlement where they insurers that have the to refuse courage feel additional subject do not it is warranted will be the necessarily guessed correctly because will in all instances have litigation they Royal incorrectly, the value When have regarding guessed case. have Most authors Globe lawsuits them.’ encourages against [Citation.] [¶] Royal Globe holding noted another unfortunate of our consequence create a serious a direct third claimants: It tends to insurers owe party insurer, the interests of only protect conflict of interest for who must not insured, claims the adverse its but also must its own interests from safeguard of the third This conflict the settlement disrupts process claimant. Cal.3d (Moradi-Shalal, supra, 46 may disadvantage the insured. [Citations.]” parties directly 301-302.) countenance a law action third To common Justice evils which companies precise insurance would restore the deplored Richardson delineated and above. sum,

In itself language it is clear that the Moradi-Shalal nothing action, a cause of a contention that it sanctioned” supports “specifically facts, It did not. distress. infliction of emotional pleaded negligent “specifically their contention that Moradi-Shalal As another basis for resulting negligence purely sanctioned” a common law cause of action for distress, we referred to also what have above rely upon (Moradi-Shalal, supra, 46 as the at the outset. “reassuring language,” quoted 287, 304-305.) Cal.3d the “reassuring language” contention is that

Implicit (1) right conclusions that either: necessarily imports Moradi-Shalal before the infliction of emotional distress existed action based on decision, dixit, where a new of action right the decision created ipse deci- seriously proposition. none existed before. We doubt latter “Royal entitled, itself, of the opinion sion Court Supreme portion we hold nothing Overruled,” stated “. . . plainly, Globe Be Should civil or admin- herein additional Legislature creating would prevent remedies, course, cause of action istrative creation of including, private hold, however, Legis- We that thus far the violation of section 790.03. lature create cause of action.” private has not manifested an intent to (Moradi-Shalal, 305.) supra, 46 Cal.3d that, i.e.,

Otherwise, was language” just the thrust of “reassuring remedies Royal jurisdiction Globe did not foreclose overruling impose based “infliction of emotional distress.” on such traditional theories as (Moradi-Shalal, 305.) discussion of supra, 46 Cal.3d As observed our (ante), theory the traditional intentional infliction of emotional distress negligent alluded to the cited did not either intentional passage specify Thus, in we opinion, simply infliction of emotional distress. that part infliction emotionаl dis marshalled the authorities intentional involving A and reached on the basis of those authorities. tress rationalized result similar exercise is called for of the opinion. part words, In making other we interpret “reassuring language” remedies substantive statement. It recited assurances that whatever simply law, areas, remained existed at common within the matter subject listed Thus, here decisional task overruling Royal unaffected Globe. our among is to determine whether claim those belongs post-Molien those where recov- belongs among decisions where was allowed or recovery denied, ery was of Moradi-Shalal. regardless

B. Only Negligent Since 1980 Has Claims Recognized California Infliction Emotional Distress origin decisional task noted calls first for an into historical inquiry and what has of a claim for infliction of emotional distress

197 observes, claims, Witkin on such Commenting since its advent. happened (see law until the California liability, recently of tort this borderland “[i]n view that no 852) majority in accord with the infra, was § (6 Witkin is shown.” neither physical injury impact incurred where Torts, 851, 209.) His section 852 (9th 1988) p. of Cal. Law ed. Summary § statement, Foundation Molien v. Kaiser referred to includes the above “[i]n court, [(1980) 104 Allen v. Jones (1980) citing 27 ... Hosp. C.3d 916 927, 928), (27 445)], case C.3d (163 and a Hawaii Cal.Rptr. 207 Cal.App.3d (Id. the rule.” abrogated Law, of emotional group Witkin discusses Summary his of California identified, he on decided since Molien. In this has group,

distress cases allowed, hand, F. Marlene including the few cases where was recovery one Clinic 48 Cal.3d 583 Psychiatric Cal.Rptr. v. Medical [257 Affiliated 1064, and, 2 (Marlene F.) Burgess, supra, P.2d and Cal.4th 770 278] denied, other, including where larger recovery number of cases 189], Corp. (1988) v. Northrop Cal.App.3d Cal.Rptr. Anderson [250 Regents University Cal.App.3d Schwarz of California Torts, Witkin, Law, supra, (6 of Cal. Summary 470]. 853, 854, 213-217, 74-82.) In Anderson supp. pp. §§ Schwarz, cases, both failed because although pr&-Burgess plaintiffs yet (post). their “direct victims” inability being to establish for want of C. Molien, Since More Have Failed to Recover Than Have Succeeded division, In a recent case we had occasion to published by pass upon this despite a claim for emotional distress which the purely parents, medical were the manner yet absence of distressed over malpractice, doctor, which their child had been to them the defendant presented by 1398, (Bro, her 22 following supra, birth caesarean section. by Cal.App.4th cases, decision, 1401.) In the course of the we 26 analyzed post-Molien distress, determine if there were a claims for emotional presenting purely (Id. decidendi that there was not. among common ratio them. We discovered 1417.) at p.

However, did classification we find statistical confirmation for Witkin’s where recovery recovery of cases into those where was allowed those (Bro, In did recovery; was denied. our 26-case 9 allowed not. catalogue, results, we 1444.) these Reflecting emphasize Cal.App.4th claim that our decisional task here is to decide whether again where those belongs among belongs among those was allowed or recovery where recovery was denied.

D. Alleged Imposed Which a Have Not Facts Plaintiffs Duty Care on Defendants v. Christian Theory Duty Mistakenly Their Is Based on Rowland 1. In that their a cause of action for complaint states urging distress, Christian invoke Rowland v. infliction Cal.2d 443 P.2d 32 A.L.R.3d 496] (Rowland), from a mundane set of facts. case derived pre-Molien Plaintiff, injury to physical a social suffered apartment, invitee defendant’s to be of his hand while what turned out right using tendons nerves in favor Summary faucet handle a bathroom fixture. judgment defective by the defendant dweller was reversed Court Supreme apartment decision, which, Civil Code starting as a its invoked rationalizing point so, a civil code section . states section 1714. noted . . doing “[t]his 112.) (Id. then recited and not a law Rowland principle.” p. law common which has ever since. it is true that widely quoted “Although been language principle person have been made to the exceptions general some in the his failure exercise reasonable care injuries by liable for caused circumstances, statutory declaring it is clear that provision absence to the enunciated section 1714 an fundamental exception principle Code, made unless clearly supported Civil no should be exception (Id. public policy.” recite the consid- announcing

After Rowland principle, proceeded erations, noted, which should be into account to determine above taken matter, whether, public should be given policy instance as a exception Code section imposition made to otherwise Civil required Rowland, the therein recited met. their reliance on conditions be if depends describe as an actionable exists holding, duty it “whether the of the considerations for and upon judicial weighing policy these the then apply under circumstances.” Plaintiffs imposition liability reach their “that the owed the considerations to insurer policy position in claimants a care the of their case.” insured settlement duty [of] Rowland, The even foregoing accepting distorts and therefore misapplies here, in springs that it is relevant which we do The discussion Rowland not. (a) the Civil from that decision’s reliance on section subdivision here, pertinent provides “every responsible Code. As that statute one care or injury an want ordinary ... occasioned to another his added.) (Italics in management skill the of his . . . .” property person already were duty Rowland involved circumstances where both and breach present, which evaluation following light held to be an pursued exception seven to determine whether an policy considerations allowed. should be

At this that Rowland was juncture, we are out compelled point (and case. the relevance of Rowland personal injury To assess precedential facts, 1714) Civil determine Code section to the it is pleaded necessary Rowland's actual holding. Witkin, is the

According [holding ratio decidendi “[t]he case] decision, or rule which the and it is this principle ground constitutes rule which has the effect of a It is therefore principle precedent. necessary to read the language of of its facts and the issues opinion light raised, (a) to determine which necessary statements of law were decision, and (b) therefore were binding arguments precedents, observations, decision, i.e., dicta, and general to the with no unnecessary Witkin, (9 force precedents.” (3d 1985) Cal. Procedure ed. Appeal, § One of the cases cited Witkin this section of his volume dealing which illustrates the appeals Security described is National principle Pacific Bank v. 51 Cal.3d 991 800 P.2d 557] Wozab “1 (Security Pacific). That case involved. “It is incisively principle stated rule that the general of an must be construed with language opinion case, reference to the authority facts and the presented by positive ” 1003-1004, decision is (Id. coextensive with such . . .'" facts. added.) italics out,

As above had suffered a pointed plaintiff Rowland issue, personal (physical) injury. contested for which Rowland fashioned the seven considerations with regard to the of Civil Code section application 1714, was whether should be on the personal injury imposed defendant dweller and in Justice apartment favor of the invitee. dissent, decisis, Burke’s as a matter of stare came down on the side continuing to and hence exempt apartment liability. dweller from Thus, the ratio decidendi in Rowland was that cases of personal (physical) injury, of care will extended to expressed section 1714 of real occupiers judicial vis-á-vis their invitees. As a matter property of precedent, absolutely nothing negligent Rowland had to do with the infliction words, emotional distress. In only other because its can holding of facts, coexistensive with its Rowland to the issue before us. is inapposite 991, (Security Pacific, 1004.) 51 much in Cal.3d Plaintiffs concede as that, an interesting their when recited opening presents brief “Rowland and recov- wherein common law licensee restrictions on example, trespasser of land ery possessors abrogated.” [were] in Thing, view of is confirmed a footnote Rowland foregoing 644, here, the supra, As relevant (post) Cal.3d discussed another point. recites, footnote “. . . that v. Christian should extend Rowland [citation] for in our actions of emotional distress lacks support infliction nor cases decisions. Neither Rowland v. Christian the other cited University [Thing] [including Regents dissent California Tarasoff of 14, 334, 1166), (131 551 P.2d 83 A.L.R.3d Cal.Rptr. Cal.3d 468, General, (123 RKO Weirum v. Inc. Cal.3d 799 36)] for inflicted emotional 539 P.2d are cases which negligently no injury distress were in this when other Recovery type damage, issue. never been to the of foresee- present, only principles has subject general (48 . .” fn. ability applied Rowland v. Christian . . Cal.3d Based there is Rowland to foregoing analysis, nothing support upon that it is of care to avoid imposing duty position authority in the course of inflicting emotional distress on unintentionally of their negotiating settlement third claim. Rowland, includes reliance Civil

By (supra) whose invoking holding upon logically Code cannot rationalize their position section without a plaintiffs experi- Such is that what key assumption. assumption enced here that is “injury.” was an We respectfully suggest precisely issue we are called to decide. upon that, have part,

We noted section already pertinent (a), subdivision of the Civil that one provides “[e]very responsible Code an skill ordinary ... occasioned another his want of care or injury statutory in the his This . . . .” concise management property person mandate of of both and breach. The pronouncement imports concept duty one’s management is to act with care and skill ordinary ordinary Breach when a want that occurs property person. i.e., management injury. liability, care The result is causes “responsibility.”

Thus, if can it first consideration of seven Rowland factors occur We be determined that there is it has been breached. duty present about, that is is all not a Rowland evalua- again insist what this case determined, already tion to determine if an shall be liability, exception allowed. Seeking Duty, Foreseeability 2. ‍​‌‌‌‌‌‌​​​‌‌​​​​​‌‌‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌​‌​​‌‌‌‍In the Presence Is Not a Useful

Guideline in Cases Based on Emotional Distress Negligent Infliction of cases, trauma) In personal back to injury (physical foreseeability, going 99, Palsgraf v. Island R. Long Co. 248 N.Y. 339 N.E. 59 A.L.R. 1253], However, has in long key been factor when the claim fixing duty. distress, purely for emotional it is our view that is essen foreseeability cases, Moreover, tially useless. Emotional distress is always foreseeable. decided since Molien introduced the notion of a claim for compensable distress, in purely show that more instances than not claims (Bro, advanced on this theory 1444.) fail. Such Cal.App.4th results therefore provide basis for a deductive that foresee conclusion noted, because in ability, always as little present, use search for search, in purely emotional distress cases. If it were in use any every Bro, post-Molien suitor would have recovered. As did shown not. This deduction of the nature useless this kind foreseeability of case is reflected decided In authority. Thing, supra, 48 Cal.3d a post- Dillon, case, bystander Justice Eagleson took occasion clarify right wrote, recover for negligent infliction of emotional distress. He Dillon “[t]he confirms, observed, experience as one commentator that ‘[f]oreseeability proves too much. . . . it Although may set tolerable limits for most types harm, physical provides it virtually no limit nonphysical ” (Id. that, harm.'’ p. added.) italics He then stated is apparent “[i]t that reliance on foreseeability injury alone finding duty, thus recover, right is not when the are adequate sought intangible (Id. at injury.” 664.) p. our earlier observation that not Confirming stated, claim every for purely emotional Thing distress is then compensable, “In order to avoid limitless out of all degree to the of a proportion defendant’s negligence, and it is to insure without impossible imposing unacceptable costs on those whom the risk is among spread, right to recover for negligently caused emotional distress must be limited.” (Id. view of the we cannot foregoing, resist recalling Witkin is oft wont to in the lyricize, course of his many storied public orations, “on a clear day some courts can foresee forever.” cases, repudiation Thing of emotional distress foreseeability matter, practical was echoed three years Burgess. later in In its discussion of Molien, Burgess observed that great of this criticism weight “[t]he [of has centered upon perception Molien] introduced a new method [it] for determining the existence of a limited duty, by the concept foreseeability. To extent that Molien . . . stands for this proposition, should not be relied and its discussion of is limited upon to its facts. As of the alone is not Thing, foreseeability injury in ‘it is clear that recognized for on the of action meaningful scope a useful or a restriction “guideline” [an (Burgess, inflicted emotional damages negligently for distress]’ [citation.].” 1064, 1074.) of it is obvious that supra, foregoing, Cal.4th view the a of care duty more than must be raise something foreseeability present emotional distress cases based negligence. on

3. Depends Policy Public Factors Duty Finally The Presence of has since historically We have recounted that it been already only decided, in favor that for distress purely when Molien claims emotional Molien, have been of have been Since there nonbystanders recognized. these, 11 Of under Molien theory. least recover attempts rea did policy failed because not articulate persuasive pubic (Bro, supra, of defendants. sons a care was owed why duty respective 1398, 1444.) 22 Cal.App.4th here a for recovering damages

Plaintiffs that new urge predicate contend a infliction emotional be recognized. They of distress or her liability of care is owed a third claimant his tortfeasor’s duty claim. insurance carrier of the third No negotiating party’s settlement state, has and we come to the duty proposition been so yet recognized that it is incumbent to articulate as a why, legal proposition, upon defendants, who a care them acted common law was owed Hester’s liability insurance carrier. Actually,

That have way is the common law tort theories evolved. was, initial of a cause of action based on recognition negligence pure i.e., law, created the court a decision of common simple, policy care to where none had existed. strangers before purely Cal .2d introduced Legg,

When Dillon cases, Justice Tobriner did distress in bystander so-called injury Dillon had suffered an make the at the outset that Mrs. assumption decide whether trying and then Rowland-like go through litany he an recited contrary, On the injury excepted. for the should recognized. care should be elaborate reasons array policy why duty “ conclusion, stated, statement of As to he is a shorthand duty, [duty] ‘[i]t recоgnized . it should be rather an aid to itself. . . But analysis than itself, sum total expression not sacrosanct but “duty” is particular lead that the say those the law policy considerations ” Prosser, (Id. Law is entitled to protection.’ quoting 332-333.) (3d 1964) pp. ed. Torts in when he Mosk a Molien extended employed

Justice similar technique He realized full well the Dillon beachhead to emotional distress cases. purely he that that an extension of the an issue when stated duty concept rule thus reach the crucial whether adherence to venerable question “[w]e that in is requiring recovery would bar this case physical impact] [of (Molien, 927.) warranted.” Cal.3d He then went on explain 27 to so, California In why doing should not adhere to the “venerable rule.” upon Justice Mosk relied Justice his concurring observation Gardner in our opinion (1980) decision Allen v. Jones 104 Cal.App.3d [163 case, (a case) mortuary and a Hawaii State Cal.Rptr. Rodrigues 445] v. Molien, wrote, (1970) 52 Hawaii P.2d In Justice Mosk “. . . [472 509]. the Rodrigues court further noted stimuli’ that ‘multiplication psychic faces, and society presently ‘increasing widespread knowledge effect debilitating mental distress may have an individual’s to capacity on the carry (Ibid.) functions of life.’ the court that Accordingly, recognized ‘the interest freedom infliction of serious mental distress is hold, therefore, entitled independent legal protection. We that there is a to refrain from the negligent infliction serious mental distress.’ (Ibid.)" (27 928.) Cal.3d p.

We can ask no less of plaintiffs here. We repeat, enough then, assume a care duty of and to assume a such breach based on to invoke the assumptions, Rowland considerations of whether liability Rather, noted, should be excepted. it is incumbent on plaintiffs, to come forward with reasons a policy why of care their favor should be recognized by common law. This have failed do. they Plaintiffs’ statement of their position that count states two a cause action for negligent infliction of emotional distress circular at best. They first (Under contend that are “direct victims” under Burgess Molien. definition, post, they victims.) were not direct then to the They jump ahead conclusion that can “one see all the elements of the itself tort are present care; . . (1) . legal duty (2) to use due (3) a breach of legal duty; or damage injury; and the breach as the proximate legal cause cause of Witkin, the resulting damage injury.” They then cite to Summary (8th California Law 1974) ed. section and to page 2749 Jarchow Transamerica Title Ins. Co. 48 Cal.App.3d Cal.Rptr. 938 [122 The citation to Witkin do with nothing 470]. has actions for negligent Jarchow purporting distress. language infliction of emotional distress infliction of emotional law action for negligent a common sanction it had issued a policy to whom by person title insurance company (1986) 184 Globe Ins. Co. Royal Soto v. disapproved was expressly said, we “. . . (Soto). we regard, Cal.App.3d 192] of the Jarchow opinion therefore overrule expressly portion emo- action for recognize recovery a cause of purports (Id. at . . .” on garden-variety negligence concepts. tional distress based imposed of care should be why duty In their failure to articulate reasons defendants, defendants had a contract what overlook is that contract, Hester, that Under indemnity plaintiffs. with their insured not entered for any judgment was to Hester only duty indemnify defendants’ collision, had him After the negligence. on account of his against insurers; only against had claim claim defendant against no insured, reason or legal With the in this there was no parties posture, Hester. do with ever to have to anything for the insurance carrier requirement words, defendants, within their acting third claimants. other party traffic- have back and allowed the antecedent could stood legal rights, judgment case havе gone to take its course. Should that collision action Hester, indemnify then have been required defendants would against under the contract. Hester insurance

However, when, here, are an insurer by third claims settled party before does not judgment, depend upon is that such settlement reality gamble probably from the educated that settle but derives insurer’s to go its insured to allowing to settle than to risk the case cheaper exceed if the judgment likely policy trial and judgment, especially Bureau (See limits. Johansen v. State Auto. Assn. Inter-Ins. California 9, 17, 744].) In light fn. 7 538 P.2d Cal.3d with the view of this case is out of touch foregoing, plaintiffs’ wholly in the first place. rise to contracts of insurance goals give economic indemnity financial Insurance exist to a critical companies provide for insureds, third party risks their not to salve the feelings displeased matter, in the emotional actuarial there to factor way claimants. As an is no to be premiums distress of third claimants trying compute Thus, it is faced holders. charged for risks insured policy Moradi-Shalal Royal conclude that the Globe by reasonable to overruling to, market reinforce the realities of the insurance place, served to casualty them. change

E. Precedent, They Under Have Failed Were Current to Demonstrate Plaintiffs Duty Owed a Care Defendants Bro, In the course our we opinion precedential history reported “to recover for emotional distress in damages purely nonbystander cases, it is (Bro, supra, first a direct victim.” necessary Cal.App.4th 1398, 1407.) This statement was followed an into where the inquiry “direct-victim” came concept from. cases,

That proceeded several inquiry through culminating analysis (Bro, Burgess. 1414-1416.) Such Cal.App.4th analysis included court, noted, commentary our . the Burgess pointedly “. . as earlier discounted foreseeability [original for meaningless guideline as a italics] 1074), kind measuring duty (Burgess, of case supra, Cal.4th and then concluded nevertheless that ‘. . . other derived principles Molien ... are sound: damages inflicted negligently distress be recovered may absence of physical injury impact, (2) a cause of action to recover inflicted emotional negligently lie, will distress the criteria notwithstanding imposed by upon recovery in bystanders, cases a duty arising where is preexisting relationship 1074, added, negligently (Id. breached.’ at p. F.) italics Marlene In citing sum, Burgess reaffirmed the Molien seminal pronouncement by that actions direct victims of inflicted emotional are negligently (Burgess, distress viable. 1064, supra, 1074.)” (Id. Cal.4th in italics original.) F., In Burgess, there is certain cited language from Marlene postulating that a direct victim may anyone be to whom the defendant owed a duty “ care because such duty was ‘assumed the defendant imposed on the law, defendant as a matter of or . . . out a relationship between [arose] ” (Burgess, 1064, 1073, F., the two.’ supra, Cal.4th quoting from Marlene supra, 48 Cal.3d As a if result it that language, argued be there are three in in ways which of care can a third duty arise favor of claimant his or her reject tortfeasor’s insurance we company, argument.

In Marlene F. the was in relationship Burgess, patient psychotherapist; Thus, it was patient and obstetrician. which talked about a language by law or imposed assumed a defendant was unnecessary to decision. such, As that language was dicta. We note again Security rule which in was our earlier applied Pacific discussion of Rowland. That rule stated that the plainly hold “ ‘ of a

ing decision “must be construed with reference to the facts presented case, decision is coextensive and the of a positive authority 1003-1004, 51 Cal.3d italics (Security Pacific, supra, such facts.”’” in added.) Burgess In we references any of this light proposition, repeat alternatives, charac- beyond preexisting relationship, or Marlene F. to for claiming damages of a of care to one terizing origin Burgess The decidendi of is distress were dicta. ratio infliction of emotional inflicted emo- negligently “. . . language, damages contained injury impact, recovered in the absence of may physical tional distress inflicted negligently a cause of action to recover lie, recov- upon will the criteria notwithstanding imposed emotional distress relation- where from a duty arising preexisting cases ery by bystanders, fact, this later is [Citing [sic] breached. ship negligently cases.] That label signifies which defines the ‘direct victim.’ phrase principle 1064, 1074.) language Cal.4th It is this (Burgess, more.” nothing hence Burgess represents with the actual facts is “coextensive” (See Pacific, supra, 51 Cal.3d Security of that case. holding precedential 991, 1004.) demonstrated, Burgess, as it holding above the only precedential

As victim, is that one must have had a related to the definition of a direct with the defendant order to have a relationship protected preexisting distress. There interest in free from caused emotional being unintentionally relationship parties only relationship was no such between here. such, them, if the result of this ever between it can be called developed could never be initiated As a litigation, by plaintiffs. consequence, plaintiffs or become direct victims of defendants’ unintentional behavior. case, noted, sounding negligence,

As earlier there no California Molien, where a has recovered on a claim for including person purely (See direct victim. emotional distress unless he or she first as a qualified Bro, 1398, 1444.) were never direct supra, Because Cal.App.4th plaintiffs victims, Thus, they were never owed a of care. are duty precluded just their distress claim pursuing negligence, emotional based in 11 the post-Molien who were found not to be direct victims plaintiffs, cases, 1398, 1418, Bro, (See were Cal.App.4th so precluded. in holdings we hark that the true

Parenthetically, back to our observation F., both were Burgess duty, Marlene with reference to the predicate that the in each relationships of those cases arose from duty preexisting further, Here, obstetrician and we observe psychotherapist, respectively. even if it that the cases could be holdings enlarged be of those two accepted “ to recite that can where the defendant or duty ‘assumed present ” imposed (Burgess, supra, on the defendant as a matter of law . . 1064, 1073), Cal.4th that would a plaintiffs’ plead not save effort cause of action for the infliction of emotional distress.

First, did defendants not assume of care to More any duty plaintiffs. even if the law important, ready duty stands a of care on impose here, so, defendants the law why before does must show should a underlie impose duty. Actually, legal terms of the these dynamics cases, where is a there of the preexisting relationship, posture because of parties, “imposes” law a care. There can imposition be no vacuum; noted, in a there has to be a have reason for it. As we already have failed to articulate a why impose duty reason law should care on defendants settlement of third negotiating plaintiffs’ claim.

Beyond no-direct-victim rationale above are con- explained, plaintiffs fronted with decided cases where third their parties have failed efforts to recover from their tortfeasor’s insurance for negligent company infliction of emotional distress.

Soto, earlier referred to was a case on similar decided briefly, facts case, division favor defendant insurance company. employee and family his an action brought employer’s his workers’ carrier, compensation alleging both intentional and negligent infliction of The distress. grievance delay arose from award, carrier’s payment of workers’ compensation delay after occurring the carrier had to the stipulated award the course of a Workers’ Compen- sation Appeals (WCAB) Board proceeding. later included complaint counts based on alleged violation of those Insurance provisions Code defin- ing unfair settlement practices, as well as on breach of the alleged implied covenant of faith good and fair Of dealing. more interest us here was the count for negligent infliction of emotional distress alleged family members. The trial court sustained the insurance carrier’s demurrer to all defendant

counts without leave to amend. On we appeal, affirmed judgment of dismissal.

In reached, the rationalizing result we we that the alleged noted willful delay payment did not provide with viable claim plaintiff employee based on a supposed exception to the rule exclusive remedy specified section 3602 of the Labor Code such as was recognized by Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 498 P.2d Cal.Rptr. [102 As to members, 1063]. the claim of the family who were foreseeably victims,” distressed, held, “direct we were not they because understandably infliction of recovery were from they precluded (Soto, 432.) supra, 184 Cal.App.420, distress. review, here under all fours” with the facts

While Soto is not “on precisely being parties, removed from third step members are one family because In analogous precedent. an enough provide arguably their is close posture Soto, ruled out because third claimant was party (employee) the count of the (under Code) The trial court also the exclusive the Labor rule. remedy the workers’ against compen- ruled the count of his members against family of the by Their emotional distress arose reason sation insurance carrier. We see no award the carrier had to. stipulated of the delay payment Soto employee difference between the aggravation experienced members, like the family. family his More experienced important, with the insurance could not to a point preexisting relationship employee, Thus, direct victims. For being likewise were company. precluded reason, contention that adverse to persuasive authority plaintiffs’ Soto claim. care in their third negotiating party defendants owed them a In Lee Companies Cal.App.3d v. Travelers (Lee), their claim legal malpractice after the had settled 468] $800,000, against filed suit they (plaintiffs) the insureds for here, insurers had defendant insurers as did that the alleging, in unfair settlement as defined section 790.03 engaged practices thereof, insurers’ initial Insurance Code. As to the examples they pointed $51,500 had been well offer of and to the fact that the insureds’ (Id. settled. finally known to the insurers for before the claim was years five 693-694.) defendants’ demurrer After the trial court sustained the amend, order of without leave the case was dismissed. On appeal, (Id. 696.) dismissal was affirmed. at p. reached,

In first the result it the Lee court observed rationalizing had while the Moradi-Shalal come down from the Court Supreme appeal (Lee, 694.) With reference to count pending. supra, 205 Cal.App.3d observed, Code, under the then because of the pleaded Insurance court settlement agreed termination of third action means of judicial determina- liability remained there had not been disputed, result, Royal tion of the held Globe- insureds’ As a Lee liability. (Id. count did type not survive Moradi-Shalal. here, Lee, count, included Royal besides a Globe the complaint, infliction of emo-

common law counts for both intentional and negligent court, 691, 693.) tional (Lee, supra, reviewing distress. 205 Cal.App.3d (ante), as have we the claim intentional infliction of emo- discounted distress, tional distress. On count for infliction of emotional negligent here, said, on based facts far more than before us court egregious those count s infliction of emotional distress is likewise “[p]laintiff The ‘necessarily barred. maintain such an is . . . right predicated action (Lee, on existence care and duty its breach. . . .’ [Citation.]” short, 695.) In duty Lee court held that Cal.App.3d no third care was owed a claimant his or her party tortfeasor’s insurance carrier in the third negotiating settlement of claim.

F. Have State Negligent Failed to a Cause Action Plaintiffs Emotional Distress

Infliction of nutshell, In a their theory have it in duty, they argued briefs, amounts to this: “Defendants us the conduct of the upset settlement negotiations. Because could defendants foresee that what were they doing us, upset would were they under to avoid so.” have duty As we doing discounted, explained, foreseeability because must such a theory be decided, i.e., circular and assumes the whether key question the facts pleaded import duty of care devolving defendants. upon is that reality plaintiffs are seeking to us persuade recognize duty of care here where none recognized. has before been persuasive, To be reasons, reasons, incumbent upon to come up including with policy this new why area of should be they This have failed to recognized. connection, do. In this plaintiffs’ reliance on Rowland is wholly misplaced. Rowland, context, duty breach were established a personal injury significance of the decision a weighing involved of policy consider- Thus, ations to determine whether liability excepted. should be although invitees, Rowland expanded to their householders its significant considerations, holding, based policy on dealt proximate cause. era, important, More this post-Molien a new has emerged factor on scene which can be determinative emotional distress cases based negligence. This factor is the of a direct victim. Plaintiffs were not concept direct victims here had because with defend- they preexisting relationship no victims, ants. Because could not as direct of care ever qualify no arose their favor.

Finally, Soto and Lee held had against their who respective plaintiffs Thus, ventured same upon the gambit which have both here. based 210 we precedent, well as upon persuasive “direct victim” analysis,

upon cause of action have failed to plead that plaintiffs hold emotional distress. infliction of

III. Theory That of Action on a Cause Can Plaintiffs State 1714?* Civil Code Section Defendants “Violated” IV.

Conclusion assignments that all three we hold foregoing analysis, Based upon defendants’ we hold that merit. More (ante) specifically, error are without function of a “performs pleadings, motion for on judgment .” on . . appeal. treated in the same fashion demurrer and is to be general 33, 37, Cal.Rptr. fn. (Board v. Davis Cal.3d Regents [120 1047]), was granted. 533 P.2d properly theories, action, on several

Finally, proceeding because defendants’ arising emotional distress solely predicated purely claim, therefor, there a third party to settle offering and the reasons delay, state a cause amend their complaint could ever was no prospect noted, though even the trial court’s above Accordingly, ruling of action. amend, (See discretion. was not an abuse of did opportunity not afford (1972) Cal.3d Francisco City County San Harman circumstance, 1248], present not which describes 496 P.2d discretion.) here, amend is an abuse of where a chance to affording

Disposition is affirmed. judgment J.,P. concurred. Dabney, Acting footnote, ante, page

*See 185.

TIMLIN, I respectfully dissent. J.

I

Introduction In my on: opinion, including its is based majority opinion, disposition, (A) the that: faulty premises factual

(1) plaintiffs admitted delay settling that defendant’s “was not problem”

(2) nothing defendants did allegedly amounts to “affirmative miscon- duct”; and law,

(B) defendants, the equally faulty legal a matter premises that cannot be liable to plaintiffs because:

(1) tort based on intentional infliction emotional distress (IIED) and its element of whether outrageous depends conduct on there a “special relationship,” “preexisting, contractual relationship,” “pre- or a existing relationship” between defendants and and no such rela- plaintiffs, here; existed tionship

(2) tort (NIED) infliction emotional distress victims”; cannot exist unless plaintiffs were “direct cannot be plaintiffs ante, “direct victims” unless had “preexisting relationship” (maj. opn., 190, 205, 206) at pp. or a “preexisting, relationship” (maj. consensual opn. 62, defendants; added) p. italics with plaintiffs here had no such defendants; relationship

(3) “pure” emotional distress does (e.g., not constitute a personal injury ante, 190, maj. opn., 200) at pp. here plaintiffs suffered only “pure” distress; (4) allowing plaintiffs’ recovery of emotional distress based on common law IIED tortious NIED “would restore precise evils” referred into Moradi-Shalal Companies (1988) v. Fireman’s Fund Ins. 287, Cal.3d 304-305 P.2d (Moradi-Shalal) (maj. [250 58] ante, opn., at p. deleted); italics

(5) because there is no judicial recovery of emotional precedent distress damages by third party claimants from tortfeasor’s insurer based conduct, facts to sufficient cannot state plaintiffs the insurer’s tortious (e.g., maj. defendants IIED NIED of action for a cause allege ante, 209); at opn., (1992) Cal.4th 1064 Superior Court Burgess the holding as third (Burgess) 831 P.2d precludes

Cal.Rptr.2d 1197] tortfea from their for emotional distress recovering damages claimants from claim, tortious conduct because insurer for the insurer’s own sor’s “nonadjunct”; in Burgess, unlike the claim of the of a (7) present first establish both the existence it is burden plaintiffs’ why reasons policy that and then to duty, present public and a breach of for their liability not exempted general defendants should conduct, present public policy rather than it defendants’ burden to being of general defendants from the application reasons to justify excepting all, law, including applicable which are principles of tort principles meet that burden have failed to Plaintiffs companies. purportedly insurance 202-204, 206-207, ante, 209); and (maj. pp. opn., in determining factor (8) as a foreseeability “essentially useless” in emotional distress to a “purely whether a defendant owes a 1398, cases,” 1401- (1994) in v. Glaser Cal.App.4th based on dicta Bro v. La (hereafter Bro), Burgess, Thing and Cal.Rptr.2d [27 894] (Thing). P.2d (1989) Cal.3d 644 814] Chusa ante, 201-202.) (Maj. opn., in I most majority’s areas which believe the

Having now outlined those exist, in I them and will discuss statements mischaracterizations misleading more detail. Majority Opinion Is Faulty Upon

A. The Factual Premises Which Based that the approximately contends that “admitted” majority plaintiffs in not a and contends “[Re- settlement was

three-year delay1 problem, in their alleged have facts of the on gardless spin put [the affirma- which amounts to there is complaint], nothing finally alleged are position tive misconduct.” Both these characterizations of plaintiffs’ incorrect. Settling Delay That in 1. The Did Not Admit Defendant’s Plaintiffs

Was Problem Not a clearly shows A fair of the first amended reading complaint (complaint) (1) delayed defendants that the claim is that gravamen plaintiffs’ two-year delay. was a majority erroneously 1The states that it (2) to settle for almost three making any years; claim attempts plaintiffs’ defendants’ and faith settlement delay engage good negotiations refusal to were their part based use false statements to knowingly concerning their insured’s and con- liability plaintiffs’ supposed preexisting ditions; defendants’ motive this affirmative conduct engaging was their desire to the use their funds for as and to keep long possible, use the economic losses emotional distress experienced by plaintiffs underlying delay because vehicular accident and the settlement obtain as a settlement advantageous for themselves as possible. in their that:

Specifically, plaintiffs alleged complaint defendants, knowledge admitted did not their insured had he car, them, see did apply his rear-ending brakes before accident, nonetheless denied and concealed his for the when clear; knew that reasonably (2) defendants offer, asserted any make settlement instead but refused

that despite the when made had that plaintiffs preexisting injuries, fact assertions, true, they had no believing reasonable basis them to be and, fact, in false; knew them to be (3) defendants knew that plaintiffs suffered severe emotional distress as a result of the fact that defendant for over settle years three refused plaintiffs’ claims where was clear liability reasonably and no other legiti- mate reason existed for settling; accident, almost three after years the and some nine years two and

months after being that apprised plaintiffs were from severe finan- suffering accident, cial hardship proximately by caused the and plaintiffs that were on verge evicted being from their home because hard- financial ship, and with no additional regarding plain- liability either information alleged preexisting injuries, defendants sent plaintiffs statutory offer tiffs’ to compromise, pursuant Code ‍​‌‌‌‌‌‌​​​‌‌​​​​​‌‌‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌​‌​​‌‌‌‍of Civil Procedure section in the sum $295,000, which plaintiffs accepted; and insured, “actively undertook to deny defendants their and to deny that had plaintiffs loss wage and medical expenses suffered incurred, injuries that they had thereby, stonewalling plaintiffs attempt in an retain, long possible, as benefit, own payable for defendants’ benefits plaintiffs] under their insured’s policy.”

Thus, as is cogently from plaintiffs’ obvious defendants’ complaint, pro- tracted delay even to settle claim attempting plaintiffs’ integral forms an The against plaintiffs. committed defendants alleged wrong

part it, conduct, was characterization to the contrary majority’s wrongful statements, which state- false delay accompanied composed protracted are, essence, evidence of the motive behind circumstantial ments i.e., insured was not not because the the reason for the was delay delay, conditions, liable, defend- but that had preexisting clearly coffers, and wished its own wished to the insurer’s funds keep ants simply until stonewalling settlement advantageous possible to extract most distress, and thus more were in serious financial and emotional amount. a lesser likely accept

Thus, to the simply are not limited toto complaint’s allegations claims, defend- encompass but settling plaintiffs’ defendants’ delay with plaintiffs in not to settle refusal and protracted delay attempting ants’ for such delay. and ulterior wrongful purposes and their reasons Engaged That Allege Showing Did Facts 2. Defendants Plaintiffs Misconduct Affirmative constitutes nothing alleged by plaintiffs contention that majority’s allega- incorrect. The plaintiffs’ misconduct” is also patently “affirmative as their denial of as well liability, of defendants’ denial of insured’s tions loss, withholding defendants’ concealment injuries wage information, their refusal to support their false statements knowingly settlement, years offer for and their refusal to make a settlement attempt clear, active conscious constitute reasonably after their insurеd’s conduct defendants.2 defendants for that the reasons given by

The also concludes majority is regard fatally The conclusion majority’s are irrelevant. delay flawed; show that motive sometimes may it is an established legal principle not, fence as a nuisance private whether an act was tortious or a e.g., spite Witkin, of Cal. Law (5 Summary a and lawsuit as malicious prosecution. Torts, be (9th 1988) may False reasons for one’s conduct ed. § ulterior, (See, motivation. evidence and illicit unspoken circumstantial 39].) People v. Osslo P.2d 50 Cal.2d e.g., assertions The do not constitute allegations simply solely complaint’s defendants, inaction by acts of omission or unintentional lapses tortious attempted to inapplicable comment that “Plaintiffs majority cryptic 2The also makes a and However, to be fraud. advancing allegedly of this false reason characterize defendants’ is pleading nowhere complaint, necessary allegation injurious their reliance fraud be found.” They pled fraud defendants. attempt plead Plaintiffs did not a cause of action for Injurious distress. of emotional negligent causes of action for intentional and infliction of action. of such causes necessary reliance on false statements is not element state tortious acts and refusal defendants for delay but intentional reasons and wrongful purposes. specific Opinion Which Is Faulty Legal Upon Majority

B. Premises Based Preexisting

1. There Be Requirement There Is No That Consensual Relationship Time Between at the Defendants Defendants Plaintiffs Engaged Alleged in the Tortious as IIED Order That Conduct May Conduct Be to Be Outrageous, Considered Defendants’ Requirement 2. There Preexisting Is No That There Be a Consensual Relationship Time Between at the Defendents Plaintiffs Defendants Engaged Alleged in the Tortious Order Conduct NIED in for Plaintiffs to Be the “Direct Victims” Tortious Conduct of Defendants’ A major legal of the both the IIED and premise majority opinion as to NIED causes of action is that here no facts plaintiffs alleged showing between “preexisting relationship” and defendants. As to the NIED action, this lack of alleged facts converted by majority’s reliance on Bro and Burgess into its conclusion therefore have failed to assert sufficient facts show that were the “direct victims” of acts any and, therefore, by defendants defendants owed no duty plaintiffs. Conse- barred quently, plaintiffs are from recovering tort from defendants (See, ante, for NIED. e.g., maj. 204-209.) opn., action, As to the IIED seizes on Bro’s majority newly-concocted-out- Bro, of-whole-cloth concept consensual “preexisting relationship,” which case, an NIED purported Burgess. (Bro, extract from Cal.App.4th 1398, 1416: can fairly Burgess from the hypothesized pronounce “[I]t ments that the threshold first question or of our recommended prong test if ask there been a has preexisting, consensual between the relationship not, emotionally distressed and the offending defendant. If allegedly plaintiff is class of Molien and persons Burgess whom perceive as having protected free being interest inflic tion of added.]) emotional distress.” The majority has become so [Italics enamored with Bro’s self-created concept of consensual rela “preexisting here, that it feels tionship” IIED compelled to to action apply plaintiffs’ with no logical as to explanation why this is or should be concept applicable an to intentional tort.3 action,

Although the in its IIED majority, discussion of does not refer the classification of “direct victims” as that is used in phrase its 3As further in the discussed text of dissenting opinion, “preexisting relationship” this the has idea been developed Supreme the analytic independent Court one of three factors to action, it add “preexisting existеnce of a viable NIED does analysis the analytic determining as a factor controlling contractual relationship” conduct, an IIED action. which is an element of outrageous existence of action, IIED of a allegation “preex to the an According majority, kind of the had the plaintiff to establish that necessary isting relationship” that the defendant’s would lead a court to conclude which “expectation” held “the same here “outrageous,” majority having the behavior where there is outrageous privity defendants can be behavior by respective where there is none.” and not Further, IIED must action a majority, plaintiff according to the based duty plaintiff, that the defendant breached a owed establish relationship or “preexisting” its conclusion that the existence of a “special” omitted and italics (Italics linked element of breach. original to the duty inflicting refrain from intentionally added: “whereas was decisive relationship transcended the special relationship, distress sum, not require law in the first instance does breach“In while the finding a stating as a precondition a between preexisting relationship parties distress, a there are action for intentional infliction of emotional cause of cases, Co. Western National Ins. Fletcher group [v. Life (89 286), hereafter 47 A.L.R.3d Cal.App.3d Cal.Rptr. Fletcher] (136 Stuyvesant and Little Ins. Co. 67 Cal.App.3d [v. Life illustrative, to refrain from 653)] are where a breach finding a primarily emotional distress derives intentionally inflicting from fact of preexisting, (special) relationship.” contractual action, IIED that as to an Although majority great takes to state pains a to be right a need not a establish plaintiff allege preexisting relationship emotional distress bad determine if a defendant in a cause of action for infliction of tort, defendant’s as a action for an intentional to the direct victim. In an right “relationship”—a as the plaintiff’s legally protected intentional invasion of the serves tort, committed relationship, battery by stranger despite any preexisting is still a the lack of otherwise, consensual or between batterer and victim. 4Actually, making “preexisting the fact that it is majority has tried to obscure sufficiently alleged relationship” outrageous the dominant test as to whether conduct has been that there is no point, emphasize in a cause of action for At one it states that “we IIED. parties precondition as a requirement special preexisting relationship between the stating theory." a cause action on this However, infliction an actionable claim for intentional it then states that the “touchstone of . then makes outrageous defendant’s conduct. . .” It of emotional distress is the nature that, relationship” with a defendant “preexisting it clear do not have a because who expectations” is not expectations,” “disappoints” have “lesser conduct which such “lesser majority’s pronounce- is the “outrageous.” intelligible position The most articulation of this had the ment that “The there Little and [first [in Fletcher] claimants] and, Here, relationship understandable without expectations insureds. there was no behavior which arises presence relationship, plaintiffs’ of such do not disclose allegations (Italics added.) outrage the level of to necessary impose . . . .” liability duty by free of conduct a defendant a correlative outrageous (implying conduct), that such be engage defendant not to such its requirement to refrain alleged duty actually to establish breach of such limits i.e., who had a conduct to a certain class of those outrageous persons, preexisting relationship plaintiffs. interchangeable its of the my opinion, mаjority, by application consensual rela-

concepts preexisting special relationship preexisting contractual elements of a tionship preexisting relationship to certain tort NIED, IIED, and action for to certain elements of a tort action for effect blurred, eliminated, has if The majority not such causes of action. separate damages” would caused require person claiming “purely distress (1) NIED he by another’s conduct in a action that she or is a direct allege victim, i.e., had a defendant preexisting consensual relationship Bro, (2) defined in and in an IIED action a allege existing prior relationship (in as either an of breach aspect really view order to my duty) sufficiently This, course, allege flies the face outrageousness misconduct. of the long-standing torts and principles liability behind for intentional negligence, and be a appears attempt transparent require privity contract as a prerequisite attempt for tort an liability, clearly Witkin, odds with long-standing legislative (See and judicial trends. Law, Sales, 95, 106, 79-80, 89.) Summary supra, Cal. §§ First, The also muddies majority basic tort law two it contends ways. Fletcher, Little and at the heart of our nonpayment “[i]n holding policy benefits be outrageous was the presence of contrac- preexisting, tual under which arose relationship those pay affirmative benefits.” These not cases do stand for and the any majority does not proposition, to, (and cannot) cite nor that the quote, any language states outra- geousness of a given behavior is on the existence of a dependent prior contractual between relationship defendant. Fletcher, Kaufman,

While it true that the author of Justice noted that the relationship between the parties significant whether determining IIED (Fletcher, should be imposed supra, 10 Cal.App.3d 403), tiie he authorities cited for that did relate to proposition5 solely contractual between relationships defendants. Inc., 493,

For in Alcorn v. example, Engineering, Anbro Cal.3d plaintiff was employee of the defendants. While the relationship 5Prosser, 2, 11, (3d 49; James, 1964) Law of ed. Harper Torts section chapter page 9, 666-667; Torts, 46, Law (1956) of Torts pages section Restatement Second of section e; comment Magruder, Mental and Emotional Disturbance in the Law Harv. Torts 1033, 1051-1063; Prosser, 40, 47; L.Rev. Outrage Insult and Annota Cal.L.Rev. tion, 108, 158-163; 15 A.L.R.2d (1970) 2 Cal.3d Engineering, and Alcorn v. Anbro Inc. 216], footnote 2 468 P.2d nature, in this was be considered contractual employee may employer mentioned; in which the court Alcorn not the of the aspect relationship in a or position the court considered the fact that defendants instead “[stood] his particular relation over and were “aware of authority plaintiff,” of 498, (2 omitted.) to emotional distress.” Cal.3d at fns. susceptibility p. Torts, So, too, Second of also comment e of section 46 of the Restatement Fletcher, reference relationships. relied makes no to contractual upon Instead, the may “The extreme and character of conduct outrageous states: other, relation with the arise from an abuse the actor of a or a position, other, him or power which actual or over gives apparent authority authorities, officers, affect his interests. ... school particular police landlords, and creditors have been held liable for extreme abuse of collecting ,”6 their It clear the common factor these varied position. uniting . . of actors is not their contractual categories potential existing relationships others, with but their positions power. remarked, in connection with

It is that Justice Kaufman also significant “Additionally, between the importance relationship parties, with enterprises utilities and other special obligation public affected public liability interest has been noted as significant imposition conduct, upon outrageous apparently such defendants even in the absence of basis of fair treatment of the whom upon policy encouraging public (Fletcher, supra, serve. enterprises Cal.App.3d [Citations].” added.) italics Given the insurers position today’s automobile dissent, later in this society as discussed more detail economy, insistence on such insurers from majority’s essentially exempting IIED general they may as to all members of the with whom public unreasonable, called to interact is and unfair.7 illogical, Prosser, Outrage, supra, Insult and repeated 6This statement 44 Cal.L.Rev. 47: outrageous is done as extreme and nature of the conduct arises not so much from what “[T]he plaintff, position from the abuse the defendant of some with the or some relation gives apparent authority plaintiff, power damage him acutal or over the his interests.” Thus, among examples outrageous Prosser’s of defendants found liable for conduct were members lynch up plaintiff, police of mob who threatened to or beat officers who falsely told a woman that her husband order to lure her into hospitalized and child had been lunacy. relationships confinement It is clear that these contractual defendants had no instead, plaintiffs; positions power, abused and on that basis were liable for outrageous conduct. special obligation charged Magruder, 7This public of those with the interest was noted in Torts, supra, Mental and Emotional Disturbance in the Law pages Harv.L.Rev. at in Fletcher. one of upon the authorities relied article, Magruder law innkeeper In his review discussed a case in which an held liable experienced guests for the and accused them humiliation two after he broke into their room case, being using improper purpose. unmarried and for an In that the court room Witkin, Second, commenting that mistakenly implies the majority IIED, to the absence of referred for liability specifically cases involving the found, of presence and the liability where no was those cases privity Witkin, decidendi the ratio (“According where did exist. liability privity cases, of that finding nonpayment to a first-party leading in each of these derived outrageous, under the several was policies due the insureds benefits that this “To relationship emphasize insured and insurerand from the of decisions, Witkin in these crux of breach finding was the relationship special claims where the plaintiffs’ thereafter to discuss cases immediately proceeds denied want distress were for intentional infliction of emotional of for read the noted opinion I the readers of this privity.”) only encourage can themselves; of the presence Witkin makes no mention sections Witkin for insured it the of relationship and never states that was or absence of privity, outrageous. and which made the insurer’s conduct insurer Distress, Injury, Is Accompanying Physical 3. Emotional Without Injury a Personal Legally Compensable as The assume “all foreseeable asserts that that majority is insupportable an that such an assumption distress constitutes and injury” order majority, to the logic precedent. According as a matter of and of Civil Code an to the subject provisions show existence of injury that were owed affirmatively they must show section breached, to do. and that it was and this failed duty is defined injury The for the majority authority proposition cites no I, hurt my If and fall and negligence, and breach. own duty through my slip back, I with whether nothing have sustained an has to do injury; injury relate to the owed me a it. and breach anyone Duty breached i.e., the plaintiff, whether the defendant will be held liable to question for the harm suf- whether the defendant will have to compensate plaintiff has suffered fered. and breach do not define whether Duty plaintiff injury. nature, by law public of a is innkeeper “carrying considered the fact that the on a business treatment’, and of charged extending guests with the and decent ‘respectful his their comfort or

refraining them would interfere with from wilful conduct toward words, policy where for reasons humiliate and distress them. In other here is a situation redress for mental distress relationship parties, gives because of the the law tranquility insulting and humiliation conduct. The interest in mental caused the defendant’s here, analogous carrier-passenger being directly independently protected as in the conduct of insulting for relationship, many passengers where cases have allowed to recover insulting conduct Incidentally, may the carrier’s servants. . . . be noted that for parasitic as an instance innkeeper adequately explained in the carrier and cases is not case], innkeeper damages upon a cause action breach contract. In [the well, though wrongdoing agent as upon but imposed upon corporation the hotel omitted, latter, course, (Pns. italics relation.” innkeeper-patron was not a added.) alone, Further, without also that emotional distress majority implies injury physical personal is not form any accompanying injury, Tire & Potter v. Firestone following legally compensable. quote P.2d Rubber Co. 6 Cal.4th 965 Cal.Rptr.2d 795] suggestion: debunks this law, that, the existence of

“Amici curiae first assert under California case emotional distress recovering damages is a physical injury predicate recovery (e.g., in a action unless the action involves negligence ‘bystander’ 771 P.2d Thing Cal.Rptr. v. La Chusa 48 Cal.3d 644 814] [257 between the Thing]) or there is a ‘preexisting relationship’ [unless] [hereafter Medical Psychiatric and defendant Marlene F. (e.g., [v. Affiliated Clinic, (1989)] supra, 583) Cal.3d which creates a Inc. here. This assertion is plainly neither of which is

plaintiff, implicated that, in reaffirmed the recently principle without merit. we Significantly, [¶] California, may for inflicted emotional distress be ‘damages negligently (Burgess, recovered in the . . .’ impact absence of or . physical injury not a supra, 1074.) prereq Cal.4th at We held that p. ‘physical injury distress,’ uisite for for serious emotional recovering damages especially in where ‘there exists a the circumstances “guarantee genuineness assertions, (Id., 1079.) amici curiae’s Contrary case.” at p. [Citation.]’ [¶] bystanders never been to cases principle involving has restricted sug curiae cite even Notably, authority amici no preexisting relationships. 986.) (6 such a limitation.” Cal.4th at gesting p. as injury, alleged by

Emotional distress without accompanying physical here, is, fact, (see, e.g., in injury” legally compensable “personal Witkin, 1403, 1409, 1410, Law, Torts, Summary of Cal. §§ 879, 880) in in emotional distress was cases which a serious plaintiff’s caused a defendant’s breach of a owed to legal duty plaintiff. Holding Party 4. The in Moradi-Shalal Does Not Preclude Third Proper IIED NIED in Case Suing Claimants From Insurers final to validate its majority’s position method of attempting insurers can never held liable IIED is on Moradi-Shalal for rely be Moradi-Shalal, there was not and is that “both before and after proposition distress, where not a cause of action for intentional infliction settle, in even the insurer’s offering though based on a delay have defined as unfair behavior mirrored those settlement may practices the Insurance Code.”

However, issue of dealing court was not Moradi-Shalal law to third whether could ever owe a common any insurers kind of claimants; instead, Globe Ins. Royal holding with the dealing it was party 842, 592 P.2d 23 Cal.3d 880 Superior Court Co. v. a private, could maintain Globe) third claimants (Royal 329] the Insur- violations of insurers for against cause of action statutorily based And, Royal overruling 304.) (Moradi-Shalal, 46 Cal.3d at ance Code. Moradi-Shalal, Globe, decision was that its cautioning after court pro- the unfair practices to commit industry an invitation to the insurance Code, retain the courts stated that “. . . the Insurance specifically scribed insurers remedies civil or other impose jurisdiction fraud, actions, such traditional theories common law based on appropriate distress, insured) either (as breach infliction of emotional fair dealing. faith and good covenant of implied contract or breach of contract, arising available actions not damages may Punitive Code, fraud, (See Civ. or malice is proved. § where oppression addition, has at- where an insurer may interest be awarded prejudgment id., (Moradi- 3291.)” (See to avoid a fair settlement. prompt, § tempted Shalal, 304-305.) 46 Cal.3d at pp.

The clear of the above-noted majority seeks to avoid the opinion import wit, that its overrul- language, anticipated to that Moradi-Shalal specifically maintaining did claimants from ing Royal Globe not third preclude party insurers, characterizing it as any against other kinds of civil action by ante, Lee Travelers 189) then v. “reassuring” (maj. opn., by quoting p. “ it (Lee): ‘. . . Companies (1988) 205 691 Cal.App.3d Cal.Rptr. [252 468] the is well that of settlement or settled failure to an offer accept “[t]he violation of under the Code section does statutory duties Insurance 790.03 a not itself constitute the which will outrageous support conduct type ’ cause of action for distress. intentional infliction of emotional [Citations.]” 691, (Lee, supra, 694-695.)” 205 then “con- Cal.App.3d majority (but, held) Lee a claimant can to mean not to have that notably structs]” never in delay offering state a cause of action for IIED based on an insurer’s settle, to “even have mirrored those though may the insurer’s behavior settlement defined as unfair the Insurance Code.” practices by

However, in Lee language the has the majority opinion pointedly ignored to majority opinion, the immediately portion quoted by follows infliction of wit: “Since have their intentional explicitly premised their emotional distress count defendants’ to upon purported ] fulfill[ failure acts duties .’ and not other statutory alleged specificity any . . have in a ‘. . . extreme exceed all that tolerated usually so as to bounds of [citations], defend- civilized the trial court’s community’ ruling [sustaining (205 ants’ demurrer leave to was also correct.” without on count amend] added.) italics Cal.App.3d

222 words, Lee a third could never other did not hold that claimant party which “mirrored by state cause of action based on “behavior” the insurer Instead, defined unfair Code.” practices by those settlement Insurance IIED, sufficient, cause of Lee held that was for a action for simply duties; instead, failure to fulfill must allege statutory specifically Doctors’ outrageous. example, acts insurer which are For allege Superior (1990) Co. Ins. Services v. Court Cal.App.3d [275 commented, 674], on based appellate specifically court Lee, that “a action for intentional infliction of emotional cause of opinion letters harassing lie where an sends may deceptive distress insurer to induce a third claimant to settle. effort [Citations.]” reiterate, did no more than deny private To Moradi-Shalal based, cause to the unfair claims of action statutorily practices pursuant (UIPA). that the My “reassuring” Unfair Insurance Practices Act view IIED is gener- NIED actions Moradi-Shalal to both language applies Superior Court court Ins. Co. ally supported Life Manufacturers October granted review Cal.App.4th Cal.Rptr.2d 424] (S031022), which stated: of action rejecting rights “While new attempt predicate UIPA, remedies were existing the court emphasized Moradi-Shalal It and the courts unaffected the Act. the Insurance Commissioner ‘urge[d] enforce the forbidding practices continue to laws [unlawful insurance] that ‘the courts full extent consistent with our and declared opinion,’ retain civil or other remedies insurers jurisdiction impose actions, theories as common law based on such traditional appropriate distress, fraud, (as insured) infliction to the either breach of of emotional and fair good dealing.’ contract or breach of covenant of faith implied 304-305, (Id. added.) at italics pp. to rest

“We understand the reference to the common law Moradi-Shalal claims prac- on the that the of action asserted there—unfair cause premise UIPA itself Since the statutory tices—had no basis outside of UIPA. action, common was to such law right plaintiff relegated afforded no might claims available. UIPA, marks

“Moradi-Shalal a return to the fundamental principle statutes, neither language like all is to be to its terms. Its applied according Justice the view of rights destroys creates new nor ones. This was private old Richardson, whose dissent in Royal Globe, ^[1979] 23 Cal.3d ^[880] at pp. 895-898, 294-296.) He (46 heavily was cited in Cal.3d pp. Moradi-Shalal. liabil civil or criminal any preexisting ‘preserves that section 790.09 wrote decisional law.' statutory face under other might the insurer which ity added; 893, Globe, p. see id. some italics 23 Cal.3d at (Royal 409 [118 Similarly, Cal.Rptr. the court 680], Shernoff acknowledges Superior that section Court ^[1975] 790.09 44 Cal.App.3d ‘expressly have who against persons criminal remedies all civil and litigants reserves to are consistent added.) These authorities (Italics violated the law.’ elsewhere.” courts view of the statute and with the unanimous language 85-86.) (27 at pp. Cal.App.4th

Here, allegations earlier eliminated their amended complaint under Insurance fulfill their duties statutory defendants had failed to Plaintiffs allegations. Code section 790.03. Moradi-Shalal precluded actions, as their common law as a basis for alleged instead conduct specific conduct, true, earlier, if extreme to constitute sufficiently which noted 231-235, concluding (See post, IIED. the basis for a cause of action for if an insurer directed outrageous that conduct would be considered insurer at a third party at an insured also if directed outrageous claimant.) Thus, assertions, state a all that is required to the contrary majority’s “ ‘(1) IIED conduct outrageous facie case of are of:

prima allegations defendant, (2) disregard possibility intention to cause or reckless distress, (4) actual and (3) causing suffering severe emotional ” (Agarwal v. the emotional distress. proximate causation of [Citations.]’ And, 58].) P.2d (1979) 25 Cal.3d Johnson assertion, or a need not be privity also to the there contrary majority’s defendant and be- contractual between the preexisting relationship outrageous;8 fore the defendant’s can be characterized as conduct the plaintiff. the defendant can have owed to be found to breached its Thus, state a here element clearly alleged every necessary have cause of action for IIED. Preclude Third Directly 5. The Lack Case Law on Point Does Not

Party Emotional Distress Suing Damages Claimants From for for Intentionally by Either or Insurers Negligently Inflicted First, cited the much have not plaintiffs makes of the fact majority an NIED against in which claimant’s action for any a cause of opinion (1) position or may outrageous abuses a relation 8“Behavior be considered if a defendant interest; (2) gives which knows power damage plaintiffs him [or her] distress; unreasonably with intentionally or susceptible injuries through mental acts through mental distress. recognition that the acts are likely [Citations.]” to result in illness Johnson, added.) v. 25 (Agarwal supra, p. Cal.3d at italics ante, 189.) The fact that at p. recognized. (Maj. opn., insurer has been irrelevant: opinions any previously published have not cited such that have been action those except “The that there are no causes of concept law, was not the common assumed at some recognized by precedent, point (Rosefield it accepted today.” at common law nor is generally early accepted Witkin, 479]; Cal.App.2d Rosefield Law, Torts, 75-77.) supra, of Cal. Summary § rule, of action for product If were there would not be causes not with prospec- for interference right for violation of the liability, privacy, (See cases cited to an unborn child. advantages, injury tive business or for Here, Law, Torts, Witkin, 16 at Cal. Summary p. § action, a of action because cause are us to create a new cause of asking Instead, asking are simply NIED time now. has existed for some tort to automobile court the same apply principles as are applied in their with claimants relationship insurance companies other tortfeasors.

Second, unwillingness claims that there has been a “uniform majority in favor running a common-law to settle9 duty of courts to now to create up the “conflict it attributes to unwillingness of third parties,” supposed adverse legally to characterize the “any undertaking of interest” implicit a for imposing and third parties predicate between insureds relationship to settle . . . .” held, as a matter which have itself cites no cases Remarkably, majority law, law common ordinary, claimants cannot maintain that third party if the proper IIED insurers against they allege action for or NIED cause of third parties that there are cases “where elements. The does assert majority insur- their tortfeasor’s have failed their efforts to recover distress,” (maj. opn., ance infliction of emotional company ante, (1986) 184 207) Royal Cal.App.3d and cites Soto v. Globe Ins. Co. duty to settle. I have characterizing here involved as the majority persists 9The a ridiculous by a claimant. That would be opined every never that an insurer must settle claim position. injuries and/or person who incurs Upon the involvement of an insured in an accident with insurer, special resulting person making a claim property damage, in that is made at the time the claim relationship begins exist between the claimant and the insurer without unreason- the claim attempt to resolve creating duty by the insurer and claimant in nature but delay, good able relationship is not adversarial special This fairness faith. or both when one understanding. It becomes adversarial openness, is one of candor and settle, e.g., when attempt unfairly during toward the other parties unreasonably act claim, to resolve the delay arbitrary the insurer there has been unreasonable refusal injuries and losses the claimant’s particularly when the insured’s for the accident and reasonably are certain. Lee, ante, supra, 207-208) (maj. at pp. opn., Cal.Rptr. 192] [229 208-209.) at (Maj. opn. 691. Cal.App.3d third that for the proposition reliance on these two cases

The majority’s NIED never a cause of action state successfully claimants can a proposition Lee's for such inapplicability misplaced. insurer is Soto, 221-222, ante.) As for it was (See pp. has been discussed. already as case, holding to use its attempt and thus the majority’s pre-Molien -Molien weight. authority persuasive lacks post Soto, Moreover, an injured held the members of family this court that an insurer who NIED against could not state a cause of action for employee benefits, compensation claim for workers’ delayed paying employee’s between relationship” lack of or a “privity” “preexisting but not because of and the members.10 family insurer plaintiff Moreover, its claim that cited cases to any support has not majority on the duty” create a common-law there is a “uniform “to unwillingness” any on 10Although premise seek to its reliance Soto majority here does not existence, I think analytical holding, solely but on Soto’s mere three bases for Soto’s instead holding grounded simply its point upon it worthwhile to out that the three bases which Soto up upon do not analysis. hold careful basis, cause of discrediting point As to the first the Soto court made a (1980) 27 Cal.3d Hospitals action for NIED reference to Molien v. Kaiser Foundation 813, (Molien), concluding that the facts Cal.Rptr. 616 P.2d 16 A.L.R.4th “[o]n 518] here, alleged logic to describe defendant in the case it would be a massive contortion at the WCAB award as ‘directed.’ delaying payment plaintiff employee’s insurer’s action in alleged cause of action was plaintiff family Accordingly, members we hold that no [citation]. added.) (184 p.at italics theory.” Cal.App.3d these under the Molien However, negligent conduct the defendant’s the determinative issue in Molien was not that sexually- having a (whose mistakenly diagnosed was as plaintiff “directed” wife was reasonably disease), plaintiff transmitted but that the risk harm to the foreseeable easily (Molien, 923.) explained: “It is p. 27 Cal.3d at As the court in Molien defendant. produce probable source would predictable diagnosis syphilis that an erroneous and its We . . . patient’s spouse. marital to a [T discord and resultant emotional distress married directed to him agree alleged thus of defendant was plaintiff that the tortious conduct hold, we reasonably foreseeable well as to his wife. Because the risk of harm to him was duty to negligence parlance, these circumstances defendants owed under (Id. 923.) p.at diagnosing physical exercise due care in condition of his wife.” basis, that, according Superior to Ochoa v. As to the court in Soto concluded second 1], (1985) requirements were two Court Cal.3d 703 P.2d there 159 [216 resulting from stating shock foreseeability a cause of action for NIED: of an emotional law, concluded, (184 as a matter of Cal.App.3d an “abnormal event.” It then event.” not “an abnormal timely compensation mere failure to workers’ benefits was pay (Ibid.) However, into the than was warranted my opinion, simply the court in Soto read more Ochoa, event,” Ochoa. In meaning as that was used the court in “abnormal term once, “sudden of whether a in its discussion court used the term “abnormal event” 226 settle, at issue here: actually let to create the duty of insurers to alone

part during negotiations deal and faith settlement honestly good the claimants, within to come to a fair settlement attempt with third and to reason- has become a reasonable amount of time after the insured’s are ascertainable. damages reasonably clear and the claimants’ ably Instead, held that third on cases which was majority the concentrates of the insurers for breach standing lacked to sue the tortfeasor’s parties contractual covenant of ignores faith and fair and good dealing, implied is not relationship] fact that of contract form of “Privity preexisting [a by who suffers emotional necessary requirement recovery bystander occurrence” was a for 167-168.) (39 pp. Cal.3d at upon witnessing negligently injury distress caused to a loved one. occurrence” was an unwar requirement The Ochoa court concluded that the of a “sudden high there is a guidelines, on the Dillon because it limited “when ranted restriction flows from an abnormal degree foreseeability plaintiff of shock to the and the shock event, (Id. 168.) p. . . .” at event,” opinion apparent, “abnormal but it is when The court in Ochoa never defined conduct, whole, tortious simply read as a that the term “abnormal event” meant some act, defendant, permitted recovery would be tortious failure to since Ochoa held and the when the suffered flowed from the “observation of the defendant’s conduct shock or lack the defendant’s conduct injury contemporaneous and awareness [that] [loved one’s] whether, one],” was at the time the conduct causing regardless thereof is harm to the [loved observed, (39 the conduct. Cal.3d plaintiff/bystander was aware of the tortious nature of 170.) p. at and, event, Thus, any holding analytically wrong, basis for in Soto is the second here, “bystanders,” plaintiffs as were the inapplicable for the here are not Soto\ pay on the insurer’s failure plaintiff family members in Soto based their cause of action claim; on the cause of action their husband/father’s here have based their NIED pay insurer’s failure to their own claim. Quezada Cal.App.3d v. 815] The third basis is Hart for emotional distress correctly extending recovery held that California law did not warrant 433-434.) involving (184 Cal.App.3d pp. at damages negligence in cases without bad faith. Quezada quote the entire problem apparent with Soto’s reliance on becomes when read, Quezada entirety, quote, Soto. The in its opposed quote to the edited contained in states: foregoing to extend the doctrine purported “To the extent that the court in Jarchow damages’ was to ‘cases recovery suffering cases which for 'emotional limited [cases by defend wrongdoing involving physical impact injury plaintiff either and or intentional involving negligence suffering damages in cases recovery allow for emotional ant,’] by California physical injury, without bad faith and without the extension was unwarranted law, wrongdoing prior all cases contain some element intentional affirmative Hart, (Quezada portions added to those supra, Cal.App.3d p. italics defendant." of Soto, Quezada supra, Cal.App.3d omitted the court in words, case, Quezada, could not recover pte-Molien plaintiff In other held that prove plead could negligence plaintiff in a case unless the emotional distress Soto, Supreme majority ignores the later physical injury. By relying bad either faith or plead must disposed requirement that a opinion Court in Molien (Molien, 27 Cal.3d at prove recovery as a for NIED. physical injury prerequisite Thus, 929-930.) Quezada majority’s so too is the upon misplaced, Soto’s reliance reliance on Soto. care not to ordinary to exercise to establish the existence a

necessary another, assumed relation duty may voluntarily arise out a injure but such (Merrill v. Buck duty.” such a ship public policy dictates the existence if 552, 456, 304], italics 375 P.2d Cal.Rptr. 58 Cal.2d 561-562 [25 added; Inc.) (1991) (Southwest Diversified, Superior Lacher v. Court see also 1038, 640]; Hearst Hanberry 1047-1048 Cal.App.3d Cal.Rptr. [281 519, 680, 39 A.L.R.3d Corp. 684-685 Cal.App.2d 173].) rather of automobile collision by entering

It is obvious that policies into insurance, to the insured to liability voluntarily assuming duty insurers are in exercise due care claims such insured under such handling policies, as it is obvious that are also into a just entering potential relationship insureds, who their yet-to-be-identified may injured by claimants can will into a potential legally significant and relationship ripen once the insurer is notified that insured has relationship injured partic- its ular claimant. it is also in Moradi-Shalal that such

Finally, apparent (despite holding may bring claimants not civil action to Insurance Code private pursuant 790.03) section that both Civil case law and Code section 1714 imрose care, on insurers in third handling to use due and to act faith when good 304-305; Moradi-Shalal, (See, claims. parties’ e.g., supra, 46 Cal.3d at pp. Code, Burgess, supra, (a) Cal.4th at Civ. subd. quoting § acts, ‘Everyone is not for the willful but also responsible, [“ result of his for an injury occasioned to another his want of care or skill ordinary has, the management of his so far as the latter property person, except care, ”].) willfully byor want of himself.’ ordinary brought injury upon Therefore, the directly lack of case law way precludes no point law, here a common defend- bringing tort-based action ants. Additionally, majority’s contrary, assertions to unsupported there are no cases insurers evidencing any judicial unwillingness require to exercise the same kind all of care their affairs as is handling required other and businesses individuals.

6. The Majority’s “Adjunct” “Nonadjunct” Distinction Between Claims Meaningless Emotional Distress Damages Is The majority, connection with automobile attempt explain why its insurers are in Civil subject to the rule of stated general Code section distress and to buttress its that the emotional assertion by third to conduct experienced party claimants when such insurers refuse not an characterizes the injury, faith is negotiations good settlement “adjunct” with the contrast “nonadjunct” claims of such claimants as who entitled to recover.11 claims are as used “nonadjunct” never the terms majority “adjunct” defines distress, use of and cites for its authority to describe claims for emotional no However, claims or “nonadjunct” concept “adjunct” these terms. was first the author of the “nonadjunct” used “adjunct” damages Bro, here, 22 supra, he in in the earlier authored majority opinion opinion Bro, 1417, were the terms pages at 1420-1437 1444. Cal.App.4th whether such defined as involve follows: “These classifications apparently in to other emotional were asserted addition damages claims [for distress] (thus, (thus, whether such claims stood alone damages adjunct) claims for or 1417.) (22 at nonadjunct).” Cal.App.4th use of in its legitimate

The Bro made an abbreviated to opinion attempt to recovery plain- a basis for adjunct/nonadjunct denying distinction as in “The Burgess, “nonadjunct” tiffs with claims by asserting state ‘may Court ruled was not but bystander that the mother Supreme arising from [adjunct] claim for for serious emotional distress 1064, 1085.)” 2 (Burgess, supra, of her Cal.4th negligent delivery child.’ 1414.) (Bro, The Bro use of brackets supra, Cal.App.4th opinion’s at p. course, is, the clue of this “adjunct” sincerity around the word claim, a new a third based on newly to coin classification of attempt “nonadjunct.” The categorization “adjunct” minted entitled damage being course, claims. Burgess, adjunct nonadjunct court never mentioned Bro, and what the do majority attempts what court did Essentially well, basis) that only here as is to create a new rule rational (lacking any some other when a claim emotional distress plaintiff’s “adjunct” for claim, (even claims are a claim for both e.g., though medical malpractice i.e., negligent not to be primary right, right based on one harmed another), is simply conduct of will allowed This to recover.12 an effort to return to the could not recover for when days plaintiffs court, which was No appellate distress unaccompanied by physical injury. Court, in reinstat- our indicated the interest including Supreme slightest has such a ing requirement. majority (adjunct) damages.” 11The also refers to “. . . rule, the court Bro glean any giving simply purported 12Instead of reason for this (22 pp. at 1420-

principle analysis catalogued. Cal.App.4th from its cases it the various However, issue catalogued on the any none of cases so involved decision “adjunct” “nonadjunct” versus claims. Policy 7. It Is Burden Point to Public Reasons Which Defendants’ Justify Negligent Them From Their Conduct Exempting Liаbility v. Christian majority urges holding first that the Rowland (Rowland) Cal.2d 108 443 P.2d 32 A.L.R.3d 496] is irrelevant here because Rowland involved upon plaintiffs rely, (and here no such “personal (physical) injury” injury); suffered (2) Rowland had nothing to do with infliction of emotional ante, (and does). 198-200.) here (Maj. distress the case opn., above, Furthermore, As discussed here did suffer an injury. Rowland, held, 112-113, Cal.2d that a is liable pages person caused failure injuries by his to exercise care the circum- ordinary stances, and, unless there ais statutory exception declaring exception the fundamental stated section no other should principle exception be made unless latter is clearly supported by public policy. general This rule to applies all cases caused another’s involving injury negligent conduct, not to cases invitees of of simply involving property occupiers “physical” injuries as cut hands.

The majority opinion also states that it is to up point public reasons which policy justify imposing liability on insurers for their negligent conduct committed third claimants while the latter’s party handling ante, 202, (Maj. claims. opn., at pp.

However, later, as in analyzed more detail it is responsibility defendants’ to demonstrate a statutory or a reason for exception compelling public policy exempting insurers from third liability to claimants for their party defendants, acts. The and the have majority, failed to do so.

Although majority has excused itself from any public applying policy factors might favor defendants here from exempting acts, for their I allegedly negligent majority’s invitation accept to consider and the Rowland apply factors to factual analytic allegations of this case. As set in I forth later this that no dissenting opinion, conclude policy reason exists for third exempting insurers from claimants injured by an insurer’s the contrary, acts. To wrongful appli- cation of such factors supports the of a defendants to duty by existence exercise care in ordinary claims. handling plaintiffs’ 230 Applicable Be One Foreseeability 8. Continues to Several Factors Excepted Be Should

to a Consideration Whether a Defendant for Policy Liability From Its to a Its Reasons General Plaintiff for Seeking Negligence Though Primarily Damages Even Is Plaintiff Emotional Distress as useless” “essentially also asserts that majority foreseeability a

a factor whether a defendant owes determining cases,” Bro, supra, based dicta emotional distress “purely ante, 1401-1402, 1437, Burgess, Thing. (Maj. opn., at Cal.App.4th pages 190, In 201-202.) Burgess, our wrong. at This pp. patently assertion “ alone is made ‘foreseeability injury Court a comment Supreme NEED not a useful restriction on “guideline” meaningful scope [a ” Thing, supra, at (Burgess, p. quoting Cal.4th action]’ added), not state that foreseeabil certainly Cal.3d italics but it did fact, in the the issue of ity determining duty. post-Burgess was useless (1993) 6 Shopping of M. v. Center Cal.4th opinion Ann Plaza Pacific Panelli, 207], writing six-justice P.2d Justice Cal.Rptr.2d i.e., [area, concerning “In law stated: the area of tort majority, acts of wrongful defendant’s take duty to affirmative action control law, foreseeability areas is a crucial third other of tort parties], factor 676-677, (6 determining duty. Cal.4th existence [Citations.]” added; Regents University italics also Tar see asoff California 14, 334, 425, 434 83 A.L.R.3d 1166] 17 Cal.3d P.2d Cal.Rptr. [131 ‍​‌‌‌‌‌‌​​​‌‌​​​​​‌‌‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌​‌​​‌‌‌‍[Tarasoff].) which the laid

Having major legal upon factual premises out. of the fallaciousness majority’s is based and analysis my general response such, I now examine more critical detail erroneous reasoning of these majority of its the correctness engages by assuming reason its affirmance the trial order. premises justify court’s

II

Discussion IIED A. Cause Action Plaintiffs’ for discredit uses of different melange arguments majority opinion it is cause of action IIED. After melange separаted, that of its

apparent component points none is persuasive. 1. Alleged Outrageous Have Facts to Show the Plaintiffs Sufficient Necessary Support Conduct a Cause IIED Action Here, Alleged

a. The Facts Substantially WhichAre Similar to Facts Found in Fletcher and Be Little to to Constitute Sufficient Insurer, “Outrageous Conduct” Be Distinguished Cannot on the Ground That Here Supposedly “Preexisting Had No Plaintiffs Relationship” Privity Contract With Defendants.

The majority opinion asserts that the alleged by facts do not constitute the kind outrageous conduct necessary to a cause of support IIED, action for cursorily reliance on dismissing plaintiffs’ Fletcher by observing Little cases the both and defendants had a contractual “preexisting, under which “an relationship” duty to affirmative words, pay” policy benefits arose. other the majority to distin- attempts guish Fletcher and Little party, because were breach of contract first However, cases. what the fails to deal with majority the plaintiffs IIED, both Fletcher and Little also sued for a tort cause of action as to which the first party/third party, “preexisting, contractual distinction relationship” is irrelevant.

The distinction between first and third cases is relevant clearly should a third contract, party claimant attempt sue an insurer for breach of or for breach of the implied contractual faith and fair good dealing (see, Globe, 880, 889-890; e.g., Royal supra, 23 Cal.3d Murphy v. Allstate 937, Ins. Co. 17 Cal.3d 584])13 940-941 Cal.Rptr. 553 P.2d [132 but it is completely irrelevant cases tort involving causes of action because the determinative relationship between and defendant in tort cases is not one of contractual or of a privity “preexisting consensual Rather, relationship.” it is one based on the balancing of public policy factors necessary deciding whether a tort duty (Thompson exists. County Alameda 27 Cal.3d 614 P.2d Therefore, 701].) A.L.R.4th the majority’s reliance on the first party/third party, “preexisting, contractual relationship” distinction is simply misplaced. Fletcher,

In for, the insured sued his insurer other IIED. among things, This claim was based allegations on that the insurer had made false and threatening communications to the insured for the him purpose causing to 13Notably, none allegations of the complaint suggest plaintiffs in the first amended are attempting to state a cause of action for either contractual or tortious breach of the covenant good faith and fair dealing, or proceeding party beneficiary that are on a third theory. contractual into a settlement. disadvantageous jury surrender his or enter policy insured, that conceding and the insurer appealed, returned a verdict for its contending but that outrageous, its behavior towards its insured was settlement during process conduct was because occurred privileged negotiations. interests, insurer, is held its pursuing that an own economic

Fletcher communicate its settlement legal posi- to assert its and to privileged rights insured, will so it cause certainty doing tion its a substantial despite However, is privilege it also stated its insured emotional distress. absolute; a way, must be made a with not such assertions permissible asserted, and if privilege in the good rights faith belief existence manner, held liable outrageous doing may in an so person exercised (10 395.) bad faith for IIED. It held that the insurer’s Cal.App.3d p. insurance, disability to make under the insured’s policy refusals payments threatening were with communications employed which concert false him a intended to to surrender his plaintiff policy accept cause settlement, could constituted conduct which form basis disadvantageous (10 IIED. for an action for Cal.App.3d that it makes clear contrast assertion majority’s This reasoning may what an insurer have duty analysis no differenсe reasons claim, has those reasons because it expressed, to settle a how are refusing view, the majority’s claimant to According no to third settle. party cases, insurers, claims for in third with refuse settle impunity, may and/or the entirely reasons unrelated to insured’s questions settle simply claimants’ instead their refusal to on damages, justifying However, society self-interest. basis of the insurer’s economic as much as does simply insurance ours depends automobile cannot afford to such a adopt viewpoint. Little, IIED the defendant the insured sued defendant insurer for after it had relating

insurer bulk of the information ignored great purposefully its justifying to its insured’s medical of a course of part condition in- which the benefits to predetermined discontinuing disability course the wrong- caused by sured was entitled. Because of the financial hardships benefits, and to ful termination her to sell her home was forced live in and thereafter suffered housing daughter, her public project conduct, but defendant’s resulting directly emotional distress Held, conduct. from the economic caused defendant’s problems directly by “[wjhile in Fletcher this conduct is less defendant egregious than that of the ,. in defendant’s conduct jury fully justified finding . . the was impliedly (67 outrageous.” Cal.App.3d p. 462.) here have facts held in Fletcher and

Plaintiffs similar those alleged very (1) Little to be sufficient to constitute a action for IIED: that the cause of insurer had sufficient regarding reasonably liability by information clear its plaintiffs’ damages insured and its implicate attempt, good faith, settlement,14 to effectuate a fair and the insurer prompt, equitable did any not make to effectuate three attempt nearly years a settlement for information, instead, after receiving but with no reasonable basis for case, such to the denied believing liability falsely and asserted that (which had plaintiffs preexisting injuries would reduce dam- implicitly any receive, existed), (3) would be entitled ages they assuming even the made insurer no attempt equitable nearly effectuate an settlement for three years, of financial knowledge plaintiffs and distress were suffering because the injuries of caused the accident with the insured and because of the concomitant of income and loss of expense care, it medical being alleged part that Judith plaintiff, Krupnick, 15, 1983, disabled and totally accident that as of were plaintiffs, July on the verge being evicted from their due home to such financial hardship, (4) the insurer knew were plaintiffs severe suffering emotional distress as a claims, result insurer’s for more their refusal than three to settle years (5) the then insurer made a settlement offer with no more than it information accident, had had three some after the long months and period to effectuate a refusing settlement was motivated the insurer’s desire to retain monies payable to under the plaintiffs for as as policy long possible.15

And, Little, just as plaintiffs alleged facts from which it can be inferred reasonably that defendants here simply ignored their insured’s admissions establishing high likelihood his liability, ignored plain- tiffs’ evidence of their injuries, made unfounded assertions that plaintiffs had preexisting injuries, all part of a course of justifying defendants’ predetermined course of withholding payment any settlement for as long as possible. There is no conceivable based public policy reason to allow logic first

parties to recover IIED under such denying while third claim- facts ants the right. same reason analysis discernible majority’s “[ijnsurance companies exist to critical provide indemnity financial their risks insureds not salve the third feelings displeased above, 14As mentioned here injured were when defendant’s rear-ended insured 898, 903, them. (9th 1982) Beckham Ins. Co. America Cir. F.2d states at Safeco clear, footnоte 3 that “it just seems to us reasonably not clear” incidents involving rear-end collisions. 15Though specifically it is alleged, implicit complaint, reasonably inferable alleged, facts refusal intended to into pressure was also accepting a equitable less than settlement for their emotional financial distress. with their of indemnity and that contract claimants” party “[u]nder [the insured]”; and indemnify to only duty [is] [the insured] [an insurer’s] for the carrier “there reason or insurance legal requirement therefore no [is] This, third claimants.” of have to do with anything plaintiff party ever to course, is untrue. patently to to the insured implied duty running

The there an fact that is contractual Co., supra, (see Allstate Ins. Murphy in an case settle appropriate running to an 940-941) duty and contractual Cal.3d at no such pp. implied (id. 941), to the conclusion that at does not lead injured claimant claimant, of basic duty insurer has no to the separate pursuant principles Code, law, third Code 1714. After the the Insurance and Civil section tort a and established thereby claimant has submitted a claim to insurer party it, effectuate, in a attempt has duty the insurer a relationship time, has of a and settlement once reasonable amount fair equitable of nature and insurer has a idea general become clear and the reasonably recover in an action law.16 extent which the claimant could of against a a one remedy wrong As one’s entitlement to liability, to tort application for the necessary should not be based a status distinction party when The Court such in Moradi-Shalal of contract law. concluded Supreme Royal of action under it that the demise a Globe specifically statutory stated 790.03, did third (h) subdivision not affect Insurance Code section claimants law of action for distress and fraud common causes 304-305.) (46 insurers. Cal.3d that, Witkin, the “ratio decidendi” according also asserts majority cases,” and relationship insured first-party “derived from “these of words, insurer,” that the clearly the decided cases show and that other “[i]n can where there outrageous same defendants by respective behavior there is and not where none.” privity however, no conclusion fact, passages the cited Witkin contain such cases, do cited nor the cases

about the “ratio decidendi” the noted “privity” in terms majority outrageous the issue what frame given plaintiff a analysis relationship 16In whether a based exists between an on a defendant, relationship a whether there was given inquiry the relevant should be tortious event/breach allegedly between the and defendant at the time the negligent operation by its act not the allegedly occurred. The tortious here was defendants rather, collision; negligent was the defendants’ resulting insured vehicle and the of motor handling repeat, plaintiffs and defendants intentionally oppressive To claim. occurred, wit, wrongful relationship acts here had an established allegedly before settling making process of known claimants known engaged insurer insured. specific insurance claim related by known act

Í35 “preexisting relationships.” Our defined already Court has what Supreme makes and it that outrageous, privity behavior this definition makes clear contract or a are “Behavior may not preexisting relationship requisites: (1) if outrageous considered a defendant abuses a relation which position or interest; him gives power knows damage plaintiff’s [or her] distress; or is inten- susceptible injuries through mental acts tionally recognition with the that the acts are to result unreasonably likely Johnson, in illness (Agarwal through mental distress.” 25 Cal.3d added.) italics here, The alleged facts by must be as true for plaintiffs accepted purposes reviewing the propriеty defendants’ motion for granting defendants, judgment show pleadings, that as the insurers of the who person injured had as the plaintiffs and holders of the funds to which had a plaintiffs right to look for injuries, redress of their were such a that relationship plaintiffs it them the gave damage power plaintiffs’ interests by such funds while withholding knowing financial problems attributable to their insured’s These wrongful alleged conduct. facts further show that defendants abused this their relationship stone- walling tactics. knew, alleged facts also demonstrate that defendants or should have

known, were plaintiffs mental susceptible injuries through distress and yet engaged delaying activities made false statements which they reasonably could recognize would cause the undoubtedly severe emotional distress because of the of the financial press problems proximately caused combination automobile their resulting accident and medical bills and lost income.

Furthermore, as to whether the facts here alleged constitute Little, “outrageous” conduct by Fletcher analogy with facts it can be said that the “civilized community” which we live it believes outrageous an insurer lie to an insured as of a part stonewalling tactic designed to break down the insured’s resolve so as to obtain a disadvanta- settlement, geous but to use the same acceptable tactics on injured third claimant (and as to whom the insured’s hence insurer’s) so, nor, liability has become I clear? do think reasonably apparently, did the (the Legislature elected of California representatives citizens) 790.03, when it enacted Insurance Code section which condemns as unfair business practices the both insureds of such tactics on use claimants. Existing Duty Has Breached an b. Whether a Refrain Defendant Depend Person Not Inflicting

From Distress on Another Does Emotional Relationship Preexisting Special Existence With the on the a Plaintiff to majority inherently contradictory propo-

The also advance an appears IIED cause It with the comment that an “actionable” begins allege sition. insurer, of allege need not the existence plaintiffs of action an and, in kind of any preexisting special relationship, contractual or of privity fact, it that the of an claim for very “touchstone actionable clearly says conduct, the . without is nature of the defendant’s . . outrageous [IIED] relationship.” a then to assert regard preexisting majority Yet the proceeds that the cases a breach refrain from IIED do so based duty to finding of relationship. on the of a contractual primarily preexisting it special existence next heard privity reiterates that would never “be that majority say” IIED ever a element an or a is preexisting relationship necessary pleading action, of with no and insistent explanation cause but then restricts broad the statement to establishment of a duty. as element of really

What the is that to that majority appears saying be i.e., action, an actionable IIED the con- duty, existence of a preexisting need element of tractual not be but as to another special relationship alleged, action, i.e., IIED duty, relationship actionable the breach of the such a Thus, must be of to the alleged. regardless contrary, its protestations does hold majority relationship alleged that must be preexisting special course, IIED cause Of authority by majority viable of action. no is cited invading for its proposition general duty intentionally that the to refrain another’s of mind can be one who has a peace only by preexisting breached victim; that common tells us this cannot be relationship sense law. mind,

A who stranger intentionally person’s peace invades another distress, her causes severe emotional as to her for obviously just liable duty neighbor, breach of relevant as would her friend or business To associate. it another to actions must take or put way, duty relates one turn, refrain from In causing to avoid harm to another. breach taking actions relates to the defendant took to take and caused thereby or failed harm to another. It does not turn on defendant’s with the relationship (See (6th 1990) victim. Black’s Law Dict. col. col. p. ed. b a, which defines “breach” “The . . . a. . . respectively, duty, as violating omission,” either by duty,” commission or in pertinent part, and “breach sense, a general legal of a moral any duty.”) violation “[i]n or omission conclusion, that here have not majority’s plaintiffs determination sufficient IIED charac- stated facts to action for its constitute a cause terizing was the defendants’ plaintiffs’ position to be that “the problem” itself, and delay reasons for the and not the its delay, asserting had to allege preexisting relationship or a consensual privity necessary between defendants because such is allegation outrageous, establish that the defendant’s or to establish conduct there was a plaintiffs, insupportable breach defendants’ law, policy logic. public

B. “Causes Action” NIED and Violation Civil Code Plaintiffs’ Section 1714

The majority opinion discusses “causes of action” for NIED (section 1714) and violation of Civil Code section 1714 sections. separate ante, below, (Maj. 194-209.) opn., As I out believe that these pointed two “causes of action” be must discussed together. (1) 1. In the Absence Statutory Exempting Provision Insurers of Liability

From (2) Such Alleged Negligence Policy or Public Strong for Reasons Justifying Such an Exemption, Section 1714 This Precludes Court From Exempting Insurers Liability Damages From to Claimants for Caused the Insurers’ Acts Negligent IIED, in Plaintiffs pleaded, addition to their cause of action for separate of causes for NIED and action for breach of the statutory duty imposed by 1714, section which in provides, “(a) relevant is part, Every one responsible, acts, for the result of his willful but for an injury also occasioned to another his want of care or in ordinary skill his management of has, property person, so far except as the latter of willfully by want care, ordinary brought the injury upon himself. extent of liability is cases defined Title on Compensatory Relief.”17 This latter “cause of action” for breach of not a statutory duty really separate cause A action. cause (1) of action is based on right primary possessed by (2) plaintiff, a primary duty devolving upon 1083, 1093 defendant. (Mayo (1986) v. White 178 Cal.App.3d Cal.Rptr. [224 373]; Code Pomeroy, (5th Remedies 1929) ed. p.

For a cause IIED example, of action for consists of plaintiffs’ legally Witkin, protected Law, interest of mind peace (see 5 Summary Cal. Torts, 403, supra, at 483-484 and pp. therein) § cases cited of defend- ants’ to refrain duty from intentional or reckless interference that interest, NIED, while a cause of action for which is really a variation simply of a cause of action for negligence (see Potter v. Tire & Firestone Rubber

17The title on Compensatory Relief is found at Civil Code section et seq. 3281 238 1072; 1064, 965, 984; Co., 2 supra, 6 Cal.4th supra, Burgess, Cal.4th Clinic, (1989) 48 Cal.3d Psychiatric Medical Inc.

Marlene F. v. Affiliated 583, 98, 278]; & Slaughter v. Process Legal 770 P.2d Cal.Rptr. [257 1236, 189]), Cal.App.3d Cal.Rptr. Courier Service [209 mind and of interest plaintiffs’ legally protected peace consists same defendants, care ordinary to use a different on the part if is not care anticipated activities from which harm reasonably might Torts, 732, 61, Law, Witkin, (6 of Cal. Summary § § taken. therein.) 87-89 cited and cases Thus, 1714, every sets principle section out the fundamental her and inten- for the of his or responsible consequences one is acts, statutory tortious basis of tionally simply an alternative IIED). (See, (and e.g., also causes of action for NEED support plaintiffs’ 551 P.2d Landeros v. 17 Cal.3d Flood Therefore, in that 324].) analytical flaws discussing 97 A.L.R.3d of tort legal theories portion majority opinion regarding general NIED, it is discuss cause of useful to plaintiffs’ action basis finding reliance on section 1714 as an alternative stated a of action for negligence. cause conduct; it any particular Section 1714 does not purport proscribe her caused his or by states that one is liable for simply every Thus, that say or acts. accurate to negligent really intentional it is not instead, below, 1714; have as sec- explained defendants “violated” section 1714, which for authority tion reflects public policy by legislation, really that, contrary, of the policy the the absence principle stronger public by defendants should held liable for caused their intentional any injury acts.18 negligent

In that the related to portion majority opinion plaintiffs’ purported of 1714, of action” the “cause for “violation” of section majority disposes citing reliance on section 1714 for by criticizing plaintiffs 1714 section 1714 and Rowland as for the that section authority proposition NIED as here. liability alleged for imposes

However, the additional to Li ignores plaintiffs’ citation majority 858, 804, 532 P.2d Yellow Cab Co. 13 Cal.3d 819 [119 course, causing injury form of mental negligently 18Of defendant’s the (Potter v. Firestone limited that the “serious” by requirement distress is the distress must be “ 1 Co., 989, & Rubber . supra, Tire p. 12) and that there either “. . 6 Cal.4th fn. must be ’ ” “ ‘ nature,” medically significant proof mental “some proof of distress ... of a ’ ” (Potter Tire & v. Firestone guarantee genuineness in the circumstances of the case.” Co., Molien, 916, 931, supra, 987-988, supra, Rubber quoting Cal.4th at 27 Cal.3d 6 509, 156, quoting Rodrigues v. State 520].) 52 Hawaii 173 P.2d 1226, (Li) intended 78 A.L.R.3d for its that section 1714 was position 393] legal to introduce into broad system principle responsibility California’s law, right based continental or civil which would create a tort of action more restricted common displaces law limitations. Li, the In California Court the rule of contributory abolished Supreme holding that it must to the negligence, give doctrine way comparative doing, argument so that section negligence. specifically rejected law, had judi- codified common thus rendering it invulnerable held, cially implemented evolution. court conclude Specifically, “[W]e rule of that the liberal construction made code its own applicable to by Code, 4, (Civ. ante) terms together § discussed code’s peculiar Code, (see character a continuation of the law common Civ. also § ante) if require discussed so as to permit section be interpreted give dynamic expression to the which it precepts fundamental summarizes.” “Therefore, (Li, supra, Cal.3d foregoing for all of the reasons, we hold that section Code Civil was not intended to and preclude present does not judicial purposes action furtherance of underlying (13 it.” added.) Cal.3d at p. italics

Thus, to the according authority cited by plaintiffs ignored by majority, everyone whose intentional or cause to an- acts injury other must be held liable tort therefor unless there is some “statutory provision to the declaring exception fundamental enunciated principle Civil Code section 1714” or exception “unless rule general [such clearly supported public (Rowland, w] policy. [Citations.]” 108, 112, added.) 69 Cal.2d italics

The above noted cited authority, is more than sufficient to plaintiffs, that, support plaintiffs’ contention pursuant to section defendants can be held liable NIED unless defendants could establish a and/or statutory public policy from exception have liability. Defendants made no such effort before this court or the trial court.19 for

Support the plaintiffs’ reliance on section 1714 as a for their basis NIED cause of actiоn in may also be found the Burgess. Burgess, defendant that the argued should denied for her emo- recovery tional distress public on The policy grounds. California Court Supreme disagreed, stating: repeat, 19To contrary to the majority’s position, that Rowland and Li fact involved the “personal injuries” way in no is inapplicable “personal makes them distress here. Emotional (see, Witkin, Law, Torts, 1403, 1410,

injury,” e.g., 1409, Summary Cal. §§ 874-875, 879-881) and section 1714 itself “physical” makes no distinctions between Furthermore, “nonphysical” injuries, but applies Rowland “injuries” to general. no made distinction between “physical” injuries and “nonphysical” injuries. rule set determining liability negligence is the starting point “Our for 1714, (a): ‘Everyone responsible, in Civil Code section subdivision forth acts, to for an occasioned injury for the of his willful but also only result his his care skill the ordinary management another want of or by has, want of far as willfully so the latter person, except property care, We have stated himself.’ injury upon previously ordinary brought for for distress damages context of a claim emotional analyzing rule, exceptions to the statutory provision limiting this the absence ‘[t]n when only liability recognized are general principle imposing negligence for (Christensen, (1991)] Superior Court clearly supported by public policy.’ [v. 108, 885, [868,] (1968) 69 Rowland Christian Cal.2d citing 54 Cal.3d 496].)” (Burgess, supra, 443 P.2d A.L.R.3d added.) italics Cal.4th dissent, majority referred earlier bottom line is this: As to liability no automobile points statutory provision exempting to

opinion of section 1714 as construed companies operation insurance Rowland, There fails Burgess. any Li and is none. It also to engage meaningful any public policy as to existence of policy analysis to rule of for one’s justify exception liability would such an the general Instead, to does more than insist that it is negligence. majority nothing up factual extending in this provide the reasons for policy situation, that, to the any contrary never cites for its authority position 1714, Rowland, Burgess, section is not requirements defendants’ rule the harm justify exception burden to general caused one’s or intentional torts. words, relationship

In other incorrectly characterizing plaintiffs’ after nonexistent, characterizing defendants as after causes erroneously plaintiffs’ over nothing feelings of action as based on more than hurt settlement, defendants’ and after character- delaying speciously reasons for (as action izing plaintiffs’ against causes of the insurer opposed insured) action underlying being “purely” distress, i.e., loss,20 the by any majority opinion economic unaccompanied then on come with a attempts the burden place up public majority's persistent emphasis 20The distress as the “purely” emotional by plaintiffs allegations complaint claimed ignores plaintiffs’ of economic loss. Plaintiffs’ settlement, least stated that their facts from claim was worth at the amount of the and states they pressured accepting money by which it can be were less emotional and inferred that into they alleged liability distress delay. economic caused defendants’ unfair Because $295,000 a sum of at least reasonably years they three received clear almost before settlement, suffered at least economic their the use of that loss measured loss of offer, period sum for the a and denied unreasonably defendants refused to make settlement settle unreasonably delayed offering their insured’s and to liability for the accident then

241 coining their cause of under rather than policy justifying action section 1714 with exempting its own reasons to defendants from up public policy justify for their own As negligent and intentional torts. should apparent existing from the tortured and and analysis mischaracterizations of facts conclusion, this is tо leading majority to precedent up simply trying wit, desires, the result it no care in justify to that insurers have their duty third treatment of party claimants.

2. Principles Policy Fundamental Tort Law and Public Preclude This From Exempting Liability Damages Court Insurers to From Claimants Caused Insurers’ Negligent Acts Because the has short shrift to majority opinion given any policy public analysis, and has ignored the well-settled and fundamental totally principles tort law which form the basis any policy discussion vis-á-vis tort actions, the is following necessary. discussion Courts must follow the “fun ‘“ damental principle” section 1714 that “. whenever expressed . . one is person by circumstances placed such a with position regard another . . that if . he did not ordinary use care skill in his own he conduct... other, would danger cause of injury to the of the person duty a property ”’ arises to use care skill ordinary to avoid such danger.” (Tarasoff, 434, Rowland, supra, 17 Cal.3d at p. quoting supra, Cal.2d p. quoting Heaven v. (1883) Q.B.D. Pender Departure from justified principle “only upon ‘balancing of ”

number of (Tarasoff, 434), considerations’ supra, 17 Cal.3d at one p. ones major being the foreseeability that the failure use reasonable care will cause harm to (See, another. e.g., Burgess, supra, Cal.4th at pp. 1079-1080; 434; Tarasoff, supra, 17 Cal.3d Doe v. Roe p. Cal.App.3d 1543-1544 564].) “As a general principle, ‘defendant owes of care all persons foreseeably who are endan conduct, gered by his to all risks which make the respect conduct unreasonably dangerous.’ (Tarasoff, supra, 17 Cal.3d at pp. [Citations.]” 434-435.)

Instead of a reasoned application of policy factors a consideration of whether, clear, when under an insurance policy reasonably the extent claimants’ are injuries reasonably susceptible objective evaluation, insurers owe claimants either refrain a bad faith refusal to settle or an unreasonable delay fairly to settle attempting Moradi-Shalal, (See addition, claim. also Cal.3d at 305: prejudg- “In may ment interest be awarded attempted where an prompt, insurer has avoid a fair [Citation.]”) settlement. to exercise advantage faith as obtain a good negotiating and so to and equitably, the claim promptly care to settle attempting reasonable the bald conclusion Burgess support relies on Bro and to majority heavily of third kind has existed favor any that common law cause of action of no claimants insurers. against party below, Bro, the author of the which was authored by

As discussed here, relied The of Bro majority factually inapposite. portions opinion The majority flawed. analysis are dicta and its upon by majority used to deter- Burgess' s statement of the factors misinterprets completely Burgess that the court’s by stating mine a direct victim and then further errs the three is dictum. recitation of two of bases for authorities, I remind the reader that the Before those will addressing Court, Moradi-Shalal, ex- clearly acknowledged California Supreme maintainable and continued of common law causes of action viability istence it well insurers when said: by against claimants as as insureds automobile “Moreover, remedies, retain jurisdiction from administrative the courts apart in appropriate to civil or other remedies insurers impose against actions, fraud, common law based on such traditional theories infliction of distress, (as insured) either of contract or breach and to breach (46 at pp. faith and fair Cal.3d implied good dealing.” covenant of 304-305, added.) italics suggest Court did not

Contrary majority’s proposition, Supreme victims” of Moradi-Shalal that third claimants could never be “direct insurers, were wrongful unnecessary acts when such acts particularly insured, directed at оut the insurers’ duties to the and were carry specifically Further, the claimants rather than the to the contrary majority’s insured. refer that the fact did implication Court Supreme specifically NIED means that it intended limit infliction of emotional a claimant’s IIED, in distress cause of action view it is more my insurers recognized reasonable Supreme to conclude that because the Court has NIED, IIED it found some time the of causes of action both for and viability but instead unnecessary negligent” state “intentional specifically intended common law that both of conduct could form the basis of types actions claimants for infliction of emotional distress. against insurers

I return reliance on Bro Burgess. (maj. opn., to Bro and majority’s ante, 190, 204-205) Burgess (maj. opn., its pp. misinterpretation ante, 203-206) here are not are an effort to demonstrate direct for NIED. victims therefore are not able a cause of action to plead test is (a) This reliance is the Bro misplaced “two-pronged” for four reasons: dictum, (b) mere deficient it that there can Bro’s because assumes analysis be without “consensual” but preexisting “special” relationship, no continuing it that a be the ignores authority duty may also assumed law, the make (c) defendant or facts of Bro imposed by inapposite case, (d) Burgess, the majority’s interpretation the rejects holding Burgess be assumed a defendant or duty may law, well as the imposed by as arise from a between may relationship plaintiff, defendant and is simply wrong.

a. Bro’s Two-pronged.Test Is Dictum suggests Bro the two-pronged test for determination of whether a plaintiff has a cause action for NIED: Did at the time of the tortious conduct have a relationship consensual with the defend- preexisting (so (Bro, ant as to bring plaintiff victim”) within Bro’s of a “direct definition and, so, supra, 1416), if Cal.App.4th (2) was the p. defendant’s conduct, distress, which caused plaintiff outrageous so that it where, matter, to that level as a policy “rise[s] shall attach. [Cita- 1440-1441, (Id., at pp. deleted.) italics tion.]” Notably, Bro does not hold that its or must two-pronged test should be applied determining the existence aof viable NIED action. The Bro opinion 1402, to a “prescribed (Bro, refers test” Cal.App.4th p. added), italics “. . . first prong (id. we test recommend” at p. 1416, added), italics (ibid., “our recommended added), test” italics “our 1431, suggested (id. test” at p. added), italics “we suggest way decide these (id. cases is . . added), .” at p. italics . . we have “. synthesized in terms a ‘Black Letter’ proposition (id. . .” . at p. added), italics “under our (ibid., added), recommendation” italics and “. . . should our recommended (ibid., be approach added). used” italics Clearly, this so-called test (See Bro presented by as dictum. definition of dicta at fn. 27 on post,)21 21The lack of an in Bro holding actual two-pronged may test based on fact that while the appeal granting Bros’ summary adjudication from the of issues in favor of the defendant doctor as to their NIED pending, cause action was still the defendant doctor granted judgment i.e., toas their cause of malpractice, negligence. action for medical If the doctor’s conduct did not negligently cause cut to the face of the Bros’ child in the birth, process of her it is then difficult to alleged see how the Bros could have cause valid of action for NIED on a based direct theory observing bandaged victim reason of cut half an hour after the delivery. Lacking negligence, summary on adjudication Therefore,

NIED action for the doctor could have been affirmed such basis. there was no need suggested to create a two-pronged test ‍​‌‌‌‌‌‌​​​‌‌​​​​​‌‌‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌​‌​​‌‌‌‍to determine whether Bros were “direct victims” of the doctor’s negligence. nonexistent Bro’s Is Flawed Analysis

b. of the recommended prong the “direct victim” first the evolvement of whether, test, in each upon depending Bro 26 cases categorized supposedly case, consensual” that a implicit ruling “preexisting there was an or explicit defendants, which relation- the existed between relationship (Bro, supra, “direct victims.” would then make the plaintiffs ship exist in 1417-1420.) a relationship such pp. Finding Cal.App.4th cases, whether the Bro those cases based on categorized then further certain to other “nonadjunct” or “adjunct” emotional distress was claim for (Id. 1420-1437.) conduct claims. at pp. tortious of a way individual cases by than wade into Bro’s morass of Rather held, or I that of these cases explicitly not one analysis, simply repeat written on only basis relationship that a consensual the implicitly, preexisting referred can a “direct victim” or plaintiff which one conclude a claims. or “adjunct” “nonadjunct”

Furthermore, with “consensual” obsession apparent the Bro court’s that, in relationship” great in the factor was so “preexisting element analytic its consensual preexisting to fit into the bed of attempt procrustean its cases concluded, many post-Molien it because relationship prong, simply cited, between Burgess, relationship involved a consensual including cases it conduct, it could that and defendant before the tortious allegedly plaintiff NIED be consensual all infer that had to preexisting relationship (Bro, to be a victim. order for a to exist and a direct duty plaintiff actions However, post- 1415-1416.) not one these supra, Cal.App.4th at pp. or “consen- relationship” cases used the term phrase Molien “consensual ” sual. negate, reasoning studiously ignores, actively attempts Bro’s preexisting arise from a principle duty may well-established legal law, or be assumed may or it as a matter of relationship, may imposed a relation- preexisting defendant to the existence of regard without 1072-1073.) (See, ship. e.g., Burgess, Cal.4th Bro, in analysis post-Molien its and its catalogue classification (and on such then creation of a test based suggested two-prong cases its a that the existence of analysis) proceeds faulty premise preexisting only basis possible legal “consensual” is the “special” relationship consider a failure to finding legal duty. that defendant owed a This two of Bro’s fatal flaws. the other alternate sources is one to a scientist comparable failure look at alternate sources of effect—for studying wilting who is given example, plants—using that there is cause premise principle wilting plants—lack one would if watering. Using assumption, the scientist conclude that wilted, water, its had enough soil not received a conclusion which plant incorrect, would be than lack of water- scientifically given that causes other heat, disease, root may e.g., damage cause excessive ing wilting, systems imagine caused insects. It would be difficult to gophers with some noted as- anyone knowledge plants would make above sumption about the cause of wilting.

I find it difficult to understand how equally persons knowledge some of tort law could conclude that only by a direct victim is defined reference to (see the existence of a consensual with preexisting the defendant relationship 1415-1416), at Cal.App.4th the fact given Burgess, that court Bro relied for faulty its stated: “the label ‘direct premise, specifically victim’ arose in distinguish cases which for serious damages emotional are sought distress as a result of a breach of owed to the that is duty plaintiff law, ‘assumed the defendant or by imposed on the defendant as a matter that arises out of a relationship (2 between the two.’ at Cal.4th [Citation.]” added.)22 italics

The difficulty understanding Bro court’s studied exclusion of these other two sources duty the fact that a compounded by ago less than year the California Supreme Court issued its Potter v. Firestone & opinion Tire Co., 965, 984, Rubber 6 Cal.4th nature of the addressing the torts of NIED and IIED. As NIED “The stated: tort is a negligence, cause action which a to the is an essential element. [Citations.] law, defendant, That be duty may imposed by by by assumed or exist virtue of a special relationship. [Citation.]”

c. Bro’s Inapplicable Facts Make It Allegations Plaintiffs’ The majority’s reliance on Bro is also Bro misplaced factually because Bro, least, here. inapplicable Pursuant to the Donna holding Burgess, (the was direct Burgess victim court having held that obstetrician owes child, client a pregnant direct use duty to reasonable care her delivering includes, course, which duty a duty not to cause her negligently emotional distress by her injuring (2 fetus and child during birth). Cal.4th at pp. go 22It should without that saying section law statutory imposing 1714 is on all

persons, including insurers, automobile liability ordinary to exercise care avoid injuring i.e., person, another third claimants. Bro, Ms. Bro and Kim 1078.)23 But the distress suffered emotional father, child to their newborn injury was caused their observation of to them birth. when the child was presented after they here that alleged that majority suggested plaintiffs has nowhere else observing injury to someone emotional distress as result of suffered Rather, have alleged acts. negligent plaintiffs caused defendants’ were defend- they told that of were directed them—that complained acts liable, had they were told that ants did not believe the insured which the defendants failed and that it was their claims injuries, preexisting reasonably once were years settle for almost three words, the sense In other are “direct victims” defendants plaintiffs clear. dealings conduct involved defendants’ direct that defendants’ them, causing injury economic directly impacted distress, distress” which “purely type well as emotional Bro recovery continually emphasizes it is restricted.24 Burgess’s Duty Was Not Regarding d. Statement the Sources of Mere Dictum Bro, here, Burgess by

The well as the in majority misinterpret as court law as Burgess one of the entire rule of reading single constituting aspect i.e., victim,” is a a who had a consensual person preexisting to who “direct clear, with defendant.25As itself makes the Burgess presence the relationship not, of a or between or absence consensual preexisting relationship, and the be-all end-all of whether establishing defendant is not and plaintiff defendant owes a of due care to a duty given plaintiff:

“The ‘direct victim’ is found distinction between the and cases ‘bystander’ in the source the owed the defendant to the duty plaintiff. the child are 23Noting well-being that “. . . the mother’s and health of the emotional intertwined,” reali inextricably Burgess “physical held that because of these and emotional ties,” “[a]ny negligence during delivery injury causes to the fetus and resultant which mother, therefore, (2 anguish duty to owed to the mother.” directly emotional the breaches a 1076.) p. Cal.4th at then concluded claim for emotional distress The court mother’s (Id. ordinary action. simply damage compensation” malpractice was thus “an in an element 1077.) p. at did noteworthy lengthy “catalogue” twenty-six post-Molien 24It is cases that Bro's which liability theory, include nine cases a direct victim seven of which found NIBD on (22 1444.) upheld damages. emotional Cal.App.4th p. distress above, relationship which already 25As here did have a discussed defendants conduct, preexisted pronouncement majority defendants’ has allegedly tortious so this prior no implicit assumption two defects: the and erroneous here had factual ante, relationship 206), misreading of (maj. opn., p. explicit with defendants and the to a rеlation Burgess support majority’s position relationship, only that such a which, turn, ship, requisite duty “bystand creates the in “direct distinguishes victims” ante, 205-206.) (Maj. opn, ers.” cases, Legg with Dillon v. 68 Cal.2d 728 ‘bystander’ commencing 1316], Thing, in culminating P.2d 29 A.L.R.3d supra, question duty Cal.3d address ‘the circumstances which a seeks to recover witness to plaintiff damages percipient as a (Christensen, 884.) ‘all another.’ 54 Cal.3d at These cases injury in the arise context of emotional distress caused physical injury preexisting conduct of a defendant whom the had no plaintiff relationship, and to whom the had previously not assumed defendant beyond added.) In public (Ibid., care that owed to the italics other general.’ words, is bystander a defendant’s of a premised upon violation negligently cause emotional distress to who observe conduct people harm causes to another. limitless,

“Because in such cases the class of could be potential plaintiffs resulting out imposition of all proportion culpability defendant, of the has bystanders court circumscribed the class of a defendant whom owes a duty inflicting to avoid negligently emotional distress. These limits are set forth in ‘In the Thing as follows: absence of himself, to the physical injury impact distress should be if the recoverable plaintiff: closely related victim, the injury (2) is at the scene present event at injury-producing time occurs and is then aware that it causing victim and injury (3) as a result suffers emotional distress that which would be beyond anticipated (48 disinterested witness.’ Cal.3d p. [Fn. omitted.] contrast, “In the label ‘direct victim’ arose cases which distinguish damages for serious emotional are as a distress result of a breach of sought owed the duty is plaintiff by ’’assumed the the imposed or on defendant law, as matter a or that arises out a between the relationship of defendant two.’ of F., (Marlene cases, supra, 48 590.) Cal.3d at In these the set p. limits in 644, supra, F., forth Thing, 48 (Marlene Cal.3d have no direct application. 589, supra, 4; Christensen, 48 Cal.3d at fn. p. supra, 54 Cal.3d at pp. Rather, 890-891.) principles well-settled negligence are invoked to deter- of action, mine whether all elements a cause including present are in duty, of of a given 1072-1073, case.” 2 (Burgess, supra, Cal.4th at in first italics pp. added.) other original, italics

After recognizing the engendered confusion the Molien court’s by per- ceived failure to establish clear-cut criteria for a a characterizing plaintiff as “direct victim” rather a than “bystander,” the Burgess court continued:

“Nevertheless, Molien, other derived principles from 27 Cal.3d 916, are (1) sound: damages may inflicted emotional distress negligently

248 (2) absence and a cause of injury impact, be recovered the of or physical will inflicted emotional distress negligently action recover lie, recovery by bystanders, the notwithstanding imposed upon criteria arising relationship negligently a duty preexisting cases where a F., supra, 890-891; Marlene (Christensen, supra, at pp. 54 Cal.3d breached. fact, 590-591.) which defines it is this later [sic] principle 48 Cal.3d at pp. (Burgess, more.” signifies nothing the ‘direct victim.’ That label phrase supra, Cal .4th 2 at p. Burgess, 206 of majority

When last of the portion quoted by page this victim,” context, as opposed read it is that a “direct opinion, apparent its a care be whom the defendant owed anyone duty to a “bystander,” may “ the defendant or the imposed by because such ‘assumed duty law, of a relationship or [because matter of it out defendant as a arose] ” 1073, added.)26 (Burgess, supra, 2 between the two.’ Cal.4th at italics Bro, here, The clear ignore language and the court majority of independent defendant of care for a number duty owe may ante, it. (Maj. opn., reasons to it as “dicta” and referring by “rejecting]” dicta; law,27 a well-established 205-206.) It is not it is a rule of these well- majority’s rule of effort other “reject” law.28 strained is more evidence of how important established bases as dicta legal duty may through “A arise statute expression concept 26Analternative of this is that: of care Alternatively, general of the duty may premised upon contract. character activity parties or even the engaged, relationship in which the defendant between (J’Aire (1979) interdependent Corp. Gregory 24 society. nature of human [Citation.]” 799, 407, 60]; Shoup Cal.App.4th Cal.Rptr. Cal.3d P.2d Violette v. [157 611, 358].) Cal.Rptr.2d 619 [20 454, “dicta,” (6th 1990) 27Compare Dictionary (“Opinions Black’s Law ed. column a page judge embody specific of a case before which do not the resolution determination Expressions opinion go beyond court. court’s before the court and therefore the facts legal binding subsequent are of author cases as opinion individual views law,” (“A legal general precedent.”) page principle, with “rule/rule id. at column a authorities, usually expressed application, recognition in the form sanctioned .”) logical proposition. a maxim or . . 28See, Cal.3d e.g., Rapid v. Southern Transit Dist. Lopez Cal. 907], of a undertaking business “By voluntarily 710 P.2d italics added: carrier, common common plaintiffs from harm protect RTD assumed law Moreover, subject specific the hands became to the passengers. of their fellow RTD common use care mandatory by every on carrier to the utmost duty imposed California statute .”; Corp. diligence carriage McDonnell-Douglas . . v. passengers’ for its safe Coffee 551, 358, 50, omitted, 1366], added: 8 Cal.3d 557 P.2d footnote italics [105 employer generally duty prospective employees “An owes no to his to ascertain whether seek, duty, he he physically job they are for the but where he is liable fit assumes if performs obligation employer an is derived negligently. by assumed [Citations.] Torts, general one principle expressed 323 of the Second section Restatement care”; v. perform who Mexicali Rose voluntarily undertakes an action must do so due 617, 1292], 145, Superior (1992) 1 Cal.4th italics added: Cal.Rptr.2d Court 822 P.2d [4 duty to it its never be held to owe a is to reach desired result: that insurer care to a third claimant. conclusion, have stated sufficient facts to establish that plaintiffs them mentioned duty defendants owed under all three bases for duty First, Burgess. relationship preexisted had a plaintiffs with defendants i.e., act, by defendants’ tortious that of known defendants allegedly persons be a claim had asserting against defendants’ insured because the insured Second, rear-ended negligently imposes them. law defendants as insurers and care plaintiffs favor of as claimants exercise reasonable Third, in the (See 1714.) selling automobile claims. handling liability § California, policies automobile insurance defendants here liability voluntarily assumed the to act care in managing with reasonable their automobile liability insurance business so not to harm as making claimants against claims the defendants’ insured under an automo- bile insurance liability between and the policy defendants insured.

e. Policy Support Public Do Excepting Considerations Not Insurers From the General Ordinary Common Law or Civil Use Due Duty to Care, but, Contrary, to the They Liability Mandate Such Apply That Insurers29 it,

Although the frame I majority opinion does the issue before clearly believe that the ultimate issue to be addressed whether determining can allege a NIED cause of action is against defendants whether an automobile insurance excepted company from a common law or civil duty claimants, of ordinary care to once such claimants the insured and their injuries and losses are made known to the insurer. restate,

To contrary to the opinion, majority policy no reasons need publiс alleged plaintiffs for the imposition of basic tort for negli gently caused emotional distress. Such imposed by section 1714. Rather, it is defendants’ burden to point to reasons to policy exempt them from that broad scope liability. (See Bily Young Arthur & Co. Cal.4th Cal.Rptr.2d P.2d “Under rule 745]: (a)], subd. an individual [§ who has acted is liable all negligently reasonably foreseeable injuries caused To negligence. this rule general liability, courts will make only exceptions those that are ‘clearly supported by public policy.’ Under the fundamental principle [Citations.] [¶] “ warranty as to the fitness of food is warranty, not a is an obligation contractual ‘but imposed by law protect public health.’ [Citations.]” 29This discussion should not be negate construed that a my earlier observation reasonable reading of Moradi-Shalal reveals that the already confirmed the Supreme Court has existence of such a common law cause of action. 250 the of accountants are liable for all

governing scope negligence liability, their caused the of reasonably injuries by negligent performance foreseeable duties. This would include to foreseeable necessarily injuries professional If are to be users like the this case. accountants dispen- of this granted special dispensation general scope liability, from Chris- See also justified public sation must be considerations of policy.” 79, 868, (1991) 820 Superior v. Court 54 Cal.3d 885 Cal.Rptr.2d tensen [2 181].) P.2d determining starting point

As has noted courts: “Our by many been 1714, section liability negligence is the rule set in Civil Code for forth willful (a): for the result of his ‘Everyone subdivision is responsible, acts, for an occasioned to another his want of injury ordinary but also care or skill of his so far as management person, except property has, care, willfully brought injury upon latter want of ordinary of a claim for analyzing himself.’ We have stated the context previously statutory provision absence a for emotional distress ‘[i]n rule, limiting exceptions general principle imposing to the negligence recognized only clearly supported by public policy.’ are when 885, (Christensen, (1968) 54 Cal.3d at Rowland v. Christian supra, citing p. 108, 1079, 2 .)” (Burgess, supra, 69 Cal.2d 112 . . . Cal.4th at italics added; see also Ahem v. Dillenback Cal.App.4th [1 action, “In the a Cal.Rptr.2d negligence determination typical 339]: there is no rise to a that the duty giving essentially conclusion weight departure warrants a Civil Code section 1714. public policy added.]) [Citations.]” [Italics held determination whether case the defendant will be specific

liable tort to a third not in a matter of person, privity, policy involves the balancing (Biakanja Irving various factors. “ 1358].) Cal.2d P.2d 65 A.L.R.2d The factors include ‘the of harm that the foreseeability degree certainty plaintiff, injury, suffered the closeness of the connection between the defend- suffered, ant’s conduct and the the moral blame attached to the injury conduct, harm, defendant’s future the extent policy preventing burden to the defendant and the the community consequences imposing breach, to exercise care with and the resulting liability availability, (Chris- prevalence cost and of insurance for the risk involved.’ [Citation.]” Court, 868, 885-886; Superior Burgess, supra, tensen v. 54 Cal.3d 1079-1080.) Cal.4th at pp. above,

As discussed Court cases hold that continuing series of Supreme section 1714 establishes have fundamental that all persons principle and, injuries a to exercise care to avoid to others ordinary causing statutory exception, possible exception absent other Rowland, is one based on the court indicated that principle public policy. the above-noted are used determine whether an policy exception factors should made. It stated: “A from this fundamental departure considerations; major involves the principle balancing of a number of [being Biakanja].” (69 ones those Cal.2d at factors as above from quoted 112-113.)

Other Court refer Supreme being begin- to section 1714 as opinions i.e., in the ning determination of use these point negligence, they same factors to determine whether or not there is a For duty. example, Court, Superior Christensen v. supra, 54 Cal.3d the court its approached analysis from the that the that the conduct perspective asserting plaintiff and, therefore, of another breached owed to the court concluded, “. . . public considerations are relevant in policy determining whether a particular plaintiff may recover for emotional distress.” (Christensen Court, Superior supra, 54 Cal.3d at As stated Alameda, Thompson v. County supra, 27 Cal.3d at 750: “It is a page fundamental proposition tort law that one is injuries liable for caused however, said, a failure to exercise reasonable care. We have consid- the existence ering ‘duty’ given case several factors consid- require eration including factors as quoted Biakanja.]” [those above from

Thus, irrespective of defendants’ failure to the above enumerated apply policy factors so as to justify them exempting general statutory duty from the claimants, care ordinary third I plaintiffs as will now consider those same apply factors to ascertain whether defendants had such a duty (either law) statutory common when submitted their claims to defendants and thereafter.

After balancing above discussed factors each other policy light of the alleged facts in the complaint, my conclusion is that such a duty law, exists and has its source in common as well as in section further such if analysis demonstrates that the defendants had attempted establish their from a exemption duty under section would have failed.

i. Foreseeability That Failure Ordinary to Use Care Defendants’

Would Cause Harm to Plaintiffs Although of a kind foreseeability “[t]he of harm particular plays very significant role [determining whether there should be a from the departure ordinary prevent rule that have a to use care to duty all general persons injury to others as a result of their conduct] (see Dillon v. Legg ^[1968] 728, 739), a matter of determining a court’s task—in ‘duty’ Cal.2d ... [as particular reasonably not to decide whether a was plaintiff’s injury law]—is conduct, in particular but rather to evalu- light foreseeable of a defendant’s is the conduct at issue ate more whether generally category may in kind likely experienced liability result the of harm that sufficiently (Ballard (1986) v. Uribe on the appropriately imposed negligent party.” 564, 572-573, 624].)30 41 Cal.3d fn. 6 715 P.2d Cal.Rptr. [224 ordinary if foreseeability terms of this of the harm general concept exercised, liability it is care is not foreseeable automobile patently in will insurance that a an automobile accident companies person injured the the third investigate resulting on tortfeasor’s automobile insurer to rely manner, in and claim and to make a competent prompt and prompt Barrera (See, e.g., reasonable settlement offer within the limits. policy Farm Mut. Co. State Automobile Ins. (1969) Cal.2d 659 source 456 P.2d “The rule that an insurer must act finds its promptly 674]: quasi-public in nature the business and the reasonable insurance (Id. general public.'1'’) and the italics the at expectation applicant p. added.)31 factor, purely 30As to the the that “when claim is for “foreseeability” majority claims the ante, distress, at foreseeability essentially (maj. opn., view that useless” is our is ante, 201), language Burgess. pp. on interpretation Thing (Maj. opn., based its in and However, 201-202.), simply foreseeability alone cannot be used those cases stated that and, duty inferentially, foreseeability controlling determine is not the factor. Foreseeabil however, ity, against public policy is an to be other the important factor balanced factors in Center, 666, 676.) (See analysis. Shopping Ann M. v. Cal.4th Plaza Pacific quoted holdings v. State majority language, subsequently 31The avoids this in Barrera facts, Co., supra, by distinguish on its purporting Farm Mut. Automobile Ins. Barrera by implying holdings only would if here had obtained these be relevant Hester, insured, the

judgment against pay had then declined to Hartford’s and if Hartford investigate issuing him judgment, insurability or if Hartford had failed to the Hester before policy. However, holdings liability duties to various Barrera as to automobile insurers’ public judgment were had general not limited to situations in which a claimant obtained investigate the insured: its specifically the Barrera court held the insurer’s issued, insurability the time the policy insured’s ran from the time the insured’s not from 669-670.) (71 Cal.2d injured judgment against claimant obtained a the insured. policy holding nothing specific public reasons behind this Barrera have do with Barrera, facts of insurers procedural everything to do with the role of automobile today’s society require laws drivers responsibility and vis-a-vis the financial They distinguished the basis of the away obtain automobile insurance. cannot be on procedural upon by majority. relied differences Curiously, holding complete that the “is a refutation majority posits also Barrera injured ‘the insurance owes a to the claimant’ company contention that If, asserts, holding in Barrera majority emotional distress cases. [Citations.]” care investi- ordinary A reliance an insurer’s exercise of claimant’s because of: foreseeable and settlement gation negotiations particularly drivers laws which require the existence of the financial responsibility insurance, to obtain behind public policy existence of case law which out points (see, Bar- e.g., injured compensated laws of sure are making persons Co., “The supra, 71 Cal.2d 659:

rera v. State Farm Mut. Automobile Ins. insurer the insured is that the of both the and expectation public reasonable [Citation.]”) will its commitment: to insurance. duly provide basic perform 669, (Id. added), italics

(3) role as a government-regulated, the automobile insurer’s liability as well general service with its concomitant duties to the public entity public (1994) (see v. Garamendi 8 Cal.4th Century as to its insured 20th Ins. Co. 566]), P.2d Cal.Rptr.2d (4) through the for those no injured to public policy provide compensation own, fault of their

(5) to the not to the law judiciary’s responsibility interpret applicable in the automobile insurance a manner “which would serve liability (see, financial interest the and thwart that public policy” of insurer directly Co., Barrera v. State Farm 71 Cal.2d e.g., Mut. Automobile Ins. 8, 9, 10, therein), 669-682 and and fns. and 790.03, (6) the as unfair existence of Insurance Code section brands business the the practices unreasonably delays of conduct which pattern of, in injured or results a total refusal to settlements to payment pay, claimants. in

It is also that the failure handle claims a reasonable foreseeable manner, i.e., faith, in in financial harm to and will result promptly good claimants, their medical and injured who will have had to personally pay damage most at the of not or not property expenses, likely paying expense if on time other had no paying day-to-day expenses, particularly medical deduct- coverage high or health insurance or limited coverage, ibles. It is or even wages also foreseeable that claimants have lost may turn, as a the foreseeable reasonably result of it is employment injury. NIED, nothing to do with a third because “Barrera had inapplicable party to third claims for [NIED],” refutation” of the such holding cannot be a obviously “complete claim for then above noted contention. will coupled physical injuries, financial when problems, espеcially emotional distress to the claimants. injured cause Furthermore, the harm rises increasing proportion foreseeability the and the liability measured obviousness length delay claimant; thus, in as suffered a case such seriousness here, where, above, defendants, alleged having the one discussed insured, (2) their reasonably clear knowledge injuries and mental economic distress significant degree physical, straits, foresee reasonably dire financial could plaintiffs’ plaintiffs, the insured’s misrepresentation plaintiffs concerning three the failure for a of almost preexisting injuries, period plaintiffs’ plus settle years good fairly faith to promptly, equitably attempt claim, of severe would cause harm form and loss of of an settlement. monetary emotional distress the use equitable Thus, foreseeable, if a engages it is defendant my reasonably opinion, ' here, alleged likely that the to result type conduct conduct Therefore, harm defendants’ kind of here. allegedly experienced by plaintiffs in of to is one favor ability possible weighs foresee the harm factor in who such conduct. imposition liability engaged defendants have Actually Injuries, ii. Degree Certainty That .Suffered Plaintiffs and and

iii. Closeness Between Conduct Connection Defendants’ Injuries Plaintiffs’ and the allegations certainty state complaint connec-

financial show direct clearly distress suffered injuries tion between those and defendants’ conduct.

iv. Blame Conduct Moral Attached to Defendants’ recited Defendants’ policy conduct is alleged proscribed public However, 790.03, if even Code. (h) section subdivision of the Insurance exist, 790.03, morally it is (h) my opinion, section subdivision did not false statements for blameworthy make knowingly recklessly for it with rationale benefiting by providing purpose speaker which the obligation speaker to settle a valid business refusing attempt conduct had to assume This freely bargained monetary compensation. for injure will when that such conduct particularly egregious is foreseeable was whom that the obligation obligation was paid, given to be and medical expenses. cover income designed promptly lost party’s Policy Preventing Such Harm tort is to deter It is that one generally recognized purpose cited (Burgess, supra, 1081 and authorities future harm. Cal.4th there.) I the reasonable believe that a rule of fulfills insured that a general injured by expectations public person the insured’s motorist will receive equitable recompense prompt when the known to damages insurer suffered circumstances insured insurer are such that a reasonable would conclude that the person for, of, at fault and a cause such wholly partially in handling insurers with an incentive use care provides adequate ordinary claims, such financial incentive for persons’ given a particularly contrary claims, merit, insurers “to their feet” drag resolving regardless such necessary to avoid the harm alleged by plaintiffs.32

Without a will remedy wrongs, injured some claimants potential claims, continue to and unreasonable of such experience improper handling with the increased in their financial affairs. resulting Negative disruption effects on other of their cases ripple aspects lives will ensue and some there will also be a concomitant cost terms of increased society demands on public resources such victims. 573, Holmgren 1992) 32In (9th v. State Farm Mut. party Auto. Ins. Co. Cir. F.2d a third claimant judgment suing recovered a pursuant existing statutory after the insurer to a then right of action negotiations. insurers for bad underlying faith settlement The facts of that case are similar to alleged by Krupnicks: liability those the the insured’s was clear soon accident; attention, after the the clаimant suffered injuries requiring job medical and lost her as a injuries; result of her spouse the claimant’s and her unemployed, after claimant lost

job, their home upon; was foreclosed the pressures regularly claimant’s fiscal were commu insurer, foreclosure, nicated to the which offered a just small amount in settlement before the accident, and which did not years offer another settlement until two the second after the on day of trial. court, favor, reviewing affirming The judgment the in the claimant’s noted: established, doubt, case, coverage liability game “When and beyond any are as in this strong against the begin. legitimate the weak can A can be claim known to be valid and settled for far less than its by great enough actual value if the need for funds the victim is and the insurance company enough knowledge is obstinate of that fact to force to use its acceptance theory game position lesser sum. The in a where put is to the victim anything nothing. is better than 33-18-201(6) provides Section that an Code Ann.] [Mont. obligation insurer’s to settle a liability reasonably claim has become promptly arises when clear. Most companies insurance recognize practices prompt favor that sound business claims, payment legitimate (976 of valid and but bad faith and more.” this record establishes F.2d at p. original.) italics in to Consequences on and the vi. Extent Burden Defendants Imposing Companies Duty Insurance to Community on Liability Its Resulting Exercise Reasonable Care With for Breach Consequences Community

a. to citizenry there are no to the my negative consequences opinion, the above discussed California from insurance meet requiring companies liability One of the most reasons for popular limiting standard of care. businesses, course, liability, some limitation on has been without consumer, and the costs of will be litigation simply passed tort costs insurers which will majority here has assumed that increased practices them unreasonable settlement holding flow responsible along will be to the insurers’ party policy vis-á-vis third claimants passed ante, 204.) (Maj. holders in the form of increased premiums. opn., However, financially insurers for unreasonable settle- making responsible ment act incentive businesses to would as an for such practices presumably matters, exercise care in and reducing litigation thus greater potential would reward those insurers who acted marketplace costs. then drivers, down, thus who presumably their costs because reasonably kept insurance, law would seek are automobile compelled purchase buy policies coverage. with the lowest available the best premium Furthermore, making insurers positive consequences there are strong their vis-á-vis third bear costs of and intentional torts claimants, in that are public, injured by wrongful members of who insured, fairly conduct would may they compensated of an be assured that in a manner insurance who are timely engaged public companies, public service to serve needs of the and for service activity particular (See Deukmejian reasonably are Ins. Co. v. compensated. Calfarm fn. 5 771 P.2d 48 Cal.3d 816 and 1247] holding that insurance must be of insurance so rates set commissioner return; as to insurers earn a fair reasonable see also 20th permit Garamendi, Century Co. v. Cal.4th Ins. risks, in the and companies insuring against

Insurance are business of Farm (See their Barrera v. State Mut. presumably set rates accordingly. “ Co., supra, companies Automobile Ins. 71 Cal.2d at 669-670: ‘Insurance ”) . .’ Allowing are of risks for . engaged running pay; business insurance negligently delay paying, legitimate refuse to companies pay, after due consider- business which were foreseeable obligations reasonably (as ation of the majority) by the risks involved cannot be does cоndoned third insurers as an unwarranted characterizing party against actions such can ever be the liability, by denying of tort that such claimants expansion direct victims of can it be condoned assert- negligent insurers’ acts. Nor here, ing, as does that “Insurance exist majority companies provide insureds, critical financial the risks their not to salve indemnity for of third feelings of claimants.” displeased party clear, laws, It is under mandatory our financial as well as under Code, California’s Insurance that insurers exist and are allowed to do business California provide their insureds with financial peace mind, but to their with financial provide persons injured by insureds for their recompense injuries a reasonable and faith manner. good Just as public policy mandates that undertake the of their parents support children, own that spouses undertake each other’s support, employers, fault, cost, insurance, regardless of bear the workers’ through compensation injuries work-related that tortfeasors bear the cost of employees, injuries they have caused to others conduct or nonconduct—so wrongful that, at least in such part, burdens do not fall too upon general public—so public policy mandates that insurance undertake the companies burden here, and fairly timely those claims settling alleged as when the insured’s liability is reasonably clear and the claimants’ are damages reasonably cover, ascertainable and which have contracted to for a rather price, than allowing costs and expenses the claimed encompassed by claimants, and, cases, to fall on the shoulders of the injured some on the doctors and whose will hospitals bills the welfare go unpaid, systems turn, whom the injured parties may forced to on the ultimately taxpaying public.

b. Burden on Defendants The burden placed on defendants as insurers them to by requiring comply with a general standard ordinary care in the handling reasonable payment claims is not greater than the burden on all other imposed businesses, individuals, well as to use such care management affairs, their so as not to harm others. Availability,

vii. Cost and Prevalence Insurance the Risk

Involved The record does not reveal the existence of insurance which is any available to insurers to insure them their risk of of a third mishandling insurance claim. But the existence or nonexist- ence of such insurance should not preclude injured holding claimant from in handling exercise care accountable when it does not reasonable insurer and harm the claimant. Automobile the claims causes settling thereby reserves, assets, subject regu- are including risk insurers whose casualty Commissioner, the Insurance pursuant lation of the California Insurance law, the insurance implement regulations Code and state promulgated coverage for specialized all would be able to insurance acquire likelihood a fair premium. such risks at public policy foregoing applicable consideration

Based factors, have sufficient facts alleged it is my opinion plaintiffs 1714 were duty civil under section that a common law establish causing plaintiffs, care ordinary defendants to exercise to avoid imposed on claimants, defend- resulting third emotional distress alleged as are to establish them ants’ and inactions. These sufficient allegations actions I facts to conclude that have stated sufficient direct victims. breach caused and such allege defendants breached negligently them distress resulting damages.

Ill

Conclusion view, cause allege have stated sufficient facts to my NIED, court erred IIED and the trial action for and cause of action ‍​‌‌‌‌‌‌​​​‌‌​​​​​‌‌‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌​‌​​‌‌‌‍as to all causes defendants’ motion on the judgment pleadings for a granting I reverse. amended would complaint. action stated first

Case Details

Case Name: Krupnick v. Hartford Accident & Indemnity Co.

Court Name: California Court of Appeal

Date Published: Sep 9, 1994

Citation: 34 Cal. Rptr. 2d 39

Docket Number: E006810

Court Abbreviation: Cal. Ct. App.