September 2019 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 2018 update.
Measure of Damages for Claims Against Brokers and Agents. Chapter 29 has been expanded to cover how the general rules regarding measure of damages have been applied to claims against insurance producers. Among the areas covered are damages under both contract and tort theories (§29.4), specific damages claims for items such as loss of coverage (§29.41), emotional distress (§29.42), costs of litigating coverage disputes (§29.43), and policyholder’s time (§29.44).
Bodily Injury and Damages Qualification. In Jones v IDS Prop. Cas. Ins. Co. (2018) 27 CA5th 625, a single per person limit applied to both husband’s claim for damages for injuries and wife’s claim for loss of consortium under automobile policy. See §§1.19, 3.20.
Regulation of Unfair Practices. In PacificCare Life & Health Ins. Co. v Jones (2018) 27 CA5th 391, it was determined that Ins C §790.03(h) applies both to a pattern of violation and to single violations knowingly committed. See §3.42.
Duty to Defend and Activity Qualification. In Yahoo! Inc. v National Union Fire Ins. Co. of Pittsburgh (9th Cir 2019) 913 F3d 923, the Ninth Circuit certified to the California Supreme Court the issue of whether claims under the Telephone Consumer Protection Act of 1991 trigger a commercial liability policy. See §3.24.
Anti-Montrose Policy Language. In Insurance Co. of State of Pa. v American Safety Indem. Co. (2019) 32 CA5th 898, the court discussed a situation where the insurer adopted anti-Montrose policy language in an attempt to contract around the continuous injury trigger. See §3.36.
Concurrent Causes. Restating what it understood to be existing law for the special circumstance of mudslides, the legislature adopted Ins C §530.5, providing that coverage shall be provided if an insured’s peril is the efficient proximate cause of the loss. See §3.42.
Scope of Duty to Defend. In Travelers Prop. Cas. Co. of Am. v Engel Insulation, Inc. (2018) 29 CA5th 830, the court determined that Rev & T C §23301 prevents an insurer from defending suspended corporations and also from enforcing the subrogation rights of suspended corporations. See §4.6A.
Following Form Excess Policies. In Deere & Co. v Allstate Ins. Co. (2019) 32 CA5th 499, the court determined the exemption of liability limits from a following form excess policy resulted in self-insured retention that should be applied only to the first layer of umbrella policy coverage and not to higher layers. See §17.3.
Public Entity Insured’s Right to Recover for Loss. In Westport Cas. Corp. v California Cas. Mgmt. Co. (9th Cir 2019) 916 F3d 769, the court determined that Govt C §825.4 does not necessarily preclude a public entity from obtaining contribution from its employees’ insurer. See §23.30.
Superior Equities in Subrogation Claim. In Western Heritage Ins. Co. v Frances Todd, Inc. (2019) 33 CA5th 976, the court of appeal affirmed summary judgment to lessees of a commercial condominium owner on an equitable subrogation claim made by the insurer of the condominium owners’ association. See §23.35.
Punitive Damages Against Insurers. In Mazik v GEICO Gen. Ins. Co. (2019) 35 CA5th 455, a claims representative’s regional authority over the settlement of claims determined corporate policy and satisfied the requirements of CC §3294(b). See §24.86.
Statute of Limitations in Professional Negligence Actions. In Lederer v Gursey Schneider LLP (2018) 22 CA5th 508, a cause of action against an accounting firm for purchasing an underinsured motorist insurance policy with limits lower than requested did not accrue until the injury claim was settled with the other driver because the insured only obtained the right to coverage that would occur on the exhaustion of the driver’s policy. See §29.31.