California Automobile Insurance Law Guide

Get in-depth treatment of the major liability insurance cases and insurance statutes as well as full analysis of typical provisions of the standard automobile insurance policy.

Scope of insurer’s obligation
Persons and entities insured
Vehicles insured and exclusions
Public policy and statutory requirements
First party coverages: injuries to insured and to insured’s property
Termination of policies
Duty to defend
Reciprocal duties of insured and insurer; duty of good faith

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Selected Developments
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Get in-depth treatment of the major liability insurance cases and insurance statutes as well as full analysis of typical provisions of the standard automobile insurance policy.

Scope of insurer’s obligation
Persons and entities insured
Vehicles insured and exclusions
Public policy and statutory requirements
First party coverages: injuries to insured and to insured’s property
Termination of policies
Duty to defend
Reciprocal duties of insured and insurer; duty of good faith

Overview of Automobile Insurance

I. INTRODUCTION
- A. Scope 1.1
- B. Types of Policies 1.2
- C. Coverage Under Non-Automobile Liability Policies 1.3
  - 1. Claim Occurring on Insured Premises or Adjoining Premises 1.4
  - 2. Conduct Independent of Use of Automobile 1.5
- D. Concurrent Causation 1.6
  - 1. Coverage If Efficient Cause Is Covered: First Party Claims 1.7
  - 2. Coverage If Any Independent Concurrent Cause Is Covered: Third Party Claims 1.8
- E. Terminology 1.9
- F. Policy Structure 1.10
- G. Analyzing Policy 1.11
II. FORMATION OF CONTRACT
- A. Common Formation Procedure 1.12
- B. Requirement of Document and Delivery 1.13
- C. Oral Contracts of Insurance 1.14
- D. Premium 1.15
- E. Insurable Interest 1.16
- F. Vehicle Code §5604 1.17
III. INTERPRETATION OF POLICY
- A. Overview: Policies Construed as Other Contracts 1.18
- B. Ascertainment of “Clear and Explicit” Meaning 1.19
- C. Role of Reasonable Expectations 1.20
- D. Construction of Ambiguities Against Insurer 1.21
- E. Limitations of Coverage Must Be Conspicuous, Plain, and Clear 1.22
- F. Miscellaneous Rules 1.23
- G. Reformation
  - 1. By Insured 1.24
  - 2. By Insurer 1.25
IV. AGENCY
- A. Agent and Broker Defined 1.26
- B. Importance of Distinction Between Agent and Broker 1.27
- C. Scope of Authority 1.28
- D. Ostensible Authority 1.29
- E. Waiver and Estoppel 1.30
- F. Coverage by Estoppel; Limiting Provisions 1.31
V. AGENT’S OR BROKER’S LIABILITY
- A. To Insured
  - 1. Theory of Recovery 1.32
  - 2. Scope of Duty in Tort 1.33
  - 3. Duty to Fill Gaps in Coverage 1.34
  - 4. Effect of Other Insurance 1.35
- B. To Insurer 1.36
VI. COVERAGE SUITS
- A. No-Action Clauses
  - 1. Effect 1.37
  - 2. When Is Liability Established Against Insured? 1.38
    - a. If Insurer Provided a Defense, No Liability for Stipulated Judgment 1.39
    - b. If Insurer Does Not Provide a Defense 1.40
    - c. If Collusion by Insured 1.41
- B. Judgment Creditors and Third Party Claimants 1.42
- C. Declaratory Relief
  - 1. Availability 1.43
  - 2. As Evidence of Bad Faith 1.44
  - 3. As SLAPP Suit 1.45
  - 4. Procedure 1.46
  - 5. Attorney Fees 1.46A
- D. Choice of Law
  - 1. Rules 1.47
  - 2. Examples 1.48

The Insuring Agreements

I. INTRODUCTION 2.1
II. THE LIABILITY INSURING AGREEMENT
- A. Definition 2.2
- B. Sample Agreement 2.3
- C. Analysis of Elements
  - 1. Bodily Injury 2.4
    - a. Emotional Distress Accompanied by Physical Injury 2.5
    - b. Emotional Distress Unaccompanied by Physical Injury 2.6
  - 2. Property Damage 2.7
  - 3. Arising Out Of 2.8
    - a. Application 2.9
    - b. Cases: Loss Arising Out of Risk 2.10
    - c. Cases: Loss Not Arising Out of Risk 2.11
  - 4. Ownership 2.12
    - a. Statutory Definition 2.13
    - b. Application in Specific Contexts 2.14
    - c. Compliance With DMV Requirements 2.15
  - 5. Maintenance 2.16
  - 6. Operation 2.17
  - 7. Use 2.18
    - a. Examples: Injury Arising Out of Use of Insured Vehicle 2.19
    - b. Examples: Injury Not Arising Out of Use of Insured Vehicle 2.20
    - c. Loading and Unloading 2.21
      - (1) Examples: Coverage and Noncoverage for Loading 2.22
      - (2) Examples: Coverage and Noncoverage for Unloading 2.23
      - (3) Analysis of Loading and Unloading Cases 2.24
  - 8. Garage Endorsements 2.25
III. FACTORS AFFECTING LIABILITY INSURING AGREEMENT
- A. Limits of Liability 2.26
  - 1. Statutory Minimums 2.27
  - 2. Types of Limits 2.28
    - a. Split Limits 2.29
    - b. Single Limit 2.30
    - c. Combined Single Limit 2.31
  - 3. “Per Person” Issues 2.32
    - a. Wrongful Death Cases 2.33
    - b. Emotional Distress Cases 2.34
    - c. Loss of Consortium 2.35
  - 4. Multiple Policy Issues 2.36
  - 5. Number of Occurrences 2.37
  - 6. Insurer’s Liability After Exhausting Its Policy Limits 2.38
- B. Policy Period 2.39
- C. Territory 2.40
- D. Accident and Occurrence 2.41
  - 1. Accident 2.42
  - 2. Occurrence 2.43
- E. When Accident or Occurrence Takes Place 2.44
IV. OTHER TYPES OF INSURING AGREEMENTS
- A. Medical Expense Coverage 2.45
- B. Uninsured Motorist Coverage 2.46
- C. Physical Damage Coverage 2.47
V. PERSONAL AUTO POLICY 2.48

Persons and Entities Insured

I. DISTINCTION BETWEEN INSURED AND NAMED INSURED
- A. Insured and Named Insured 3.1
- B. Coverage Consequences of Distinction 3.2
II. FAMILY POLICIES
- A. “Persons Insured” Clause 3.3
- B. Coverage for Owned Automobiles 3.4
- C. Coverage for Nonowned Automobiles 3.5
III. COMMERCIAL POLICIES
- A. Persons Included and Excluded 3.6
- B. Treatment of Partnerships and Associations 3.7
IV. PERMISSIVE USE
- A. Statutory Requirement 3.8
- B. Who May Give Permission 3.9
  - 1. Permissive User Giving Permission to Another 3.10
  - 2. Permission Not Created by Later Ratification 3.11
- C. Effect of Permission 3.12
- D. Examples of Permissive Use 3.13
- E. Transfer of Ownership 3.14
V. LEGALLY RESPONSIBLE FOR USE 3.15
VI. RESIDENT OR MEMBER OF SAME HOUSEHOLD 3.16

Vehicles Insured

I. VEHICLE CLASSIFICATION
- A. In Family Policies 4.1
- B. In Commercial Policies 4.2
- C. Owned Vehicle
  - 1. Newly Acquired Vehicle 4.3
    - a. Acquisition During Policy Period 4.4
    - b. Notice 4.5
    - c. Replacement Vehicle 4.6
    - d. Exclusion for Owned Vehicles 4.7
  - 2. Temporary Substitute Vehicle 4.8
  - 3. Hired Vehicle Under Commercial Policies 4.9
- D. Nonowned Vehicle 4.10
  - 1. Exclusion of Coverage 4.11
  - 2. Regular Use 4.12
  - 3. Borrowed Vehicle 4.13
II. FUNCTIONAL CATEGORIES OF VEHICLES 4.14
- A. Automobile and Motorcycle 4.15
- B. Off-Road Vehicle 4.16
- C. Heavy Equipment 4.17

Exclusions From Coverage

I. GENERAL PRINCIPLES
- A. Limitations on Exclusions 5.1
- B. Burden of Proof 5.2
- C. Interpretation of Exclusionary Language 5.3
- D. Exclusionary Clause Must Be Conspicuous, Plain, and Clear 5.4
II. TYPES OF EXCLUSIONS
- A. Bodily Injury to Insured or Relatives
  - 1. Validity 5.5
  - 2. Application 5.6
- B. Damage to Property 5.7
  - 1. Identifying the Insured 5.8
  - 2. “In Charge of” 5.9
- C. Injury to Insured’s Employee 5.10
- D. Public or Livery Conveyance; Carrying Property for Charge 5.11
- E. Social Service Transportation 5.12
- F. Vehicles Used for Commercial Purposes or for Automobile Business 5.13
- G. Intentionally Caused Injury
  - 1. Exclusions Based on Policy and Statute 5.14
  - 2. Meaning of “Intentional” 5.15
    - a. Malicious Conduct 5.16
    - b. Willfulness Versus Intent to Injure 5.17
  - 3. Coverage Despite Intentionally Caused Injury 5.18
  - 4. No Coverage for Punitive Damages 5.19

Statutory Requirements

I. INTRODUCTION 6.1
II. AUTOMOBILE LIABILITY POLICY REQUIREMENTS
- A. Ins C §11580.05: Statutory Public Policy 6.2
- B. Ins C §11580.1 6.3
  - 1. Subdivision (a): Scope of Statute 6.4
  - 2. Subdivision (b): Required Provisions 6.5
    - a. Self-Insurer and Permissive Use Coverage 6.6
    - b. Posting Cash Bonds or Deposits 6.7
    - c. Coverage for Nonowned Vehicles Not Required 6.8
    - d. Permissive User Exclusions 6.9
  - 3. Subdivision (c): Authorized Exclusions 6.10
  - 4. Subdivision (d)
    - a. Designated Individual Exclusion 6.11
    - b. Permissive Users of Named Insureds in Automobile Business 6.12
  - 5. Subdivision (e): Policies Excluded From Requirements 6.13
  - 6. Subdivision (f): Coverage for Social Service Transportation 6.14
  - 7. Subdivision (g): Coverage Limitations for Nonadmitted Mexican Insurers 6.15
  - 8. Subdivision (h): Nonadmitted Mexican and Uninsured Motorist Coverage 6.16
  - 9. Statutory Authorization and Policy Language 6.17
- C. Ins C §11580 6.18
III. ADDITIONAL STATUTES IMPACTING AUTOMOBILE INSURANCE
- A. California Financial Responsibility Law 6.19
- B. Proposition 103 6.20
- C. CC §3333.3: Preclusion of Recovery of Damages by Felons 6.20A
- D. CC §3333.4: Limitations on Recovery of Noneconomic Damages 6.21
IV. PERMIT AND COVERAGE REQUIREMENTS FOR CALIFORNIA MOTOR CARRIERS OF PROPERTY 6.22
- A. Liability Insurance Requirements 6.23
- B. Required Scope of Coverage 6.24

First Party Coverages: Injuries to Insured and Insured’s Property

I. INTRODUCTION 7.1
II. MEDICAL EXPENSE COVERAGE 7.2
- A. Named Insured and Relatives 7.3
- B. Other Persons 7.4
- C. Meaning of “Occupying” 7.5
- D. Typical Exclusions 7.6
- E. Effect of Other Sources of Payment 7.7
- F. Relation of Medical Payment to Liability Coverage 7.8
III. OTHER DIRECT BENEFITS FOR DEATH OR INJURY TO INSURED
- A. Death Benefit 7.9
- B. Death Benefit Exclusions 7.10
- C. Disability and Extra Medical Benefits 7.11
IV. PHYSICAL DAMAGE COVERAGES
- A. Collision Coverage 7.12
- B. Comprehensive Coverage 7.13
- C. Measure and Method of Physical Damage Recovery 7.14
- D. Loss Payees 7.15

Termination of Policies

I. INTRODUCTION
- A. Kinds of Termination 8.1
- B. Renewal
  - 1. Definition 8.2
  - 2. Procedure 8.3
- C. Nonrenewal
  - 1. Definition and Procedure 8.4
  - 2. Limitations on Nonrenewal 8.5
II. CANCELLATION
- A. Effect, Method, and Proof of Cancellation 8.6
- B. Grounds for Cancellation 8.7
- C. Procedure 8.8
- D. Special Cancellation Requirements 8.9
- E. Defenses 8.10
- F. Cancellation by Mutual Consent; by Substitution 8.11
III. RESCISSION
- A. Definition and Procedure 8.12
- B. Grounds for Rescission 8.13
  - 1. Concealment 8.14
  - 2. Misrepresentation 8.15
  - 3. Breach of Warranty 8.16
- C. Materiality 8.17
- D. Scienter 8.18
- E. Reasonable Reliance by Insurer 8.19
- F. Kinds of Material Misrepresentation 8.20
- G. Time to Rescind; Insurer’s Duty to Investigate Insurability 8.21
- H. Waiver and Estoppel to Prevent Rescission 8.22

Duty to Defend

I. INSURER’S DUTY TO DEFEND 9.1
II. SCOPE OF DUTY TO DEFEND
- A. Gray v Zurich Ins. Co. 9.2
- B. Applying Gray v Zurich Ins. Co. 9.3
- C. Expiration and Continuation of Duty to Defend 9.4
III. CONSEQUENCES OF INSURER’S FAILURE TO DEFEND
- A. Control of Litigation 9.5
- B. Conflict of Interest 9.6
- C. Settlement 9.7
- D. Judgment
  - 1. Collateral Estoppel: General Rule 9.8
    - a. Effect of Default Judgment 9.9
    - b. Effect of Stipulated Judgment 9.10
  - 2. Effect of Fraud and Collusion 9.11
  - 3. Insurer’s Additional Liability 9.12
  - 4. Intercarrier Disputes 9.13

Reciprocal Duties of Insured and Insurer; Duty of Good Faith

I. INTRODUCTION 10.1
II. INSURED’S DUTIES TO INSURER
- A. Notice of Accident or Loss 10.2
- B. Cooperation 10.3
- C. Insurer’s Burden of Showing Prejudice
  - 1. Breach of Cooperation Clause 10.4
  - 2. Breach of Notice Clause 10.5
- D. Waiver and Other Defenses 10.6
- E. Effect of Public Policy 10.7
- F. Insured’s and Primary Insurer’s Duty to Excess Insurer 10.8
III. INSURER’S DUTIES TO INSURED 10.9
- A. Statutory Unfair Claims Settlement Practices; Moradi-Shalal v Fireman’s Fund Ins. Cos. 10.10
- B. Duty to Settle Within Policy Limits 10.11
  - 1. Nature of Demand 10.12
  - 2. Necessity of Demand Within Policy Limits; Exceptions 10.13
  - 3. Good Faith but Erroneous Denial of Coverage; Strict Liability 10.14
  - 4. Multiple Insureds; Multiple Defendants 10.15
  - 5. Effect of CC §3333.4 10.16
  - 6. Disclosure of Policy Limits 10.17
  - 7. Liability to Excess Insurer 10.18
- C. Beneficiaries of Insurer’s Obligation; Assignment of Rights 10.19
  - 1. Relatives and Heirs 10.20
  - 2. Shareholders, Judgment Creditors, and Lessees 10.21
  - 3. Other Insurers 10.22
  - 4. Limits on Insurer’s Liability 10.23
- D. Statute of Limitations 10.24
- E. Admissibility of Pretrial Settlement Offers 10.25
- F. Joint Representation
  - 1. Potential Conflicts of Interest 10.26
  - 2. Independent (Cumis) Counsel 10.27
- G. Existence of Fiduciary Relationship 10.28
- H. Insurer’s Duty of Good Faith
  - 1. Duty to Insured 10.29
  - 2. Types of Bad Faith Actions 10.30
  - 3. Comparative Bad Faith Is No Defense 10.31
  - 4. Damages Recoverable for Breach of Good Faith Duty
    - a. Compensatory Damages 10.32
    - b. Emotional Distress Damages 10.33
    - c. Liability for Punitive Damages 10.34
    - d. Measure of Punitive Damages 10.35
    - e. Prejudgment Interest 10.36
    - f. Attorney Fees 10.37
  - 5. Insurer’s Defenses and Offsets 10.38

“Other Insurance” and Relationship Among Insurers

I. INTRODUCTION 11.1
II. CONFLICT AMONG “OTHER INSURANCE” CLAUSES
- A. Types of “Other Insurance” Provisions 11.2
- B. Prorate Clause Versus Excess Clause 11.3
- C. Excess Clause Versus Excess Clause 11.4
- D. Escape Clause Versus Prorate or Excess Clause 11.5
III. “OTHER INSURANCE” CLAUSE LEGISLATION
- A. Public Policy: Ins C §§11580.8–11580.9 11.6
- B. Motor Vehicle Business: Ins C §11580.9(a) 11.7
- C. Motor Vehicle Leasing and Renting in the Course of Business: Ins C §11580.9(b) 11.8
- D. Loading or Unloading Motor Vehicles: Ins C §11580.9(c) 11.9
- E. Other Situations: Ins C §11580.9(d) 11.10
- F. Failure of Primary Coverage: Ins C §11580.9(e) 11.11
- G. Limiting Ins C §11580.9(a)–(d) 11.12
- H. Trucks and Trailers With Different Owners: Ins C §11580.9(h) 11.12A
- I. Self-Insurance: Ins C §11580.9(i) 11.13
IV. LITIGATION BETWEEN INSURERS
- A. Insurer as Volunteer 11.14
- B. Rights and Duties Among Insurers; Statute of Limitations 11.15
- C. Contribution for Defense Costs 11.16

Selected Developments

November 2022 Update

The current update includes changes throughout this publication that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2021 update.

Scope of Duty in Tort. In Vulk v State Farm Gen. Ins. Co. (2021) 69 CA5th 243, the court held that an insurer was entitled to summary judgment on a negligence claim because the operative complaint did not allege any facts showing that the insurer had a special duty of care to provide replacement cost insurance coverage for a home. See §1.33.

Declaratory Relief—Procedure. In Berg v Pulte Home Corp. (2021) 67 CA5th 277, the court held that there is no right to a jury trial in civil actions that are equitable in nature. Only when issues of law are involved does the right to a jury trial attach. See §1.46.

Willfulness Versus Intent to Injure. Insurance Code §533 reflects a fundamental public policy of denying coverage for willful wrongs and discouraging willful torts. Certain Underwriters at Lloyd’s London v ConAgra Grocery Prods. Co. (2022) 77 CA5th 729. See §5.17.

Conflict of Interest. In Simonyan v Nationwide Ins. Co. of Am. (2022) 78 CA5th 889, the court rejected the insured’s claim that retention of panel counsel without any reservation of rights created a conflict of interest because the insured contended he was not responsible for an accident; the insurer had concluded to the contrary and raised his premium; and panel counsel’s representation might be less effective if it adopted the insurer’s position in defending the case. See §9.6.

Independent Counsel. In Simonyan v Nationwide Ins. Co. of Am. (2022) 78 CA5th 889, the court cited James 3 Corp. v Truck Ins. Exch. (2001) 91 CA4th 1093 and held that a speculative, future, potential conflict of interest would not trigger the right to independent counsel under CC §2860. See §10.27.

Types of Bad Faith Actions. Where a special verdict form in an underlying motor vehicle accident case did not ask for a finding on the reasonableness of the insurer’s conduct in failing to accept a settlement offer for the policy limits, and the jury made no finding that the insurer acted unreasonably in any respect, the special verdict was insufficient to support a bad faith judgment against the insurer. Pinto v Farmers Ins. Exch. (2021) 61 CA5th 676. See §§10.11, 10.30.

Compensatory Damages. In Sheen v Wells Fargo Bank, NA (2022) 12 C5th 905, the California Supreme Court analyzed how tort recovery has been allowed in some cases involving insurance policies and contracts, and this is because insurance cases were a major departure from traditional principles of contract law. See §10.32.

Motor Vehicle Leasing and Renting in the Course of Business. An online platform that allowed car owners to rent their cars to other users was not a “rental car company” because it did not own, lease, or rent a fleet of cars for customers to rent and thus was not in the business of renting vehicles to the public. Turo Inc. v Superior Court (2022) 80 CA5th 517. See §11.8.

About the Author

RALPH A. LOMBARDI is a former partner of Lombardi, Loper & Conant, LLP, in Oakland, where his practice emphasized the areas of insurance coverage and bad faith, medical and legal malpractice, and product liability. He retired in mid-2018 after 46 years of trial practice, during which he tried more than 100 civil cases to verdict or judgment, or arbitrated to binding results, including catastrophic injury, wrongful death, automobile crashworthiness, design defect, medical and legal negligence, insurance coverage, and insurance bad faith claims. Mr. Lombardi has since joined ADR Services, Inc., as a mediator and arbitrator. Mr. Lombardi received his A.B. from the University of California, Berkeley, in 1967 and his J.D. from the University of California, Berkeley, School of Law in 1970. He is a Fellow of the International Academy of Trial Lawyers, American College of Trial Lawyers, and International Society of Barristers. He is also a past President of the San Francisco chapter of the American Board of Trial Advocates (ABOTA), a current member of the ABOTA national board of directors, a past director of the Association of Defense Counsel of Northern California, and a former member of the International Association of Defense Counsel and of the Association of Defense Trial Attorneys. Mr. Lombardi is listed in the 2006–2020 editions of The Best Lawyers in America.

About the 2022 Update Author

RALPH A. LOMBARDI: For biographical information, see the About the Author section. Mr. Lombardi is the author of this book.

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Filing Instructions for California Automobile Insurance Law Guide

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Products specifications

PRACTICE AREA	Civil Litigation & Torts
PRACTICE AREA	Public Law
PRODUCT GROUP	Publication

Products specifications

PRACTICE AREA	Civil Litigation & Torts
PRACTICE AREA	Public Law
PRODUCT GROUP	Publication

California Automobile Insurance Law Guide

Overview of Automobile Insurance

The Insuring Agreements

Persons and Entities Insured

Vehicles Insured

Exclusions From Coverage

Statutory Requirements

First Party Coverages: Injuries to Insured and Insured’s Property

Termination of Policies

Duty to Defend

Reciprocal Duties of Insured and Insurer; Duty of Good Faith

“Other Insurance” and Relationship Among Insurers

Selected Developments

About the Author

About the 2022 Update Author

Contact Info

Information

Customer info

Help

Customer Service

California Automobile Insurance Law Guide

Selected Developments

About the Author

About the 2022 Update Author

California Civil Appellate Practice

Contact Info

Information

Customer info

Help

Customer Service