AETNA CASUALTY AND SURETY COMPANY v. TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY (1985)

Petitioner, Aetna Casualty and Surety Company, is a defendant in a damage action for alleged bad-faith insurance practices.   Real parties, plaintiffs below, allege bad faith in the handling and refusal to settle a claim on a fidelity bond.   Real parties sought discovery of matters pertinent to the prior claims handling practices of the two Aetna employees involved with the fidelity bond claim.   This discovery request was designed to reveal any pattern of past behavior from which bad faith may be inferred, and is precisely the type recently approved by our Supreme Court in Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 183 Cal.Rptr. 810, 647 P.2d 86.

 The superior court granted real parties' discovery request, whereupon Aetna petitioned this court for extraordinary writ.   After carefully reviewing the petition we could not distinguish this case from Colonial Life, and summarily denied the petition.   Aetna petitioned the Supreme Court for hearing;  the Supreme Court granted hearing and retransferred the matter to this court with directions to issue an alternative writ, but with no citation of authority, no reasons for the retransfer and no guidance for the review we were directed to undertake.   We complied with the court's directive by issuing the writ, staying the discovery order, and hearing oral argument.   Having now expended greater time and judicial resources to cover the same ground we covered previously, we reach the identical conclusion we reached in our order of summary denial.   Accordingly, we vacate the alternative writ and deny the peremptory writ.

Aetna attempts to distinguish this case from Colonial Life on various grounds.   It places particular emphasis on the number of prior claims about which real parties seek discovery, evidently about 700, and compares this number with the 35 prior claims involved in Colonial Life.   We are unable to discern any material distinction between Colonial Life and this case on the basis of quantitative concerns.   The broad rule of discovery set forth in Colonial Life does not appear to be subject to qualification solely because of the number of prior claims involved.

We are similarly unpersuaded by Aetna's argument that because this case involves a “unique” claim, broad discovery of practices involving other claims should not be permitted.   The alleged uniqueness of a claim is not the focus of Colonial Life discovery;  rather, the focus there and here is on the prior history of claims handling procedures.   Logically, a pattern of bad faith in handling claims may involve both the unique and the routine.

 We remain unable to distinguish this case from Colonial Life.   Aetna, at oral argument, suggests that certain limits should be placed on the broad rule of that case, with particular regard to the contentions discussed above and others raised in its petition.   We can only respond that Aetna addresses its contentions to the wrong forum.   Proposed modifications of the broad rule of the Colonial Life decision must be addressed to its author for we are powerless to modify or overrule a decision by our Supreme Court.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937).

 We cannot refrain from commenting on the Supreme Court's practice of retransferring cases to the Courts of Appeal with little or no guidance as to its view of the case, the expected result, or case authority it believes the Court of Appeal has not previously considered.   In this case, we were presented with a writ petition of no evident merit on facts materially indistinguishable from a very recent Supreme Court decision.   Aetna presented four issues;  the Supreme Court apparently saw some potential merit to at least one of them, but declined to bring it to our attention in its order directing us to issue an alternative writ.¹  Absent some guidance from that court in an area which is clearly governed by one of its own decisions, we have no choice but to follow Colonial Life.   Given the duplicated expenditure of judicial resources, we respectfully suggest that the Supreme Court reexamine its practice of issuing retransfer orders without any direction for the recipient Court of Appeal.   Despite our overloaded calendars, this district is making a determined effort to become current for the first time in recent history.   Valuable court time and judicial energy should not be expended in conducting a second review of the case already thoroughly reviewed.

The alternative writ is discharged.   The peremptory writ is denied.   The stay heretofore imposed by this court in response to the alternative writ is hereby dissolved.

FOOTNOTES

1.   “Our construction of the order would be much easier if we were afforded access to the ‘conference memorandum’ upon which the Supreme Court based its action.   Presumably some career member of the legal staff of a Supreme Court justice or some law student extern working for him knows something we do not.”  (Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939 fn. 2, 152 Cal.App.3d 934).

KING, Associate Justice.

LOW, P.J., concurs. HANING, J., concurs in the result.