Julia K. Holt
California courts strictly enforce an insurer’s duty to immediately commence defending its insured. The insurer’s delay in doing so, even if the delay is short, constitutes a breach of this important duty. In fact, California imposes a 40-day time limit for an insurer to provide its written coverage position under the Prompt, Fair and Equitable Settlement of Claims requirements stated in Title 10 of the California Code of Regulations at Section 2695.7.
A breach in this regard results in a waiver of any claimed right of the insurer to control the defense of its insured. This includes a waiver of the insurer’s ability to seek to impose any Civil Code Section 2860 rate limitations for independent counsel. See Travelers Indem. Co. of Connecticut v. Centex Homes, No. 11-CV-03638-SC, 2015 WL 5836947, at *5 (N.D. Cal. Oct. 7, 2015), objections overruled, No. 11-CV-03638-SC, 2015 WL 6164429 (N.D. Cal. Oct. 8, 2015). In Centex Homes, the Court found “that Travelers breached its duty to defend by failing to provide Centex with a defense at least 30 days after the complaints were filed in the [noticed] actions . . . [and therefore] Travelers also lost its right to control Centex’s defense.” Id. Continue reading “California Corner: Insurer’s Failure to Immediately Commence Defense Waives California Civil Code Section 2860 Rate Limitations for Independent Counsel”
Julia K. Holt
Most commercial general liability (“CGL”) policies contain standard, insurance industry-drafted language regarding an insurer’s duty to defend and indemnify its insured. The language typically states something like, the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of . . . ‘property damage’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages.” Commercial General Liability Insurance Policy Form No. CG 00 01 04 13, § I, Coverage A.1.a. (Insurance Services Office, Inc. 2012). “Property Damage” is defined as “[p]hysical injury to tangible property, including all resulting loss of use of that property” or “[l]oss of use of tangible property that is not physically injured.” Id. at § V, ¶ 17.a and b.
The second definition of “property damage” provides coverage when the allegations do not amount to physical injury of tangible property. However, insurers often attempt to strictly narrow the coverage available by arguing that certain types of lost use are not covered because they are merely the loss of economic privileges that accompany the property, such as the right to hold a liquor license or to use the property a certain way via a permit. In other words, insurers often argue that “loss of use” of tangible property requires the total loss of all uses on the property, not merely some uses. The California Court of Appeal recently rejected this argument. See Thee Sombrero, Inc. v. Scottsdale Ins. Co., 28 Cal. App. 5th 729, 239 Cal. Rptr. 3d 416 (2018). Continue reading “California Corner: Loss of Use under Commercial General Liability Insurance Policies Includes the Inability to Use a Property in a Particular Manner”
Julia K. Holt
Under California law, the insurer has the heavy burden of establishing there is no potential for coverage of an underlying claim. With respect to the duty to defend, “[t]o prevail, the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential. In other words, the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot.” Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 287, 300 (1993). The Ninth Circuit reconfirmed this fundamental principle earlier this year in Hanover Insurance Co. v. Paul M. Zagaris, Inc., No. 17-15477, 2018 U.S. App. LEXIS 5429 (9th Cir. March 2, 2018), when it upheld the district court’s decision that the insurer failed to establish that an exclusion for deceptive business practices applied to the entire proposed class action for an alleged kickback scheme. Continue reading “The Ninth Circuit Reconfirms that under California Law an Insurer Bears a Heavy Burden to Demonstrate an Exclusion Eviscerates Its Defense Duty”
Welcome to “California Corner,” dedicated to posts authored by our new team of Insurance Recovery attorneys based in our Los Angeles office. Partner Linda Kornfeld, who serves as vice chair of the Insurance Recovery group, Partner David Thomas and Of Counsel Julia Holt focus on national and California-specific issues, including property and weather-related business interruption issues, data breach and privacy issues, and professional liability, asbestos, and environmental liabilities. Their clients include telecommunications companies, universities, real estate developers, manufacturers, and nonprofit organizations around the country. We hope you find their perspectives informative and insightful!
Linda Kornfeld, David Thomas, and Julia Holt
Many companies in today’s global economy are dependent upon the efficient and disruption-free operation of their multinational supply chains. Unfortunately, such supply chains are vulnerable to numerous physical and non-physical elements, including natural disasters, information technology failures, cyberattacks, pandemics, climate change, and civil and political unrest. These vulnerabilities can, and often do, result in the disruption of business operations resulting in significant financial losses. Continue reading “Insurance Can Reduce the Financial Repercussions to Your Supply Chain of Superstorms, Wildfires, Climate Change, and Global Economic Disruptions”