Case Summary

3416 REHEARING GRANTED A declaratory judgment action can be the basis of a subsequent suit for malicious prosecution; a jury's verdict for the insurer in an insured's action for bad faith does not prevent the insured from subsequently suing the insurer for malicious prosecution of a declaratory judgment action the insurer had previously brought regarding coverage; a favorable ruling by the trial court in an insurance bad faith action does not preclude consideration of issues in a subsequent malicious prosecution action brought by the insured against the insurer because the issues in bad faith are not identical to the issues in malicious prosecution; a trial court's grant of summary judgment to an insurer in a coverage dispute, which it overturned on rehearing when the court realized it had made a mistake in granting summary judgment, does not establish that the insurer had probable cause for bringing the coverage action; the malice required for malicious prosecution is not the same as the malice required for punitive damages, but the court said proof of the malice required in a malicious prosecution case is a "huge start" in the proof required for punitive damages; in a malicious prosecution action, lack of probable cause for the underlying proceeding does not raise a presumption that it was brought with malice, but does raise an evidentiary inference that may be considered by the jury; although punitive damages were warranted in a case, the trial judge was correct in reducing the award because defendant's conduct was not so egregious as to warrant an extraordinarily large award; a corporation acting as an agent cannot escape liability for its acts by designating its employees as subagents.

HILLENBRAND v INA (Malicious DJ) 102 CA4 584 [See: CivC 2351, 3294; Camarena v Sequoia 190 CA3 1089; Bertero v National 13 C3 43; Hufstedler v Superior Court 42 CA4 55, T/AT 3/96; Roberts v Sentry 76 CA4 375, T/AT 12/99; DeRosa v Transamerica 213 CA3 1390; Tomaselli v Transamerica 25 CA4 1269, T/AT 7/94; Downey Venture v LMI 66 CA4 478, T/AT 10/98; Notrica v SCIF 70 CA4 911, T/AT 4/99; Aronow v LaCroix 219 CA3 1039]