California Insurance Code Section 11580(B)(2) - Interpretation

In McKee v. National Union Fire Ins. Co. (1993) 15 Cal. App. 4th 282, the court concluded that a judgment creditor of an insured is not entitled to sue a judgment debtor's insurer under Insurance Code section 11580, subdivision (b)(2) until an appeal from the underlying judgment is resolved or the time for appeal has passed. (McKee, at p. 283.) In reaching this conclusion, the court examined a statutorily required policy provision that the insurer may not be sued on an underlying judgment until it is "final," in the sense that it was affirmed on appeal or the time for appeal has expired. ( Id. at p. 287.) In deciding that a judgment is not "final" until then, the court relied on section 1049: " 'An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.' " (15 Cal. App. 4th at pp. 287-288.) Analysis of this issue under the doctrine of res judicata yields the same result. ( Id. at pp. 288-289.)