INSURANCE-RIGHT OF INSURED TO MAKE HIS OWN DEFENSE AT EXPENSE OF INSURER WHERE P AND D ARE INSURED BY SAME INSURER

The drivers of two automobiles involved in a collision were insured against liability for damages by the same insurance company. Their policies contained clauses reserving to the insurer the right and duty to defend all actions. One driver, Borad, sued the other, O\u27Morrow, who, through counsel of his own selection, filed a cross complaint for damages and gave notice to the insurance company that these attorneys would also present his defense. When the company informed O\u27Morrow that it considered his independent defense a breach of the co-operation clause, he brought this action for declaratory relief. On appeal from a judgment in the trial court for insurer, held, the insurer may not control the defenses of two insureds, because it is contrary to public policy to permit both sides of litigation to be directed by one person; and, where there is such conflict between the interest of the insurer and the insureds, the latter are excused from compliance with the co-operation clauses and may recover from insurer any costs of suit and reasonable attorney\u27s fees incurred in defending themselves against each other\u27s claims. O\u27Morrow v. Borad, 27 Cal. (2d) 794, 167 P. (2d) 483 (1946)