William Calvin PRINGLE, a Minor, by Robert L. Frederickson, Guardian of the Estate of William Calvin Pringle, Appellant,
v.
Charles ROBERTSON, Defendant, and Hartford Accident and Indemnity Company, a Corporation, Respondent.
Supreme Court of Oregon.
Argued and Submitted September 10, 1969. Decided April 14, 1971. Reargued on Rehearing October 30, 1970.William F. Schulte, Portland, argued the cause for appellant on rehearing. With him on the briefs were Van Natta & Petersen, St. Helens.
Edwin J. Peterson, Portland, argued and reargued the cause for respondent. With him on the briefs were Tooze, Powers, Kerr, Tooze & Peterson, Portland.
Before O'CONNELL,[*] C.J., and McALLISTER, DENECKE, HOLMAN, TONGUE, and HOWELL, JJ.
*815 HOLMAN, Justice.
Plaintiff filed a petition for rehearing. The petition was allowed and the case was reargued. Plaintiff asserts that we were mistaken in stating in our original opinion that there was no judicial authority for his position. He is correct. We did err in making the statement. The case of Shaw v. Botens, 403 F.2d 150 (3rd Cir.1968), which was decided about the time the present proceeding was first heard by this court, is authority for his position.
Shaw does not give the injured plaintiff a right to garnish and prosecute the defendant's claim against the insurance company because plaintiff has any interest or right under the insurance policy. It construes Pennsylvania law to give that right to the injured plaintiff only as a judgment creditor of the defendant. Plaintiff concedes that any other creditor would have the same right to assert the claim who had a prior levy. The rationale of Shaw is that the defendant's right against the insurance company arises out of contract and is assignable and that the garnishment operates as an equitable assignment of the judgment debtor's rights against the insurance company. The case does not discuss whether it is desirable policy to let some third party determine whether the insured should assert that the insurance company has been negligent or guilty of bad faith in failing to settle the claim against him.
If it is good public policy, and we believe it is, not to allow third parties to decide whether such accusations should be made by way of judicial proceedings, it would seem to be irrelevant whether the duty of care and good faith was implied by the law because of a contract or whether the law imposed the duty in the absence of contract. A doctor's relation with his patient and a lawyer's relation with his client are contractual, and, because of this relationship, the law imposes a duty of care and good faith. Few, if any, would assert that claims against doctors and lawyers for malpractice should be garnishable and we are unable to distinguish between the implied obligations of doctors and lawyers to exercise care and good faith and those of the insurance company in the present instance. If "implied contractual duty" is the "sesame" that opens the door of garnishment, it may become slightly drafty within. It is important that the law not be perverted in an attempt to reach what, in this case, would seem to be a desirable result when there are many similar situations which cannot be distinguished and in which the result sought would be undesirable and inappropriate.
It has been urged that the important matter for concern is the protection of persons injured in automobile accidents. It must be remembered, however, that the insurer has breached no duty which it owed to the injured plaintiff, and that the injured plaintiff was not harmed by the insurer's failure to settle. Had the case been settled, the injured plaintiff would have received no more money than it ultimately did receive. Therefore, the insurer's failure to settle could not have been the cause of any loss to plaintiff. R. Keaton, "Liability Insurance and Responsibility for Settlement," 67 Harv.L.Rev. 1136, 1176-1177 (1954).
We adhere to our original opinion.
NOTES
[*] O'CONNELL, C.J., did not participate in the decision of this case.