Pringle v. Robertson
465 P.2d 223
Or.
1970
Check Treatment

*1 Argued September 10, 1969, February 11, petition affirmed rehearing reargued September 9, 30, 19701, allowed October opinion April 14, former adhered to Appellant,

PRINGLE, ROBERTSON, Defendant,

HARTFORD ACCIDENT AND INDEMNITY

COMPANY, Respondent.

465 P2d 223 483 P2d 814 Natta, George G. Van St. Helens, argued the cause him on the appellant. briefs were Van St. Petersen, Helens, Natta & and William F. Schulte, Portland. Peterson,

Edwin J. Portland, argued the cause for him on the respondent. With brief were Charles R. III, Tooze, Holloway, Powers, Kerr, Tooze & Portland. Peterson,

390'

Before Chief Justice, Perry, McAllister, O’Connell, Denecke Goodwin,* Holman, Sloan, Justices.

HOLMAN, J. personal injury judgment

Plaintiff recovered a in Robertson the amount of $170,000 defendant company insurance refused an offer after defendant’s policy which was the limits de $5,000, settle to liability policy. being insurance Defendant fendant’s attempts judg his now to collect insolvent, garnishment proceeding against by bringing a ment company. He seeks to defendant’s “property” the insurance in hands of namely, belongs to claim which insured, which allegedly has his insurance com defendant pany failing and bad faith to settle trial court ruled limits. The within the subject garnishment, sustained the was not company’s plaintiff’s garnishee-insurance demurrer to proceedings. allegations, and dismissed appealed. question to be decided this case is

The sole against an cause of action such a upon subject levied is statutory proceed- purely is Garnishment question speaking, present strictly ing. Therefore, interpretation. Oregon’s statutory However, one light problem, much as shed do not statutes property” only they to “all other and “other refer 29.170(3). property.” personal 29.140 and ORS authority judicial All in the United States is to * resigned 19, Goodwin, J., December 1969.

391 subject garnish the effect that such a claim is not Casualty, v. Aetna ment. Steen 157 401 P2d 99, Colo (1965); (1 Story) 254 Del Parsons, Stilwell v. 51 342, (1958); Shelby 145 A2d 397 Jordon v. Mutual Insur Company, (Fla 165); App ance 175 233 So2d Powell App2d v. Prudence Mut. Ill Co., Cas. 88 232 NE 343, (1967); Kirkendall, 155 Paul v. 6 Utah2d 311 P2d 256, (1957); Murray Mossman, v. 56 Wash2d 909, (1960); Seguros Tepeyac, Compania P2d 985 A., S. (5th 1965). Bostrom, Mexicana v. 347 F2d 168 Cir authority Plaintiff admits can cite he no case as direct position. for his following cases hold that the has no

independent cause of action own de company: Fidelity Casualty fendant’s insurance & (Okla 1967); Co. New York Southall, 435 P2d 119 Exchange, Utah 2d Ammerman v. Farmers Insurance (1967); Seguros Tepeyac, 430 P2d A., S. Compania Seguros de Mexicana Generales v. Bostrom, *3 supra; v. Chittick State Farm Mutual Automobile Ins. Supp (D 1958); Co., 170 F 276 Del Tabben v. Ohio Casualty Supp (ED Ky Co., Insurance F 1966); 250 853 Wessing Indemnity American v. Co. Galveston, of (WD Supp 1955). Tex., 127 F Mo Also see R. Liability Responsibility Insurance and Keeton, (1954). L Settlement, 1136, 67 Harv Rev allowing injured party rationale for not The the alleged the the of cause of benefit action for the in- always surer’s misconduct is not the same. Most that an insured’s the cases hold cause of action company bad and/or failing plaintiff’s to settle claim sounds in tort. garnishment say cases which The so hold that an un- subject liquidated garnishment. tort claim is not to garnishment say of the cases The balance that it does alleged the claim make difference not if it is a con- even because, in contract is in tort or subject garnishment since not to it is claim, tract yet been established. Some faith has fraud or bad garnishment the cause of cases also hold that the and, therefore, of defendant in the hands is action subject garnishment, it cannot can be if it even by garnishing the insurance reached exposure. They has is an the that all hold plaintiff has in- that the no hold cases which against the insurance com- dependent of action cause stranger plaintiff say is a to the rela- pany tionship insured and the insurer. Most the between say plaintiff the could not also that cases of these injured by of the insurance the conduct have been received company, event, because everything received had there have been he would greater plus for a sum. settlement, alleged cause that defendant’s contends “prop the action of erty” meaning statutes within all-encompassing “property” term and is an because capable of action is such a cause we held because Fidelity assignment General Insurance in Groce (1968). P2d 554 In Company, Groce 252 Or assigned his claim for the in defendant insured within the limits to the settle failure surer’s assignment upheld and al injured plaintiff. We bring action the insurer an lowed securing attorney purpose For claim. on the 736.325, ‹ we held that under ORS fees on essentially the insurance contract. action *4 ‹ by Oregon amended, Laws Changed, 743.114 to ORS as 359, 371. ch. § grounded Whether the claim is in tort or in con- capable tract and whether or the claim is of as- signment, policy why there a further reason by garnishment. claim cannot reached relationship bears more no to the insurance contract any judgment than does other creditor defend- by ant. No owed insurer to the injured by under the contract nor was plaintiff’s only insurer’s failure to settle. Therefore, judgment interest is that of a creditor of the insured plaintiff’s judgment might just defendant. The as well pay have resulted from defendant’s failure to a any obligation. contrary note or from other It is permit of the law to a third who has no direct interest the cause of action to foster liti- gation Regardless of the kind involved here.

whether the claim is considered one contract or in genesis negligence, tort, of the claim is bad faith or upon parties or both. The law frowns with no promoting litigation direct interest kind of this gain. This is the preventing reason for the rules champerty and maintenance. assignment

In this case, defendant made no of his any way claim, nor has he indicated in other that he approves by or authorizes the plain- accusations made possible tiff the insurer. If plain- it is prosecute tiff to and then defendant’s assignment by without an or other indication defend- prosecute ant that he wishes to judg- the claim, may ment do the alleged creditor same as judgment claim held debtor which is based on or bad faith, whether or not the prosecute wishes to debtor it. The result would be legally champerty enforced form of in actions which negligence. are on fraud and following based *5 Ex Insurance Farmers quotation Ammerman v. from appro (1967), is change, P2d 19 Utah2d priate : ** policy if a law to is not the It party litigation. has been encourage wrongfully Even may number of there prefer why to let personal matter he would reasons privi- bring drop deciding The a lawsuit. than to up should be

lege him and interest to do so inject up to some at 578. 430 P2d the matter.”

into is affirmed. trial court ON REHEARING argued the cause for Schulte, Portland, William F. appellant rehearing. him on the briefs were Helens. Petersen, Natta & St. Van *6 argued reargued and Peterson, Portland, Edwin J. respondent. him on the briefs were the cause Tooze & Powers, Kerr, Peterson, Portland. Tooze, Justice, Before Chief O’Connell,* McAllister, Howell, Justices. Tongue, Denecke, Holman, HOLMAN, J. petition rehearing. pe

Plaintiff filed a reargued. and the case was was allowed tition Plain stating were in that we mistaken tiff asserts in our judicial original opinion authority that there was no position. making isHe correct. We did err for his The case of Shaw v. Botens, the statement. 403F2d 150 1968), (3rd which was decided about the Cir time the by present proceeding was first heard this court, authority position. for his give right the does

Shaw prosecute the defendant’s claim because has the in- * participate J., O’Connell, C. did not in the decision of this case. right policy. the insurance It con-

terest or under right Pennsylvania give that the strues law to injured plaintiff only judgment creditor of the as a other creditor defendant. Plaintiff concedes right the to assert the claim who would have same prior levy. The is that the had a rationale Shaw right defendant’s the insurance assignable and is and that arises out of contract the equitable assignment operates as an rights against debtor’s discuss whether The case does not it is de- to let some determine sirable whether the insured should assert that the insurance negligent guilty company has been or of bad faith in fading him. settle the claim good public policy, and we If it is believe it is, parties to decide whether such not to allow third accu- by way judicial proceedings, should made sations duty seem to be irrelevant it would of care implied good the law because of a imposed duty law whether the or contract pa- A doctor’s relation of contract. with his absence lawyer’s relation with his client are tient and a con- relationship, this because of tractual, and, law good any, imposes care and faith. if Pew, *7 lawyers that claims doctors and assert would garnishable malpractice should be and we are un- distinguish implied obligations between of able lawyers good to exercise care and doctors present those duty” “implied contractual is the If instance. “sesame” garnishment, may opens door it become that important drafty It is within. slightly that the law not attempt to reach in an perverted what, in this case, a desirable result to be when seem there are would distinguished many cannot be similar situations which sought be undesirable would and in the result which inappropriate. important urged matter It has been protection persons in auto- concern is the however, It must be remembered, mobile accidents. it owed breached no which that the insurer has injured plaintiff injured plaintiff, to the was not harmed the insurer’s failure settle. Had injured plaintiff the case would have settled, been money ultimately it did receive. received no more than the insurer’s failure settle could have Therefore, plaintiff. cause loss to E. Keaton, been the Eesponsibility “Liability Insurance and for Settle- (1954). Harv L Eev ment,” 1136,1176-177 original opinion. We adhere to our