When asserting a right, an insurer must determine whether there is coverage that would trigger an obligation to defend the insured against the law. The Arizona Supreme Court considered the consequences of an insurer`s refusal to defend an insured, which led to an orderly default judgment and the transfer of the insured`s rights against the insurer to Damron v. Schlitten, 105 Ariz. 151, 460 p.2d 997 (1969). There, two insurance agencies refused to defend a driver involved in a car accident on the grounds that there was no coverage because he was driving without the owner`s permission. Before the case could be heard, the defendant driver agreed to withdraw his answer and authorize a default judgment against him. He also agreed to award the applicant all the claims he had against the insurance companies because he was not defended. In return, the applicant agreed not to enforce the resulting default judgment on the defendant driver`s property. The Supreme Court found that the agreement was an appropriate mechanism for the driver to protect himself from the risks associated with insurers` refusal to defend themselves. Safety Control`s insurer, EMC, argued that it was unacceptable for dBA to enter into such an agreement in order to transfer responsibility for the Colorado Casualty comparison to EMC, as Colorado defended the DBA casualty.
The Court disagreed and found that the transaction agreement only transfers liability to EMC as direct insurers where it should have been invoked. As Emc is the main carrier, it was held responsible until its directive limit, which exceeded the fixed verdict. The Court found that, for this reason, the transaction agreement did not insert or inscitably disinsu us to EMC`s liability in a fraudulent or collusive manner. The Court found that EMC could not evade liability simply because Colorado Casualty had made another coverage decision. Before executing a Damron agreement, a plaintiff should carefully consider whether he or she sees damages at a late hearing or by provision. Violation of an insurer`s duty to defend an insured deprives him of the right to participate in a late hearing. [xi] Therefore, a delay proceeding may be an attractive means of determining damages, since the insurer will not contest the applicant`s evidence. The amount of harm found by an independent fact-finding person in a delay proceeding is less likely to be considered fraudulent or collusive in a subsequent appeal to determine the validity of the agreement than the amount of a predetermined judgment. On the other hand, at a late hearing, an applicant is likely to have property damages less than an amount that would have been set by the parties, but which, in a subsequent proceeding involving the insurer, is still considered free of fraud or collusion. In general, a judgment gives the applicant much more control over the outcome. From the applicant`s point of view, the Peaton agreements should only be concluded in very limited circumstances. It is fair to say that there is no harm in not accepting a transaction offer within political limits if a definitive finding of judicial prejudice is not reached.