Insurer's Separate Action Against the Tortfeasor

When, as often happens, the insured is only partially compensated by the insurer for a loss (because of deductibles, policy limits, and exclusions), operation of the subrogation doctrine "results in two or more parties having a right of action for recovery of damages based upon the same underlying cause of action." ( Ferraro v. Southern Cal. Gas Co., supra, 102 Cal. App. 3d at p. 41, fn. omitted.) The insured retains the right to sue the responsible party for any loss not fully compensated by insurance, and the insurer has the right to sue the responsible party for the insurer's loss in paying on the insurance policy. (Ibid.) The insurer is not limited to an action in intervention but may bring a separate independent action to recover directly from the third party tortfeasor. (Deutschmann v. Sears, Roebuck & Co. (1982) 132 Cal. App. 3d 912, 915-916 [183 Cal. Rptr. 573].) Although the insurer may bring a separate action against the tortfeasor, the rule against splitting a cause of action is violated where both the insurer and insured pursue separate actions. (Bright v. American Termite Control Co. (1990) 220 Cal. App. 3d 1464, 1468-1469 [269 Cal. Rptr. 793]; Ferraro v. Southern Cal. Gas Co., supra, 102 Cal. App. 3d at p. 41.) This is so because the general rule of subrogation provides that an insurer stands in the shoes of its insured; if a second action by the insured is barred, so is the action by the insurer. ( Griffin v. Calistro (1991) 229 Cal. App. 3d 193, 196 [280 Cal. Rptr. 30]; see also Allstate Ins. Co. v. Loo (1996) 46 Cal. App. 4th 1794, 1799 [54 Cal. Rptr. 2d 541] [the insurer has no greater rights than the insured would have and is subject to the same defenses assertable against the insured].) To avoid a violation of the rule against splitting a cause of action, the insured and insurer "should join in a single suit against the tortfeasor." ( Ferraro v. Southern Cal. Gas Co., supra, at p. 43; Bank of Orient v. Superior Court (1977) 67 Cal. App. 3d 588, 595 [136 Cal. Rptr. 741].) Where a tortfeasor's single act causes the plaintiff to suffer both personal injury and property damage, there are two causes of action. (Holmes v. David H. Bricker, Inc. (1969) 70 Cal. 2d 786, 789 [76 Cal. Rptr. 431, 452 P.2d 647]; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 44, p. 102; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, 361, pp. 926-927.) Thus, some jurisdictions have found there is no impermissible splitting of a cause of action where an insurer brings an action to recover the amount it paid the insured for property damage and the insured brings a separate action for personal injuries. ( Stevens v. Kirkpatrick (1996) 82 Hawaii 91 [919 P.2d 1003]; Rosenthal v. Scott (Fla. 1961) 150 So.2d 433; 16 Couch on Insurance (2d ed. 1983) 61:9, pp. 84-85.) It is the settled rule, however, that "a separate cause of action does not arise for each separate item of property damaged as a result of one tortious act." ( Holmes v. David H. Bricker, Inc., supra, 70 Cal. 2d at p. 789.)