Yan Fang Du Ex Rel. Joon Hak Kim v. Allstate Insurance ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAN FANG DU, individually and as 
Assignee of Joon Hak Kim,
Plaintiff-Appellant, No. 10-56422
v. D.C. No.
ALLSTATE INSURANCE COMPANY;  2:08-cv-06301-
DEERBROOK INSURANCE COMPANY, a GW-PJW
subsidiary of Allstate Insurance OPINION
Company,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted May 11, 2012*
Pasadena, California
Filed June 11, 2012
Before: Harry Pregerson and Susan P. Graber,
Circuit Judges, and Edward M. Chen, District Judge.**
Opinion by Judge Chen
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
6575
6578 DU v. ALLSTATE
COUNSEL
Andrew N. Chang, Esner, Chang & Boyer, Pasadena, Califor-
nia, for the plaintiff-appellant.
John T. Brooks, Luce Forward Hamilton & Scripps LLP, San
Diego, California, for the defendants-appellees.
OPINION
CHEN, District Judge:
I. OVERVIEW
Appellant Yang Fang Du brought this suit against Appellee
Allstate Insurance Company and its subsidiary Deerbrook
Insurance Company (collectively “Deerbrook”) for breach of
the implied covenant of good faith and fair dealing. Du was
injured in an accident caused by Deerbrook’s insured, Joon
Hak Kim. After Du received a judgment against Kim in the
amount of $4,126,714.46, Kim assigned his bad faith claim to
Du.
Du brought the instant suit against Deerbrook, arguing that
Deerbrook breached the implied covenant of good faith and
fair dealing owed to its insured Kim when Deerbrook did not
attempt to reach a settlement of Du’s claims after Kim’s lia-
bility in excess of the policy limit became reasonably clear.
Du appeals the district court’s rejection of Du’s request to
instruct the jury that it could consider Deerbrook’s failure to
effectuate a settlement in determining whether Deerbrook
DU v. ALLSTATE 6579
breached the implied covenant. We conclude that Du’s pro-
posed jury instruction is consistent with the law but that there
was no evidentiary basis for the instruction. Accordingly, we
affirm the district court’s judgment.
II FACTUAL AND PROCEDURAL BACKGROUND
1. Du’s 2006 Personal Injury Lawsuit Against Kim
On June 17, 2005, Joon Hak Kim was involved in an acci-
dent when his car collided with another vehicle. All four
occupants of the second vehicle — Appellant Yan Fang Du,
Li Jie Wang, Wan Hai Feng, and Shuo Feng — sustained
injuries. Kim’s insurance policy issued by Appellee Deer-
brook had a liability limit of $100,000 for each individual
claim, with an aggregate maximum of $300,000 for any one
accident.
Over the next several months Deerbrook corresponded with
a number of lawyers who in succession represented Du. Deer-
brook attempted to obtain medical documentation from Du
and a statement from Kim but was not successful. Notwith-
standing the lack of cooperation by Du and Kim in providing
the documentation requested, Deerbrook eventually evaluated
the claim file on February 15, 2006. Deerbrook was aware
that there was a claim of serious injury by Du and accepted
Kim’s liability.
No settlement demands or offers were made until June 9,
2006, when Marc Katzman, Du’s lawyer, submitted a
$300,000 global demand for all four plaintiffs. For the first
time, Du documented her medical costs at $108,742.92. The
demand also listed medical costs to Wan Hai Feng at
$6,676.00, Shuo Feng at $13,274.00, and Li Jie Wang at
$13,809.00.
Anna Harcharik, Deerbrook’s adjuster, told Katzman there
was insufficient information about Wan Hai Feng, Shuo Feng,
6580 DU v. ALLSTATE
and Li Jie Wang and suggested settling Du’s claim separately.
Katzman rejected the suggestion and indicated that Deerbrook
had to pay the full $300,000 policy limit and settle all claims.
In August 2006, Katzman rejected Deerbrook’s $100,000 set-
tlement offer to Du as “too little too late.”
On October 31, 2006, Du filed a personal injury lawsuit
against Kim, and received a jury verdict of $4,126,714.46.
Deerbrook paid the $100,000 available under Kim’s liability
coverage to partially satisfy the judgment. Kim then assigned
his bad faith claim to Du in exchange for a covenant not to
execute.
2. Du’s Claim Against Deerbrook
In September 2008, Du, exercising the assignment of Kim’s
bad faith claim, filed suit against Allstate Insurance Company
and Deerbrook, alleging that Deerbrook breached the cove-
nant of good faith and fair dealing owed to Kim. Du alleged
that Deerbrook breached the implied covenant when Deer-
brook failed to affirmatively settle Du’s claim within Kim’s
policy limits even after Kim’s liability for a judgment in
excess of the policy limits became clear on February 15,
2006.
At trial, Du proposed the following jury instruction based
on the Judicial Council of California Civil Jury Instruction
(“CACI”) 2337 (“Violation of Insurance Regulation or Indus-
try Practice”):
In determining whether Deerbrook Insurance Com-
pany breached the obligation of good faith and fair
dealing owed to Mr. Kim, you may consider whether
the defendant did not attempt in good faith to reach
a prompt, fair, and equitable settlement of Yan Fang
Du’s claim after liability [of its insured Kim] had
become reasonably clear.
DU v. ALLSTATE 6581
The presence or absence of this factor alone is not
enough to determine whether Deerbrook Insurance
Company’s conduct breached the obligation of good
faith and fair dealing. You must consider Deerbrook
Insurance Company’s conduct as a whole in making
this determination.
The district court rejected this proposed jury instruction; it
concluded that an insurer has no duty to initiate settlement
discussions in the absence of a settlement demand from the
third-party claimant. The district court also ruled that there
was no factual foundation for the instruction, as “the issue of
settlement was broached at a sufficiently early time in the liti-
gation that it vitiates any claim or effective claim insofar as
a failure to initiate a settlement discussion.”
At trial, the district court gave modified forms of CACI
2334 and 2337. Both of these instructions made clear that
breach of the covenant of good faith and fair dealing could be
found only if Deerbrook had failed to accept a reasonable set-
tlement demand, not for failing affirmatively to effectuate a
settlement.1
Likewise, the jury verdict form asked, “1. Did Deerbrook
unreasonably or without proper cause, fail to accept a reason-
able settlement demand for an amount within policy limits?”
1
The modified CACI 2337 stated in part:
In determining whether Defendant Deerbrook acted unreason-
ably or without proper cause, you may consider whether the
Defendant actions violated an applicable California state insur-
ance regulation or an accepted insurance industry practice . . . .
[A]ny such violation/lack of reasonableness on the part of the
insurance company would not be relevant to the Plaintiff ’s
claims in this case unless the violation/lack of reasonableness
relates to the Defendant’s purported refusal to accept a reason-
able settlement demand within policy limits.
(Emphasis added.)
6582 DU v. ALLSTATE
The jury answered no. The district court then entered judg-
ment in favor of Deerbrook.
This timely appeal followed.
III. STANDARDS OF REVIEW
“The standard of review for an alleged error in jury instruc-
tions depends on the nature of the claimed error.” Jenkins v.
Union Pac. R.R. Co., 22 F.3d 206, 210 (9th Cir. 1994). “A
district court’s formulation of the jury instruction is reviewed
for abuse of discretion. If, however, the instructions are chal-
lenged as a misstatement of the law, they are then reviewed
de novo.” Duran v. City of Maywood, 221 F.3d 1127, 1130
(9th Cir. 2000) (per curiam) (internal quotation marks and
citation omitted).
In addition, there must be a sufficient evidentiary founda-
tion to support giving the instruction. Mendez v. County of
San Bernardino, 540 F.3d 1109, 1117-18 (9th Cir. 2008).
Whether there is sufficient evidence to support an instruction
is reviewed for abuse of discretion. Galdamez v. Potter, 415
F.3d 1015, 1021 (9th Cir. 2005); see also United States v.
Hairston, 64 F.3d 491, 494 (9th Cir. 1995).
Where there is legal error in instructing the jury in a civil
case, reversal is required unless the error is more probably
than not harmless. Dang v. Cross, 422 F.3d 800, 811 (9th Cir.
2005); 28 U.S.C. § 2111; Fed. R. Civ. P. 52. An error is harm-
less if it is more probable than not that the jury would have
reached the same verdict had it been properly instructed.
Dang, 422 F.3d at 811.
IV. DISCUSSION
Du’s appeal raises this central legal issue: Does an insurer
have a duty, after liability of the insured has become reason-
ably clear, to attempt to effectuate a settlement in the absence
DU v. ALLSTATE 6583
of a demand from the claimant? Du contends that the district
court erred when it refused her proposed instruction permit-
ting such liability.
Deerbrook counters that, under California law, an insurer
does not have a duty proactively to extend a settlement offer
of its own and that the duty of good faith is breached only if
the insurer fails to accept a reasonable policy limits demand.
Deerbrook also argues that California law on the insurer’s
duty to settle is at best unsettled, and thus Deerbrook should
not be held liable under the “genuine dispute” doctrine.
Finally, Deerbrook argues that, even if an insurer had a duty
proactively to attempt to settle, there was no evidentiary foun-
dation for such an instruction in the instant case and that any
error was harmless.
Because the district court’s ruling below evidences poten-
tial confusion as to the scope of insurers’ duty to settle, we
take this opportunity to address the issue. We hold that, under
California law, an insurer has a duty to effectuate settlement
where liability is reasonably clear, even in the absence of a
settlement demand. However, in the context of this case, we
conclude that the district court did not abuse its discretion in
finding there was no evidentiary basis for Du’s proposed jury
instruction.
1. The Duty to Settle Under the Implied Covenant of
Good Faith and Fair Dealing Includes the Duty to
Effectuate Settlement Even in the Absence of a
Demand
[1] “In each policy of liability insurance, California law
implies a covenant of good faith and fair dealing.” PPG
Indus., Inc. v. Transamerica Ins. Co., 975 P.2d 652, 654 (Cal.
1999). This implied covenant covers the duty to settle within
policy limits “when there is substantial likelihood of recovery
in excess of those limits.” Kransco v. Am. Empire Surplus
Lines Ins. Co., 2 P.3d 1, 9 (Cal. 2000) (internal quotation
6584 DU v. ALLSTATE
marks omitted). Where there is a substantial risk of an
insured’s exposure in excess of the policy limits, the interests
of the insurer and the insured diverge. In that circumstance,
the insurer could choose not to settle and instead go to trial
knowing that it would be liable only for the policy limits,
exposing the insured to the risk of paying the excess judg-
ment. To ameliorate this conflict of interests, the covenant of
good faith and fair dealing “requires the carrier to consider in
good faith the interests of the assured equally with its own
and evaluate settlement offers within policy limits as though
it alone carried the entire risk of loss.” Merritt v. Reserve Ins.
Co., 110 Cal. Rptr. 511, 520 (Ct. App. 1973); see Johansen
v. Cal. State Auto. Ass’n Inter-Ins. Bureau, 123 Cal. Rptr.
288, 292-93 (1975) (accord).
[2] California courts have commonly applied the duty to
settle to situations in which the insurer unreasonably rejects
a settlement offer within policy limits. E.g., Kransco, 2 P.3d
1; Crisci v. Sec. Ins. Co. of New Haven, Conn., 426 P.2d 173,
176 (Cal. 1967). See PPG Indus., Inc., 975 P.2d at 655. At
issue in this case is whether the duty more broadly requires
an insurer to effectuate settlement when liability is reasonably
clear, even in the absence of a settlement demand. For several
reasons, we conclude that it does.
[3] First, the conflict of interest that animates the duty to
settle exists whenever there is a significant risk of a judgment
in excess of policy limits and there is a reasonable opportunity
to settle within those limits; this conflict obtains regardless
whether a settlement demand is made by the injured party. If,
as the general duty of good faith requires, the insurer “con-
duct[ed] itself as though it alone were liable for the entire
amount of the judgment,” a rational party should attempt to
settle if there is a “substantial likelihood of recovery in excess
of those limits,” Kransco, 2 P.3d at 9, and there is a reason-
able opportunity to settle within policy limits.
[4] Second, although the California courts have not
squarely addressed the question, this court has interpreted
DU v. ALLSTATE 6585
California law to impose such a duty. In Gibbs v. State Farm
Mutual Insurance Co., the insurer had failed to conduct any
negotiations with the injured party even after the injured party
repeatedly told the insured that he only wanted the limits of
the insurance policy. 544 F.2d 423, 427 (9th Cir. 1976).
Although no formal, written offer existed, this court held that
the injured party’s informal statements gave the insurer “a
reasonable opportunity to settle the claim within the policy
limits.” Id. When the insurer failed to take any actions, it “ne-
glect[ed] its good faith duty to take affirmative action in set-
tling the claim.” Id.Third, the California courts have not ruled to the contrary.
Deerbrook’s reliance on Merritt, 110 Cal. Rptr. 511, and Coe
v. State Farm Mutual Automobile Insurance Co., 136 Cal.
Rptr. 331 (Ct. App. 1977) is misplaced.
In Merritt, the plaintiff claimed that the insurer breached
the implied covenant of good faith and fair dealing owed to
its insured when the insurer “failed to properly undertake, ini-
tiate, entertain or pursue discussions with plaintiff . . . for the
disposition and settlement of said case at any stage of the pro-
ceeding prior to judgment.” 110 Cal. Rptr. at 513-14. The
plaintiff argued that the insurer could be held liable for failure
to initiate settlement overtures even in the absence of a
demand by the claimant. Id. at 524-25. The court rejected this
argument because “[t]his theory is supported by no evidence
whatsoever.” Id. at 525. Because the workers’ compensation
carrier’s lien greatly exceeded the insured’s policy limit of
$100,000, “[n]o suggestion that settlement was feasible was
ever made prior to judgment by anyone connected with the
suit.” Id. The court’s refusal to find bad faith therefore rested
not on a categorical rule that there is no legal duty to initiate
settlement, but on the facts of that case: any settlement over-
tures would have been futile. See Boicourt v. Amex Assurance
Co., 93 Cal. Rptr. 2d 763 (Ct. App. 2000) (holding that Mer-
ritt did not reject the plaintiff ’s claim “on the legal ground
that an insurer need never ‘initiate settlement overtures,’ but
6586 DU v. ALLSTATE
on the particular facts of the case before the court: There was
no evidence at all to support the conjecture that ‘overtures’
might have been fruitful.”); Gibbs, 544 F.2d at 427 (holding
that the insurer’s reliance on Merritt was “misplaced, for in
that case no reasonable settlement opportunity existed”).2
In Coe, the court held that the trial court erred when it gave
an instruction which stated, “The unwarranted failure or
refusal of the insurance company to so settle constitutes a
breach of the implied warranty of good faith and fair dealing.”
136 Cal. Rptr. at 339. The court stated that “actionable ‘bad
faith’ arises, not from an insurance carrier’s obligation ‘to set-
tle,’ but from unwarranted failure to accept a reasonable set-
tlement offer.” Id. However, the central theory of the case
concerned the insurer’s refusal to accept a deficient demand,
not a failure to initiate settlement discussions. See id. at 337-
38. There was no claim at trial that the insurer acted in bad
faith by failing to initiate further discussions. Coe‘s broad lan-
guage was therefore dicta and not consistent with the more
recent decision in Boicourt, 93 Cal. Rptr. 2d 768-69 (holding
that an insurer can violate good faith duty without a settle-
ment demand by the claimant, such as where insurer has a
policy of never disclosing policy limits to injured parties).
[5] Fourth, the breadth of an insurer’s duty to settle is sub-
stantiated by California Insurance Code section 790.03(h)
which enumerates the obligations an insurer owes to its
insured. Conduct that violates this section can be the basis for
2
Deerbrook’s citation to the court’s statement in Merritt that a conflict
of interest “only develops when an offer to settle an excess claim is made
within policy limits,” 110 Cal. Rptr. at 523-24, is misplaced. That passage
must be taken in the context of the court’s exposition of the general policy
considerations that underpin the good faith doctrine. It was not intended
as a categorical rule excluding other aspects of the duty to settle. Indeed,
in Boicourt, the court found that there was no reason for Merritt to find
that a conflict of interest could develop “only” when an offer to settle is
made, and that “Merritt’s use of the word ‘only’ must be deemed to be
mere dicta.” 93 Cal. Rptr. 2d at 767.
DU v. ALLSTATE 6587
a bad faith claim: Section 790.03(h)(5) specifically identifies
as an “unfair claims settlement practice[ ],” “[n]ot attempting
in good faith to effectuate prompt, fair, and equitable settle-
ments of claims in which liability has become reasonably
clear.”
In Pray ex rel. Pray v. Foremost Insurance Co., this Court
found that “[i]t is reasonably clear that California courts will
interpret the California statute as imposing upon an insurance
company the duty actively to investigate and attempt to settle
a claim by making, and by accepting, reasonable settlement
offers once liability has become reasonably clear.” 767 F.2d
1329, 1330 (9th Cir. 1985) (per curiam) (emphasis added).
Although Pray was predicated on the assumption that section
790.03(h) was enforceable through a private right of action,
id., an assumption no longer valid under Moradi-Shalal v.
Fireman’s Fund Insurance Cos., 250 Cal. Rptr. 116 (1988),
subsequent courts have found that violations of section
790.03(h) can serve as evidence that an insurer had breached
the implied covenant of good faith and fair dealing, Shade
Foods, Inc. v. Innovative Prods. Sales & Mktg., Inc., 93 Cal.
Rptr. 2d 364, 412 (Ct. App. 2000); Jordan v. Allstate Ins. Co.,
56 Cal. Rptr. 2d 312, 323 (Ct. App. 2007).
Indeed, following Jordan, the Judicial Council of Califor-
nia Civil Jury Instructions added CACI 2337 (2008), which
tracks section 790.03(h). In relevant part, CACI 2337 states:
“In determining whether [name of defendant] acted unreason-
ably or without proper cause, you may consider whether the
defendant did any of the following: . . . (e) Did not attempt
in good faith to reach a prompt, fair, and equitable settlement
of [name of plaintiff]’s claim after liability had become rea-
sonably clear.” That instruction does not require that a bad
faith claim be predicated on the insurer’s rejection of a claim-
ant’s demand.
[6] Thus, an insurer can violate the duty of good faith and
fair dealing by failing to attempt to effectuate a settlement
6588 DU v. ALLSTATE
within policy limits after liability has become reasonably
clear. Du’s proposed instruction was a fair statement of the
law. The district court’s rejection of that instruction on the
ground that no such duty could exist in the absence of a settle-
ment demand was in error.
2. The “Genuine Dispute” Doctrine Does Not Apply to
Third-Party Claims
[7] Deerbrook argues that the “genuine dispute” rule insu-
lates it from bad faith liability because Deerbrook’s obliga-
tions as to whether it should settle were “unsettled.” However,
the “genuine dispute” doctrine traditionally applies in the con-
text of disputed coverage in first-party insurance cases, where
the court must determine whether the insurer’s refusal to pay
policy benefits was unreasonable or without cause. See Mor-
ris v. Paul Revere Life Ins. Co., 135 Cal. Rptr. 2d 718, 723
(Ct. App. 2003). In first party cases, “an insurer denying or
delaying the payment of policy benefits due to the existence
of a genuine dispute with its insured as to the existence of
coverage liability or the amount of the insured’s coverage
claim is not liable in bad faith.” Chateau Chamberay Home-
owners Ass’n v. Associated Int’l Ins. Co., 108 Cal. Rptr. 2d
776, 784 (Ct. App. 2001); see also Tomaselli v. Transamerica
Ins. Co., 31 Cal. Rptr. 2d 433, 440 (Ct. App. 1994); Feldman
v. Allstate Ins. Co., 322 F.3d 660, 669 (9th Cir. 2003).
[8] Settlement in third-party insurance cases is different.
The California Supreme Court has held that
the only permissible consideration in evaluating the
reasonableness of the settlement offer becomes
whether, in light of the victim’s injuries and the
probable liability of the insured, the ultimate judg-
ment is likely to exceed the amount of the settlement
offer. Such factors as the limits imposed by the pol-
icy, a desire to reduce the amount of future settle-
ments, or a belief that the policy does not provide
DU v. ALLSTATE 6589
coverage, should not affect a decision as to whether
the settlement offer in question is a reasonable one.
Johansen, 123 Cal. Rptr. 288, 292-93 (emphasis added). This
court has recognized that, under California law, “a good faith
belief in noncoverage does not insulate an insurer from liabil-
ity for failure to settle a claim.” Gibbs, 544 F.2d at 427; see
Howard v. Am. Nat’l Fire Ins. Co., 115 Cal. Rptr. 3d 42, 70
(Ct. App. 2010) (noting that while insurers in first-party cases
may raise a reasonable dispute over coverage without being
guilty of bad faith, “it has never been held that an insurer in
a third party case may rely on a genuine dispute over cover-
age to refuse settlement”).3
[9] The district court’s rejection of Du’s proposed instruc-
tion cannot be sustained on the basis of the “genuine dispute”
doctrine.
3. The District Court Did Not Abuse Its Discretion in
Ruling That There Was No Foundation for Du’s
Proposed Jury Instruction
[10] As noted above, “a party is entitled to an instruction
about his or her theory of the case if it is supported by law and
has foundation in the evidence.” Mendez, 540 F.3d at 1117-18(internal quotation marks omitted). In the instant case, the dis-
trict court rested its decision to reject Du’s proposed jury
instruction in part on its observation that, “in fact, the issue
of settlement was broached at a sufficiently early time in the
litigation that it vitiates any claim or effective claim insofar
as a failure to initiate a settlement discussion.”
3
There is good reason to distinguish first-party claims from third-party
claims in this context. The insurer’s good faith duty to settle with a third
party can be accomplished without prejudicing its right to later assert non-
coverage against the insured. If it defended under a reservation of rights,
following settlement of the third-party claim, the insurer can seek a decla-
ration of non-coverage and recover reimbursement of its expenditures
from the insured. See Johansen, 538 P.2d 744, 750.
6590 DU v. ALLSTATE
[11] There is no dispute that in June and July 2006, Deer-
brook engaged with Du in settlement negotiations; it made a
$100,000 policy limits offer to Du, which Du rejected. The
bad faith claim asserted here is that the case would have been
settled within policy limits had Deerbrook initiated earlier set-
tlement negotiations. Deerbrook contends that if there was a
duty to initiate settlement talks, it did so in a timely fashion
in view of the circumstances. The record supports Deer-
brook’s contention.
First, Deerbrook could not make an earlier offer because
Deerbrook lacked corroborating proof of the extent of Du’s
injuries and medical expenses. Prior to June 23, 2006, the
only information Deerbrook had regarding Du’s injuries and
medical bills were the uncorroborated and conflicting asser-
tions by Du and her counsel. Du’s expert conceded that Deer-
brook could not base a settlement offer solely on the
representations of claimant and claimant’s lawyer.
Du’s expert also conceded that it was reasonable for Deer-
brook to rely on Katzman’s promise to provide Harcharik
with the medical information, a promise that remained unful-
filled until June 2006. Du’s expert further admitted that Deer-
brook could not have obtained Du’s medical records without
getting them from Du’s lawyers. The record shows that Deer-
brook made repeated efforts to obtain the information.
Second, prior to June 2006, Deerbrook had no proof of the
injuries of the other three individuals injured in the accident.
Paying Du $100,000 could have left Kim underprotected if
the remaining three claims exceeded $200,000, especially as
prior counsel had asserted that the Fengs suffered “life threat-
ening” injuries.
[12] In sum, there was no evidence that Deerbrook should
or could have made an earlier settlement offer to Du. Accord-
ingly, the district judge did not abuse his discretion in finding
there was no evidentiary basis for Du’s proposed instruction.
DU v. ALLSTATE 6591
V. CONCLUSION
Although the district court legally erred in holding as a
matter of law that an insurer’s duty of good faith and fair
dealing cannot be premised on the insurer’s failure to effectu-
ate settlement in the absence of a reasonable demand, the dis-
trict court did not abuse its discretion in refusing Du’s
instruction because there was no evidentiary foundation for it.
Accordingly, we affirm the judgment.
AFFIRMED.