Terzian

This is an appeal by the insured (Terzian) from an adverse judgment in his action against his insurer (California Casualty) after a court trial of a previously undetermined issue after reversal by this court (Division Four) in Terzian v. California Cas. Indem. Exch., 3 Cal.App.3d 90 [ 83 Cal.Rptr. 255 ]. The contentions are that: 1) the trial court erred in going beyond the record to determine that the insured’s action against the uninsured motorist was based on wilful and malicious injury and, therefore, was not dischargeable in bankruptcy; and 2) in any event, the insurer was precluded from relying on the unconsented judgment exclusion to the uninsured motorist coverage by its own prior breach of the insurance agreement. We have concluded that while there is no merit to the first contention, the second is well taken and the judgment in favor of the insurer must be reversed.

The basic pertinent facts, as set forth in the prior opinion (Terzian v. California Cas. Indemn. Exch., 3 Cal.App.3d 90 at p. 94 [ 83 Cal.Rptr. 255 ]) and revealed by the record, indicate that in July 1960, the insured was injured in an accident involving an uninsured motorist, Alvarado. The insured…