Wilks

The critical issue presented in this appeal is whether an insurer is required to furnish independent counsel selected by the insured and paid for by the insurer when the complaint against the insured seeks recovery of punitive damages as well as compensatory damages, See San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358 [ 208 Cal.Rptr. 494 , 50 A.L.R.4th 913 ].)

We hold that the mere allegation of punitive damages and a prayer therefor does not alone create a conflict between the insured and insurer and trigger the Cumis duty to provide the insured with independent counsel. We shall therefore affirm the summary judgment and order of dismissal following the sustaining of a demurrer in favor of the insurer.

Factual and Procedural Background

In April 1985, Delmar Brey filed suit (the Brey action) against Diana Wilks (Wilks) for defamation. The complaint alleged Wilks published defamatory statements on various occasions between August 1984 and March 1985, and sought injunctive relief, compensatory damages of $100,000 and punitive damages of $250,000.

Wilks tendered defense in the Brey action to Foremost Insurance Company (Foremost),…