Season One, Episode 9- Season Finale (It’s a Wonderful Blog)

“Every time an insurance decision is rendered,      

a Coverage Geek gets its wings.”

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However, unlike George Bailey, you will never catch us saying we wish this Blog “had never been born.”  Nah, we’re unrepentant- Scrooge with an OCD-like interest in Cali insurance law.  Hence, let the Ghosts of Coverage Present day appear!

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BETTER NOT MISCALL SAUL:  Graciano v. Mercury General Corporation et al. (2014) 231 Cal. App. 4th 414 (*status changed to published on November 12, 2014)

Graciano was struck by a car driven by Saul who was insured by California Automobile Insurance Company (CAIC).  Graciano’s attorney contacted CAIC alleging Graciano was injured by one of CAIC’s insureds but misidentified the driver as “Jose” and referred to Jose’s insurance policy.  After three weeks,  CAIC completed its investigation, identified the correct insured and policyholder and tried to settle the claim by way of a “full policy limits offer.”

Graciano rejected the settlement offer and filed a bad faith action against CAIC based on an alleged wrongful refusal to settle.  Graciano contended that CAIC should have more quickly discovered the correct facts (such as, by more promptly requesting a police report) and made a settlement offer more quickly.  The jury bought it and judgment was entered in favor of Graciano.

The Fourth Appellate District, Division One, reversed in favor of the insurer.  The Court noted: “An insured’s claim for ‘wrongful refusal to settle’ cannot be based on his or her insurer’s failure to initiate settlement overtures with the injured third party” (citing Reid v. Mercury Ins. Co. (2013) 220 Cal.App.4th 262, 277.)  The Court stated the obvious: “Because Graciano never demanded payment of Saul’s policy limits in exchange for a release of Saul’s liability, Saul would not have been protected even had CAIC accepted the terms of Graciano’s demand.”  The Coverage Geek says:  “No brainer.  Correct call.”

HOW FIREMAN’S FUND STOLE CHRISTMAS:  Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co., 2014 Cal.App. LEXIS 1073 (Cal.App. 1st Dist. Nov. 24, 2014)(*certified for partial publication)

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“And the Grinch, with his insurer-feet ice cold in the snow, stood puzzling and puzzling, how could it be so? …  And he puzzled and puzzled ’till his puzzler was sore. Then the Grinch thought of something he hadn’t before. What if COVERAGE, he thought, doesn’t come from a store. What if COVERAGE, perhaps, with premiums regularly paid, means a little bit more?”

Stephens XII purchased a liability policy from Fireman’s Fund for a commercial property in January 2007 and added property damage coverage on June 28.  On July 1, Stephens XII discovered that burglars had caused more than $2 million in property damage.  Within days, Stephens notified Fireman’s Fund.  Fireman’s Fund concluded that the damage was too extensive to have occurred in the brief period of the policy’s coverage.  In 2012, five years after the incident, Fireman’s Fund denied coverage on grounds that Stephens XII had concealed and misrepresented material information.

Under the policy at issue, Stephens XII could claim either actual cost value or replacement cost, but it was entitled to receive replacement cost only if it actually repaired the damage. Although Stephens XII did not repair the property, it asserted that it was excused from complying with the repair requirement because it was prevented from repairing the damage by Fireman’s Fund’s failure to accept coverage.  The Court of Appeals agreed: “When an insurer’s decision to decline coverage materially hinders an insured from repairing damaged property, procedural obstacles to obtaining the replacement cost value should be excused.”

LEGISLATIVE UPDATE: Happy Holidays!  Online ride-sharing companies Must Pony Up More Dough for Insurance .   Fa La La La La!

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Under recently passed Assembly Bill No. 2293, signed into law by California Governor Brown, online ride-sharing companies (Uber, Lyft, Sidecar etc.) will be subject to new insurance restrictions starting July 15, 2015.  Among the more onerous requirements: “Transportation network company insurance shall be primary and in the amount of at least fifty thousand dollars ($50,000) for death and personal injury per person, one hundred thousand dollars ($100,000) for death and personal injury per incident, and thirty thousand dollars ($30,000) for property damage.”  And  get this, the driver’s personal insurer is off the hook: “The participating driver’s or the vehicle owner’s personal automobile insurance policy shall not have the duty to defend or indemnify for the driver’s activities in connection with the transportation network company, unless the policy expressly provides otherwise.” The complete text of the bill can be found at: http://www.leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2293

TRADING COVERAGE PLACES

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“Trading Places” was a 1983 comedy starring Dan Aykroyd and Eddie Murphy.  The premise- what happens when two men from different worlds (Aykroyd, as high class commodities broker “Louis Winthorpe” and Murphy as street hustler “Billy Ray Valentine”) are “switched” as part of a social experiment by two unscrupulous curmudgeons (the “Duke Brothers”).  Murphy becomes the broker and Winthorpe is thrown into the cold Philadelphia streets.

We mention this firstly because this is a top ten all time Holiday movie; but more aptly, because of The Coverage Geek’s own “Trading Places” experience- from the comfy confines a coverage firm representing carriers to a “starting from the ground up” enterprise representing mid-level consumer/business policyholders.  If you haven’t seen the movie in the end, the Duke Brothers are in ruins and Winthorpe and Valentine are sipping drinks on  a yacht docked in an island paradise.  The last lines  “Looking good, Billy Ray.  Feeling good, Louis.”

We wish you all, except for the Duke Brothers, Happy Holidays and that you are all looking and feeling good.  The Premiere of Season Two of The Coverage Geek is February 9, 2015 (or thereabouts.)  Don’t miss it.

 

Season Two, Episode 13 (Down Goes Henkel! Down Goes Henkel!)

Fluor-ed and Flattened: The California Supreme Court’s Bruising KO of Henkel 

(Fluor v. Superior Court, No. S205889, August 20, 2015)

“Down Goes Frazier!  Down Goes Frazier!”  
Howard Cosell’s blustering voice boomed out this epic phrase as George Foreman pummeled Joe Frazier to the canvas for the first of six times on his way to a two round TKO in a much anticipated heavyweight match up.   The phase, destined to become a legendary part of sports lexicon, signaled the emergence of a new, menacing heavyweight champion.
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a fore

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History often repeats itself in other contexts.  On August 20, 2015, in Fluor v. Superior Court, the California Supreme Court battered an old and unsuspecting former champion into retirement-overruling Henkel Corp. v. Hartford Accdent & Indemnity (2003) 29 Cal.4th 934.

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To be fair, Henkel was a much feared champion in the heavyweight coverage world, dominating many challengers for the better part of a decade.  Henkel’s famed knockout punch came in the form of the California Supreme Court’s enforcement of “consent-to-assignment” clauses in an insurance policy. Such language was typically “[n]o assignment of this policy or an interest here is binding on Insurer without Insurer’s written consent.”

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In application, this often was a fearsome uppercut.  Unless an insurer consented in writing to permit the insured to assign its rights to a third party, that third party would have no rights to pursue coverage under the policy.  This most often happened in the context of an insured (Entity A) which sold its assets to third party, or “spun off” into a new entity (Entity B), with both parties fully expecting the insurance coverage to be part of the bargain.  Thereafter, Entity B would be in for a rude awakening when it called upon the insurance issued to Entity A to cover liabilities arising from the historic activities of entity A which, by contract, were now the legal responsibility of Entity B.

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Each side had a compelling argument.  The insurers argued that the above policy language gave them the right not to forced into a contractual relationship with a complete stranger to the original contract.  The policyholder, in turn, would contend that the insurer had voluntarily accepted an assigned risk, was paid premiums to undertake that risk, and rightfully should not be allowed to walk away from its obligations free and clear.   Henkel dominated the scene for years.  However, time has a way of catching up with champions.

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In Fluor, the Supreme Court sent Henkel into the retirement home for old fighters.   The original Fluor Corporation performed engineering and construction operations through various corporate entities and subsidiaries. Beginning in 1971, Hartford issued Fluor a series of comprehensive general liability policies from 1971-1986.   In 2000, Fluor incorporated a newly formed subsidiary “Fluor 2.”   Fluor 2 eventually was forced to bring an insurance coverage action against Hartford  to obtain defense and indemnity coverage for underlying asbestos suits involving continuous exposures to asbestos during the Hartford policy periods.   Hartford denied coverage relying upon the consent-to-assignment clause as enforced in Henkel.
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This time, the policyholder was ready with a fierce counterpunch in the form of Insurance Code section 520 which provides in pertinent part:  “An agreement not to transfer the claim of the insured against the insurer after a loss has happened, is void if made before the loss . . .”  But what is the “loss” in the context of third party insurance?  Is it the  loss suffered by the underlying claimant or is it a loss in the form of a judgment or settlement of that claim?   Presented with these uncertainties, the California Supreme Court initially wrestled with the issue of whether Section 520 applies to third party insurance at all, tracing decades of case law from California and other jurisdictions before proclaiming:  “the phrase ‘after a loss has happened’ in section 520 should be interpreted as referring to a loss sustained by a third party that is covered by the insured’s policy, and for which the insured may be liable . . . the statutory phrase does not contemplate that there need have been a money judgment or approved settlement before such a claim concerning that loss may be assigned without the insurer’s consent. (Id. at *26.)
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As Henkel, bloodied and battered, tried to beat the count, the Fluor Court administered the finishing touches on the champion’s reign: “after personal injury (or property damage) resulting in loss occurs within the time limits of the policy, an insurer is precluded from refusing to honor an insured’s assignment of the right to invoke defense or indemnification coverage regarding that loss. This result obtains even without consent by the insurer—and even though the dollar amount of the loss remains unknown or undetermined until established later by a judgment or approved settlement.”  (Id. at *29.)

Ain’t gonna be no rematch.
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COVERAGE GEEK BREAKING NEWS FLASH: 
BORG WARNER GETS OFF THE HOOK FOR $32.5M IN PUNITIVE DAMAGES

"Ladies and gentlemen, can I please have your 
attention?  
I've just been handed an urgent and horrifying 
news story.  
I need all of you to stop what you're 
doing and listen."
- Anchorman: The Legend of Ron Burgundy
A- ron-burgandy-breaking-news
  • Soto, et al. v. BorgWarner Morse Tec Inc., No. B252995 (Calif. 2nd Dist.)
  • plaintiffs’ expert analyzed financial condition of BorgWarner Inc. instead of BWMT
  • insufficient evidence of BWMT’s financial condition to enable the jury to make an intelligent assessment
  • Plaintiffs mistakenly relied on publicly available information

We know.  Soto is not an insurance coverage case.   Regardless, the lesson is important for those litigating bad faith insurance cases when it gets to the stage of attempting to prove (or disprove) a punitive damages claim.  Read on.

July 2015:  In Soto, et al. v. BorgWarner Morse Tec Inc., No. B252995 (Calif. 2nd Dist. Ct. App., Div. 4), the Court of Appeal reversed an award of $32.5 million in punitive damages in an asbestos case against an auto parts supplier, Borg Warner Morse TEC Inc. (“BWMT”) based on a determination that plaintiffs failed to offer evidence of  BWMT’s financial condition and ability to pay punitive damages.

Plaintiffs alleged that decedent developed mesothelioma as a result of exposure to asbestos in a GM assembly plant.The jury awarded plaintiffs $32.5 million in punitive damages.  On appeal, BWMT argued that plaintiffs failed to produce sufficient evidence to warrant the punitive damages award.  BWMT contended that evidence from plaintiffs’ expert should have been precluded because his testimony regarding the financial condition of BWMT was wrongly based upon information related to BorgWarner Inc. instead of BWMT, a separate business unit.

The Court of Appeal held that plaintiffs’ evidence of revenue was not enough to show whether BWMT would be able to pay the $32.5 million damages award without bankrupting it.  According to the Court, plaintiffs’ evidence established that “BWMT earned substantial revenues from one of its business lines” but was “silent in all other respects.”  Therefore, “even construed in the light most favorable to the plaintiffs, the testimony of their expert did not establish current information about BWMT’s overall financial condition  As such, there was insufficient evidence of BWMT’s financial condition to enable the jury to make an intelligent assessment of BWMT’s ability to pay a punitive damages award.

Compounding their errors, plaintiffs mistakenly relied on publicly available information to assess BWMT’s financial condition.   Just prior to the damages phase of the trial that plaintiffs realized that their economist had analyzed the wrong company.  Oops.

The sins here are fairly obvious but important nonetheless.  Although, plaintiffs had a “full and fair opportunity to engage in discovery” and obtain the correct financial information, they instead elected to take the wait-and-see approach.  As noted by the Court of Appeals, “plaintiffs did not undertake any effort to obtain the information at an earlier juncture, whether by issuing a subpoena, seeking a stipulation, or a making a motion pursuant to Civil Code section 3925, subdivision (c).  Instead, plaintiffs assumed BWMT would simply provide them with the necessary information. Accordingly, the Court of Appeal determined that plaintiffs should bear the consequences of their failure to diligently engage in evidence.  For you bad faith litigators out there, get the right forensic accountant and get them involved early with the direction of discovery.  In sum: wait-and-see equals no punitive damages.

COMING IN OCTOBER: YOUR FAVORITE CABLE TV SHOW RETURNS (COVERAGE GEEK STYLE!)   SAY . . . . MY . . . . NAME!

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Season Two, Episode 12 (Bride of Chucky, Mulligans and Evil Monkeys)

 The Bride of Bucky (Alterra Excess & Surplus Ins. Co. v. Snyder (2015) 234 Cal. App. 4th 1390 

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Bride of Chucky  (Universal Pictures, 1998) starring John Ritter and Katherine Heigl is the fourth installment of the “Child’s Play” movies about an infamous serial killer who, after death, finds himself reincarnated into a child’s toy with murderous consequences.  Here, we present for your coverage education an equally horrific tale of a famous inventor who, after death, finds his intellectual property branded into a child’s toy with tortious consequences.

“Bucky” Fuller was a famous designer, author, and inventor and “was particularly well known for popularizing the geodesic dome.” (Id. at 1393.)  Bucky died in 1983 and in 1985, Bucky’s estate (“Estate”) asserted its rights as successor in interest to all of Bucky’s rights.  (Id. at 1394.)

Maxfield & Oberton Holdings, LLC (Maxfield), without permission from Estate, launched a line of “Bucky” products including “Buckyballs”- a toy consisting of 216 round rare earth magnets packaged in a cube shape. (Id.) (Note: “Buckyballs” were ultimately recalled off the market after 1700 children were hospitalized after ingesting the magnets).  A press release by Maxfield admitted that Buckyballs were “inspired and named after famous architectural engineer and inventor, [Bucky] Fuller.” (Id.)

In 2012, Estate sued Maxfield in federal court and represented that the underlying action was properly venued in San Francisco because it was an “intellectual property matter.” (Id.) Maxfield tendered the defense of the underlying action to its insurer, Alterra Excess & Surplus Insurance Company (“Alterra”).  (Id. at 1395.)  Alterra agreed to defend under a reservation of rights and subsequently filed an action for declaratory relief against Maxfield and the Estate (as assignee of Maxfield’s rights) seeking a declaration that there was no coverage for Estate’s action.  (Id. )

Altera contended that there was no Personal and Advertising Injury coverage based on Exclusion (i) “Infringement Of Copyright, Patent, Trademark Or Trade Secret” which excluded:

“‘Personal and advertising injury’ arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights. Under this exclusion, such other intellectual property rights do not include the use of another’s advertising idea in your ‘advertisement’. However, this exclusion does not apply to infringement, in your ‘advertisement’, of copyright, trade dress or slogan.”  (Id. at 1403.)

Estate contended that exclusion (i) was not plain, clear, and conspicuous.  The Court of Appeal disagreed noting that the exclusion was an ISO industry form and appeared under a boldfaced heading “Exclusions” with each exclusion title in bold: “these factors satisfy the ‘conspicuous, plain and clear’ test for exclusions, i.e., that they ‘be positioned in a place and printed in a form which will attract the reader’s attention.’” (Id. at 1404)(citing Travelers Ins. Co. v. Lesher (1986) 187 Cal.App.3d 169, 184.)

Estate also argued that for exclusion (i) to apply, the policy must list each type of excluded intellectual property claim and that right to publicity claims are not within the language of the exclusion “other intellectual property rights.”  (Id. at 1408.) The Court rejected both arguments, noting as an initial matter that Estate cited no authority that each excluded activity must be listed and in fact the opposite.  (Id. at 1406)(citing Aroa Marketing, Inc. v. Hartford Ins. Co. of Midwest (2011) 198 Cal. App. 4th 781, 788 [“the fact that the right of publicity is not specifically listed after the phrase ‘any intellectual property rights’ does not suggest the exclusion does not apply . . .  the list is expressly nonexclusive.”)

With Estate reeling on the ropes, the Court leveled the death blow:  “The exclusion clearly applied to claims based on the right of publicity, as that right has been held to be an intellectual property right . . .  the estate’s rights, which derived from the estate’s position as successor to the rights of the decedent, were in fact registered, at least according to the estate’s own allegations.”  (Id. at 1406.)   Holding: Judgment Affirmed in favor of Altera.

Evil Insurer Monkey Denies Coverage for Cancer But Fails to Keep “A Breast” Of Its Rescission Rights (DuBeck v. California Physicians’ Service (2015) 234 Cal. App. 4th 1254)

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In 2004, DuBeck injured her breast and developed a lump.  Doctors discovered that the lump was cancerous in 2005.  Five days after the diagnosis, she submitted an medical insurance application to Blue Shield which checked “no” to various questions relating to whether she had diagnoses, symptoms, treatments etc. for “breast problems” and related maladies.  (Id. at 1257-1258.)

Blue Shield canceled cancelled the policy on the basis that DuBeck committed material misrepresentations in her application.  However, the cancellation letter expressly stated that the insurer was electing to cancel coverage prospectively, rather than rescind the policy, and that any claims for covered services incurred prior to the cancellation would be covered. Blue Shield further stated that the breast cancer “may have existed prior to the patient’s enrollment” and that processing of the claim was suspended “pending receipt of additional information requested.”  (Id. at 1258-1260.) DuBeck subsequently filed suit against Blue Shield for breach of contract and bad faith alleging that the Blue Shield had failed to pay covered claims while the policy was in force.   In its defense, Blue Shield asserted its right to rescind the policy, voiding from its inception.  (Id.)

The Court of Appeal held that Blue Shield had waived its right to rescind the policy by: (1) deciding to cancel the policy (rather than rescind) and (2) affirmed policy coverage up to the cancellation: “to effect a rescission a party must ‘promptly upon discovering the facts which entitle him to rescind . . . delay in seeking rescission may result in forfeiture of the right to rescind where the delay results in prejudice to the other party.’”  (Id. at 1264.) (citing Civ. Code §§ 1691 and 1693; Village Northridge Homeowners Assn. v. State Farm Fire & Cas. Co. (2010) 50 Cal.4th 913, 928.)

Further, the Court cited a second basis for rejecting Blue Shield’s attempt to exercise rescission.  Despite its 2005 statement that it coverage was suspended pending an investigation of the truthfulness of DuBeck’s application statements, it conducted no such investigation.  This inaction allowed the policyholder to “incur substantial medical expenses and dissuaded her from investigating the availability of government assistance.” (Id. at  1268.)    Holding: Reversed and Remanded in favor of DuBeck.

Second Appellate District: Mulligan Not Allowed to Take a Mulligan* (Mulligan’s Painters v. Safebuilt Ins. Servs., 2015 Cal. App. Unpub. LEXIS 1958 [Cal. App. 2d Dist. Mar. 20, 2015])

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*Mulligan (mŭl ĭ-gən) n.- a second chance to perform an action, usually after the first chance went wrong through bad luck or a blunder . . . best-known . . . in golf . . .” (www.en.wikipedia.org/wiki/Mulligan)

The participants in our round of golf today are: (1) Mulligan’s Painters, Inc. (Mulligan’s)- a painting contractor and would-be insured; (2) Preferred Contractor’s Insurance Company (PCIC)- the insurer; (3) Safebuilt Insurance Services (SIS)- the managing general agent of PCIC and (4) Carmona, a broker and simultaneously an agent for Farmers Insurance Company.

Mulligan’s believed that it had purchased PCIC liability policies from Carmona for the periods August 5, 2006 to August 5, 2007 and August 5, 2007 to August 5, 2008 without an interruption in coverage.  Why? you ask.  Only because Carmona provided Mulligan’s with Certificates of Insurance for the two policies and accepted premium payments for the two policies.  Mulligan’s also believed that Carmona was an insurance agent, rather than an insurance broker.  Again you ask, why?  Because Carmona’s business cards stated he was an agent (for Farmers) and Carmona’s office and décor carried the Farmers’ logo and stated “Farmers’ Insurance Agent.” (Id. at *3-4.)

One problem for Mulligan’s- beliefs don’t always match reality.  In reality, Carmona did not place the insurance with Farmers but instead with PCIC.  Also, unbeknownst to Mulligan, Carmona was not an agent for PCIC but was rather a broker.  Another problem for Mulligan’s, Carmona never forwarded the premiums he collected from Mulligan’s to PCIC for the 2007-2008.  He obtained a policy from another insurer a policy in October of 2007.  This left Mulligan’s with a gap in coverage for almost three months. [Note: Carmona was later charged with grand theft due to his failure to pay PCIC the premium he collected.]  Poor Mulligan’s- yet a third problem.  There was a fire at a residence where Mulligan’s was the painting subcontractor and yes, you guessed it, the fire was during the coverage gap. (Id. at *3-5.)

Despite these unfortunate circumstances, the Court declined to give Mulligan’s a Mulligan:  “The primary distinction between an insurance agent and an insurance broker is that an agent acts on behalf of the insurance company, while a broker acts on behalf of a policyholder.” (Id. at *10). As such, “[a]n insurer, as a principal, may be vicariously liable for the torts of its agent if the insurer directed or authorized the agent to perform the tortious acts, or if it ratifies acts it did not originally authorize.” (Id. at *11).  Although Carmona had acted as Mulligan’s agent with the placement of Farmers’ policies in the past, and held himself out as a Farmers’ agent, “these facts alone cannot create agency.” (Id. at *14.) There was no conduct by SIS that made Carmona an agent and therefore the certificates of insurance did not constitute binders. (Id.)  Holding:  Judgment Affirmed in favor of SIS.

Thanks for tuning in.  Join us next month for the latest and greatest episode of The Coverage Geek.

Season Two, Episode 11 (Sex, Lies and Hulkamania)

Sex, Lies, and Videotape” is a 1989 movie staring James Spader and Andie MacDowell about a repressed woman with a husband who had an affair with her sister.  I can hear your collective nagging refrain- what does that have to do with the world of insurance coverage?  And what’s the latest on California insurance law and the Obamacare case before the Supreme Court? There’s only one way to find out and you know what it is.  Read on.

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FOUR SEASONS, TWO INSUREDS, NO BRAINER (Bartile Roofs v. Emplrs Mut. Cas. Co., 2015 Cal. App. Unpub. LEXIS 1573 (Cal. App. 2d Dist. Mar. 5, 2015)

The issue presented to the Second Appellate District was whether Employers Mutual Casualty Company (“EMC”) had a duty to defend the “Evans Brothers” in a lawsuit against Bartile Roofs, Inc. (“Bartile”) arising out of construction of a Four Seasons hotel. Although the Evans Brothers were officers of Bartile, they were not named in the underlying lawsuit against Bartile. EMC defended Bartile under a reservation of rights and the Evans Brothers without reservation.

A Wyoming district court held that EMC had no duty to defend Bartile which was affirmed by the Tenth Circuit. EMC then stopped its defense of the Evans Brothers. The Evans Brothers argued that EMC had waived, or was estopped, from denying its defense to the Evans Brothers given the failure to reserve its rights. EMC prevailed on demurrer at the trial court stage.

On appeal, the Evans Brothers argued that: (1) they fell “within the group of fictitiously named cross-defendants,” were “overtly potential cross-defendants” in the underlying action; and (2) that “Lew Evans” and a “Mr. Evans” were specifically mentioned in the operative pleading.  As such, the Evans Brothers contended that they were potential defendants, faced potential liability, and EMC was required to defend- i.e., a “constructive tender” of the defense.

Bzzzzz! Wrong answer, Evans Brothers, thanks for playing, there are some fabulous door prizes for you on your way out. In other words, the Court of Appeal made short work of the Evans Brothers’ argument: “An insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.” (citing Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.)  Further, an insured may not “speculate about unpled third party claims to manufacture coverage.” (citing Hurley Construction Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 538.)  As opposed to “constructive tender,” the duty to defend only arises upon the insured’s actual tender of a defense. Buss v. Superior Court (1997) 16 Cal.4th 35, 46.

In simple terms- not named, not tendered, not a duty to defend. Duh.

COVERAGE GEEKAMANIA IS RUNNING WILD- HULK HOGAN SEX TAPE CLAIM SETTLED BY INSURER

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On March 6, 2015, Gawker Media LLC (“Gawker”) and Nautilus Insurance Co. (“Nautilus”) announced the settlement of a lawsuit before the United States District Court for the Southern District of New York (1:14-cv-05680) regarding Nautilus’s duty to defend Gawker in a lawsuit by iconic ex-professional wrestler Hulk Hogan.  Hogan (aka Terry Bollea aka “The Hulkster”) alleged in the underlying $100 million Florida federal court lawsuit that Gawker tortuously invaded the Hulkster’s privacy by posting online a secretly recorded sex tape in 2012.  (Editor’s Note: The Hulkster was caught performing his amorous “wrestling moves” on the ex-wife of celebrity of celebrity DJ “Bubba the Love Sponge.”)

Nautilus filed a lawsuit against Gawker in 2014, seeking declaratory judgment that the policy did not provide coverage and seeking reimbursement of the defense costs it had incurred.  Nautilus had issued a CGL policy to Gawker with $1 million per occurrence limits.  Nautilus disclaimed coverage on the grounds that coverage was not triggered (no “bodily injury” during the Nautilus policy period) and was further barred by various exclusions (exclusions for “Expected or Intended Injury”  and  “Personal and Advertising Injury”).  Gawker challenged the disclaimer on the grounds that the Nautilus policy covered “office liability exposure” and that the Hulkster’s claim implicated this coverage.  However, a “Limitations of Coverage” endorsement limited such coverage to exposure arising at Gawker’s Elizabeth Street Manhattan location (i.e., not where the Hulkster “got his groove on.”)  Gawker further argued that the Nautilus policy covered damages from bodily injury, which under New York law “indisputably include emotional distress and mental anguish” under New York law.

Who was right?  We’ll never know for certain.  It settled.

THE SUPREMES GET A SECOND WHACK AT OBAMACARE (King vs. Burwell)

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Few insurance cases reach the United States Supreme Court.  King v. Burwell, argued on March 4, 2015, is one such case.

This Supreme Court appeal arises out of a lawsuit challenging U.S. Treasury Regulation, 26 C.F.R. § 1.36B-2(a)(1), issued under the Patient Protection and Affordable Care Act (ACA). That regulation extends tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the ACA.

Section 1311 is the definition section of the ACA and defines an Exchange as a government agency established by the state. Section 1321 states that if a state does not set up an Exchange, then the Federal government will establish and operate such Exchange.  The challengers argue that the text of the ACA only allows for subsidies on state-run exchanges, and that the regulation as implemented by the IRS, providing for subsidies on state-run exchanges as well as federal exchanges, exceed the authority Congress granted to it.  The challengers further contend that only residents of states that set up their own exchanges can get federal subsidies to help pay the premiums.

Roughly three dozen states did not establish their own exchange. Those in favor of the law assert that if it is invalidated, the health care markets could be thrown into disarray, force a spike in insurance premiums and imperil the rest of the law.

As concisely summarized by one prominent Supreme Court Blogger, the challengers argue that Congress intentionally restricted payment of subsidies to state exchanges to induce states into setting up exchanges so their citizens could receive subsidies whereas the government argues that courts can look outside the text of a statute to consider Congress’s  intended policy objectives. (See Denniston, Lyle (November 7, 2014) “Court to rule on health care subsidies.” SCOTUSblog.)

Prediction Time

To be clear- we express no political inclination in this case.  If you please, this is purely and plainly prognostication.

Court watchers count four justices as “in the bank” for purposes of upholding the ACA.  As such, the outcome of the case  hangs on the votes of Justice Kennedy and Justice Roberts.  If either one of them hold in favor of the law then the law will persist.  During the oral argument, Justice Kennedy suggested that the challenger’s argument raised serious constitutional problem affecting the relationship between the states and the federal government and if the challengers’ argument is true, “the states are being told either create your own exchange or we’ll send your insurance market into a death spiral.” On the other hand, he said, “It may well be that you’re correct as to these words, and there’s nothing we can do. I understand that.”  Good luck guessing  where Kennedy winds up.   For the sake of argument, let’s assume that Kennedy sides with the challengers of the ACA and not the government.

In such event the “cheese stands alone”- Chief Justice Roberts.  Again.  Remember that in 2012, Roberts had all but started to swing the hammer that would have driven the nail into the coffin of the ACA in National Federation of Independent Business v. Sebelius.  Then, at the eleventh hour, Roberts switched direction, siding with four liberal justices that declared that the legislatively-declared “penalty” was constitutional as a valid exercise of the Congressional power to tax, thus upholding the individual mandate.  The Coverage Geek predicts that whatever judicial philosophy compelled Chief Justice to switch sides will occur again.  Lightning will strike twice and the ACA will survive again by a 5-4 vote.

That’s the call, whether you like the result or not.  Or, as Hulk Hogan was famous for saying before matches, “Whatcha gonna do brother?”

Season Two, Episode 10 (Wheel of Coverage Jeopardy!)

We’re back. Happy Birthday to us, one year old, the candles are blown out and the presents ripped open.   As Vince Vaughn shouted from a diner tabletop in Swingers: “Our little baby‘s all grows up!” [sic]

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BUT-before your Mom picks you up- we still have party games. Nothing as lame as “Pin the Tail on the Donkey.” Today, we tackle classic game shows. So with the niceties now out of the way (and you’re distracted by the requisite level of trivial but strangely à propos cultural references) . . .  Vanna, please turn over the first “CoverageTile,” so we can play . . . .

WHEEL . . . OF . . . COVERAGE!

WheelOfFortune

PAT, I’D LIKE TO SOLVE THE PUZZLE- IS IT “PURPOSEFUL AVAILMENT”?  [Greenwell v. Auto-Owners Ins. Co., 2015 Cal. App. LEXIS 73 (Cal. App. 3d Dist. Jan. 27, 2015)]

The Court came out of the box with a poignant observation: “sometimes life can be like an essay question on a law school exam.”  Three states had a nexus to the insurance dispute at issue- (1) a California policyholder, (2) who owned a building damaged by fire in Arkansas, (3) involving a policy issued by a Michigan insurer, (4) through an Arkansas agent.  The question- was the trial court correct in declining to exercise specific jurisdiction over the insurer from another state despite the policyholder residing in California?

Answer: Yes

The Standard: “if general jurisdiction is not established, a nonresident defendant may still be subject to California’s specific jurisdiction if a three-prong test is met. [Citation.] First, the defendant must have purposefully availed itself of the state’s benefits. Second, the controversy must be related to or arise out of the defendant’s contacts with the state. [Citation.] Third, considering the defendant’s contacts with the state and other factors, California’s exercise of jurisdiction over the defendant must comport with fair play and substantial justice.” (Id. At *12.)(emphasis added.)

The Reasoning:  Although the insurer’s California contacts put it on notice that it might be subject to litigation in California (based on the policy issued to a California resident), the contacts “were far from extensive.” (Id. at *28) (citing Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444.)  As such, the Court decided that the nexus between the lawsuit and the insurer’s California contacts were insufficient to warrant the exercise of specific jurisdiction over the insurer. (Id. at *28.)

THE NEXT CATEGORY IS . . . Foul Balls and Firetrucks. [Gonzalez v. Fire Ins. Exch., 2015 Cal. App. Unpub. LEXIS 832 (Cal. App. 6th Dist. Feb. 5, 2015)]

In 2007, Gonzalez alleged she was sexually assaulted by ten members of the local college baseball team. Gonzalez filed a civil lawsuit against the alleged assailants one of whom (Rebagliati) sought a  defense through his parents’ homeowner’s and personal umbrella policies, issued by Fire Insurance Exchange and Truck Insurance Exchange (collectively “FireTruck”).  FireTruck denied coverage. Rebagliati settled with Gonzalez and assigned his rights against the insurers.  Gonzalez sued FireTruck for bad faith and breach of contract. The trial court granted summary judgment for FireTruck. Gonzalez contended on appeal that the trial court erred in granting summary judgment because: (1)  there was a potential for coverage in her underlying action due to allegations of accidental bodily injury, false imprisonment, invasion of privacy, and slander and (2)  Truck’s umbrella policy does not require an “accident” for personal injury coverage.

Was the umpire correct in calling Gonzales out at the plate?

Answer: Yes and no.  Judgment was proper for Fire, because none of Gonzalez’s claims alleged an accidental occurrence triggering insurance coverage. However, Truck was on the hook because it “failed to conclusively demonstrate its policy exclusions eliminated all potential for coverage.” (Id. at *2.)

Thanks for playing Wheel of Coverage. However, as much as we admire the attributes of 80s vintage Vanna, we seek higher intellectual ground.  Alex Trebek, come on down for a round of

INSURER JEOPARDY!

Jeo

ALEX, LET’S GO WITH “FRENCH INSURANCE COMPANIES WITH FORUM SELECTION CLAUSES” FOR $1,000.  [Certain Underwriters at Lloyd’s London v. Axa Corporate Solutions Assur., 2015 Cal. App. Unpub. LEXIS 815 (Cal. App. 2d Dist. Feb. 5, 2015)

In 2008, a Metrolink train collided with a freight train near Chatsworth, California, killing two dozen people.  Connex, was insured  by AXA  through its French parent company.   The French policy designated France as the forum for “[a]ny litigation regarding the application of th[e] contract.”  AXA refused to pay into a  common fund to compensate the victims.  The insurers that did participate in the fund (“Participating Carriers”) sued the French insurer for contribution.  At issue was whether the Participating Carriers were bound by the forum selection policy provision.

The Court held that the Participating Carriers were bound, rejecting their argument that the contribution action derived from principles of equity rather than the policy:  “where, as here, the issue is whether a forum selection clause applies, what matters most is whether the non-party plaintiff is . . . ‘assert[ing] the rights of those who are parties to the contract.” (Id. at *8.) (citing Net2phone, Inc. v. Superior Court (2003) 109 Cal.App.4th 583, 588.)

THE ANSWER IS: WHAT IS EQUITABLE SUBROGATION? [National Union Fire Ins. Co. of Pittsburgh, PA v. Tokio Marine & Nichido Fire Ins. Co., 2015 Cal. App. LEXIS 103 (Cal. App. 2d Dist. Feb. 4, 2015)]

National Union (“AIG”), an excess carrier, sought equitable subrogation from Tokio Marine (“Tokio”), a primary insurer.  AIG sought recovery of the costs of defending and indemnifying Costco (the insured, a defective tire seller) in a lawsuit filed by Daer (injured by defective tire.)  AIG sought to prove that the defect was the responsibility of the tire manufacturer, Yokohama, a co-defendant.  The trial court barred AIG from presenting proof of a tire defect  to prove that it except for the expert opinions designated by Daer in the underlying case.   As such, AIG’s expert could not testify that the tire at issue which was defective.  In addition, the trial court sustained Tokio’s demurrer to AIG’s subrogation claim with respect to bad faith.

The Court granted AIG’s appeal on the evidentiary issue and reversed the judgment in favor of Yokohama because of the exclusion of  “relevant and material expert evidence on a matter properly subject to expert opinion.” (Id. at *4-5.)   The Court stated that if it accepted  Yokohama’s position   “a business sued for both products liability and negligence would be required to marshal evidence of its own liability to the injured plaintiff or risk impairing its indemnity rights vis-à-vis the product manufacturer.” (Id. at *20.)   However, the Court also ruled that AIG’s claim against the primary insurer for equitable subrogation of the insured’s bad faith claim was properly dismissed because: (1) AIG’s settlement payment was not a loss by the insured and (2) the excess insurer had not reimbursed the insured’s payments toward the settlement.  As such, neither paymen “met the specific requirements for pleading a bad faith subrogation claim” set forth in Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 432. (Id. at *25-26.)

 WED LIKE TO THANK YOU ALL FOR PLAYING.  WE HAVE A FABULOUS SELECTION OF FLOOR PRIZES FOR YOU AS WELL AS THE HOME-VERSION OF OUR GAME.

Season One, Episode 8 (Montrose Rises From the Grave and Other Horrors)

The Editor hard at ork.

The Executive Producer of The CG hard at work on this Episode.

“Quid Pro Quo, Clarice?” Yes, we’ve been “silent as a lamb” since August.  That’s because we’ve been brewing up a witches’ cauldron containing the most monstrous, horrific Halloween insurance coverage blog ever written.   [In Rod Serling voice] For your morbid amusement, allow us, if you will, to present a horrific trilogy of coverage fright.  [Cue in 1980’s synthesizer] But first, be forewarned: “Though you fight to stay alive, your body starts to shiver, for no mere mortal can resist, the evil of {The Coverage Geek] Thriller.” –Vincent Price (1983)

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COVERAGE GEEK FEATURED DECISION [August 29, 2014]: Douglas, et al. v. Fidelity National Ins. Co. (2014) 229 Cal.App. 392  Our first tale, ironically, begins in the realm of the First Appellate District-  a virtual “Castle of Dracula” for insurers where many  unwary carriers have met their doom.  But this story involves a far greater, often nightmarish, threat to an insurance company- the “insurance services company.”

In 2010, Betty Douglas and husband (the “Douglases”) went to a business call “Cost-U-Less” (Editor’s Note: the name itself is an early warning sign of impending doom) to assist her in obtaining homeowner’s insurance.   Once there, an InsZone Insurance Services (“InsZone”) employee assisted the Douglases over the phone and asked them various questions.  Subsequently, the Douglases went to a Cost-U-Less store to sign the policy application, replete with mysterious blank spaces- omitted were questions about the home’s electrical panels, whether the structure was occupied by more than one family, if there were roommates or boarders in the home and whether business was conducted on the property.

Thereafter, in 2011, a fire damaged the Douglases’ home and they made a claim with Fidelity to recover for the loss.  While not reflected in the application, in fact, at the time of the fire, the Douglases had been operating a business out of their home, “On the Right Path,” which boarded two mentally ill clients.  After Fidelity completed its claim investigation, it rescinded the policy on the grounds that the insurance application contained material misrepresentations of fact, without which Fidelity contended it would not have issued the policy.

In 2013, the trial court entered an amended judgment for the Douglases for approximately $800,000.   Fidelity appealed the trial court’s order denying its motion for a new trial.  The error asserted by Fidelity was that the jury was not permitted to decide  whether InsZone was a broker for the Douglases.  As noted by the Court of Appeal: “The significance of this issue is that an affirmative finding would have allowed the jury to hold plaintiffs responsible for any misrepresentations in the insurance application, whether attributable to them directly or indirectly through InsZone’s conduct.”  (Id. at 407.)

The Court of Appeal reversed the judgment in favor of Fidelity.  Under Insurance Code section 331, “material misrepresentations or concealment of material facts in an application for insurance entitle an insurer to rescind an insurance policy, even if the misrepresentations are not intentionally made.” (Id. at 408.)  Further, “if the insurance application was prepared by an insurance broker (the agent of the insured), the application’s contents are the insured’s responsibility. (Id. at 410.)   Given that there there was “substantial evidence” in the view of the Court of Appeal  to support a finding that InsZone was “acting as a broker rather than an agent” the issue should have been submitted to the jury for determination. (Id.)

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Candlewood
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COVERAGE GEEK UPDATE [August 22, 2014]:   Yu v. Landmark American Ins. Co.   2014 Cal.App. Unpub. LEXIS 5966. In this unpublished decision (not citeable per California Rule of Court 8.1115(b)), the Fourth Appellate District, Division 3,  held that “an exclusion for the insured’s prior work barred coverage as a matter of law.” (Id. at *1.)

Yu was the owner of the Candlewood Suites Hotel (“Candlewood”) which was under construction.   Yu contracted with ATMI Design Build (ATMI) as the general contractor. ATMI subcontracted with C&A Framing Company (“C&A) to perform framing at the Candlewood project.   C&A was fired by ATMI in 2003 before it completed the work required under the subcontracts.

In 2004, Yu brought suit against ATMI for alleged construction defects.   An amended complaint was later brought against ATMI and approximately 35 subcontractors including C&A who was sued for failing to complete framing.  C&A tendered his defense to Landmark which declined the tender based on the “Your Prior Work Exclusion.”  This exclusion barred coverage for “‘property damage’ . . . . arising out of  [C&A’s] work prior to 9/18/04.” “[Y]our work” was defined to include  “[w]arranties or representations made at any time with respect to the fitness, quality, durability, performance or use of ‘your work.'”  C&A was defended by another insurer which paid to settle the case on his behalf for a full release of liability.

In 2009, Yu sued Landmark and other insurers for breach of contract and bad faith based on a purported assignment of rights. The trial court granted Landmark’s summary judgment motion based upon the Your Prior Work Exclusion.  On appeal, Yu contended that: (1) “the exclusion is ambiguous and must be construed in favor of plaintiff”; and (2) “the definition of ‘your work’ under the Policy includes warranties, which [Landmark] failed to consider when denying coverage.”  As to the latter, Yu asserted that the policy phrase “[w]arranties . . . made at any time,” must be interpreted to mean warranties made even before the Policy was in effect.

The Court of Appeal quickly dispatched with Yu’s ambiguity argument noting that the heading of the provision “EXCLUSION — YOUR PRIOR WORK” was “prominent, clear and explicit and is not used in a technical sense.”  (Id. at *9.)  Further, the Court noted that Yu had pointed to nothing in the policy that would demonstrate that the intent of the policy was to cover any work done prior to the inception of the policy. (Id.)

As to the issue of Landmark’s failure to investigate whether C&A made any warranties, the Court of Appeal was equally decisive: “The arguments [Yu]  raises are irrelevant because, pursuant to the [Landmark policy] language, coverage for the warranties was excluded as a matter of law. Therefore, it is irrelevant whether or not [Landmark] investigated, as [Yu] argues it should have. If, as a matter of law, there is no potential for coverage, an insurer will not have a duty to defend the insured regardless of when it acquired that knowledge. ”  (Id. at *12.)

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Montrose3
though you fight to stay alive
Your body starts to shiver
For no mere mortal can resist
The evil of the thrillerLyrics from <a href=”http://www.elyrics.net”>eLyrics.net</a&gt;
And though you fight to stay alive
Your body starts to shiver
For no mere mortal can resist
The evil of the thrillerLyrics from <a href=”http://www.elyrics.net”>eLyrics.net</a&gt;

 COVERAGE GEEK CORRESPONDENT REPORT

Zomb

For most people, Halloween conjures up scary thoughts of spooky images… ghouls, goblins, graveyards … everything undead.

For insurers involved in claims disputes, those scary thoughts may include the resurrection of multi-party, multi-million dollar litigation that has laid dormant and coma-like for years, only to be revived when lightening jolts the bolted neck.  And the monster awakens.  While most cases probably do not qualify as “monsters,” most don’t involve issues that inspired a national movement, such as that prompted by the use of the pesticide DDT, addressed in Rachel Carson’s 1962 book, Silent Spring.  And most don’t qualify as the oldest case, with a contorted history of related litigation responsible for shaping significant issues of California law, on the docket of the Los Angeles Superior Court.  And most don’t involve a volume of documents that could only be generated by taking a chainsaw to an entire forest full of trees.

But Montrose Chemical Corp. v. Canadian Universal Ins. Co., BC 005158, does.  “Montrose” (not to be confused with multiple similar-sounding other actions filed by this insured against insurers over the years) was filed in 1990, before The Coverage Geek was licensed to practice law.  The case, which devolved into one against Montrose’s excess insurers, was stayed in 2006 to allow underlying environmental actions to proceed.  Indeed, a “Montrose stay,” a term coined from an earlier “Montrose” opinion in the early 1990s, was imposed to allow underlying issues of liability to be determined prior to certain coverage issues, so as not to prejudice Montrose in its coverage action.  In July 2014, Judge Elihu Berle lifted the stay of litigation pursuant to Montrose’s request to allow its coverage action against its excess insurers to proceed.

According to Montrose’s operative complaint, both the federal and California state governments sought damages resulting from the release of hazardous substances in an around Los Angeles between 1947 and 1982.  Reportedly, the governmental entities have sought in excess of $1 billion in connection with the investigation and cleanup of various areas.

*A special thanks to our Coverage Geek Correspondent (“CGC”) reporting from the field Linda Bondi Morrison, Partner at Tressler LLP, Irvine, CA  (a top-notch national insurance coverage firm) who filed this report.

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[BTW, if you too would like to be a CGC and have something important to say, submit it to the Editor  (nick@nrandrea.com.) ] 

Season One, Episode 7 (Attack of the Teenage Mutant Pigmen, Pulp Fiction, Street Surfing, Etc.)

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Busted.  You caught us.  But look at it from our perspective, how do we follow up “The Avengers” and classic Clint Eastwood Spaghetti Westerns with . . . Teenage Mutant Ninja Turtles?  Listen close, this is a topic-driven blog, we can only work with what the California courts give us.   So what, exactly what, would you do differently? (say “what” one more time, we double dare you.)   

Oh you’re finished . . . then allow us to retort.

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Today, we’re going to talk Mutant Pig Warriors (and the women who love them) as well as the thrills of “Street Surfing” and other oddities in no particular order, and all of it will help you keep up your fighting skills in insurance coverage law- a “spoonful of sugar and some (coverage) medicine go down.”

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And away we go . . .

 

Ted (Ted Maslo v. Ameriprise Auto & Home Insurance (2014) 227 Cal. App. 4th 626)

Never underestimate the Herculean task of finding something culturally relevant to reference in a blog with each and every  case.  In this instance, there was not much to go on, a pretty “Plain Jane” case.  The  insured’s name was “Ted” which I desperately Googled.  The results in no particular order were “Ted” the movie, Ted from the TV show “How I met Your Mother,” Ted Cruz (Sen. Tex.) and Ted Bundy (Serial killer).  I’m going with “Ted” the movie about a lecherous teddy bear, but I’m not sold on it (the first draft was the TV show, “How I Met Your Coverage” but that didn’t quite cut it.)

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The substance:Ted”was the insured on an auto policy issued by Ameriprise.   After being injured  by an uninsured motorist, Ted filed a claim seeking the uninsured motorist coverage policy limit.  The insurer demanded arbitration. After being awarded $164 thousand in arbitration, Ted sued the insurer for bad faith. The Second Appellate District held that the complaint “adequately stated a claim for bad faith when it alleged that the insurer, presented with evidence of a valid claim, failed to investigate or evaluate the claim, insisting instead that its insured proceed to arbitration.”

“What exactly is ‘Street Surfing'”?  Street Surfing, LLC v. Great American E&S Ins. Co. (9th Cir. 2014) 752 F.3d 853

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I asked my 14 year old and 13 year old sons this very question and got only eye rolls- Dad, how could you not know, how incredibly lame!  Yes, I suppose I am.  Apparently, “Street Surfing” has to do with a skateboard-like implement called a “caster board,” but is more akin to snowboarding or surfboarding outdoors, or something like thatOn June 10, 2014, in the above-referenced decision, the Ninth Circuit Court of Appeals considered a coverage dispute arising out of Street Surfing, LLC’s tender of a trademark infringement lawsuit to Great American.  The insured first published advertisements, including the infringing trademark, prior to the commencement of the subject policies.  The Ninth Circuit held that the “first publication exclusion” barred coverage:  “Because the Street Surfing logo was published [by the infringer] before coverage began, the prior publication exclusion bars coverage of injuries caused by that affixation during the policies’ coverage periods.”

Mike Rovner Construction v. Liberty Surplus Ins. Corp. (Unpublished), 2014 Cal.App.Unpub.LEXIS 5416 (2014)

The Court of Appeals held that  Liberty Surplus Ins. Co. was not obligated to cover a construction company’s  (Rovner) bill for repairing defective shower unit parts utilized in apartment renovations between 2007 and 2009.   Without  any suit being filed against Rovner, Rovner sued Liberty for coverage.   The basis for the Court’s decision in favor of Liberty was there was no “suit” triggering the insurer’s coverage obligations  (Citing Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945 (2001), and Foster-Gardner v. Nation Union Fire Ins. Co. (1998) 18 Cal.4th 857.)

Heed the Anguished “Oink” of the Pig Man

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I promised my law school students that I would give them a “hint” to one of the questions in their final exam in this edition.  Here it is class- Woo v. Fireman’s Fund Ins. Co. (Wash. 2007) 164 P.3rd 454.

The gist: Woo, a dentist, had a policy with Fireman’s which included coverage for “professional liability” including coverage for “dental services.”  The good doctor thought it would be hilarious to implant boar tusks in the mouth of his assistant Alberts (the joke- she being a fan of “potbellied pigs.”)  Snapshots were taken of the unconscious Alberts with boar tusks, although the correct human teeth, mercifully, were installed before she woke up.  Someone on Woo’s staff shared the snapshots with Alberts who filed suit.  Woo sought coverage from Fireman’s.

The holding: “Fireman’s had a duty to defend under Woo’s professional liability provision because the insertion of boar tusk flippers in Albert’s mouth conceivably fell within the policy’s broad definition of the practice of dentistry.”

The Commentary:  Maybe your definition of “dentistry” differs from mine.  But I would call implanting boar tusks into an unwilling patient “battery.”  Hence no coverage in view of The Coverage Geek.   Study hard, my students.

Coverage News Alert: Do Insurers Sued For Bad Faith Enjoy an Exception to the Rule of Mediation Confidentiality?*

Way back in November 2013, a federal district court (Central District of CA., Southern Division) held in Milhouse v. Travelers Commercial Ins. Co., that an insurer, faced with a bad faith lawsuit was allowed to introduce evidence of statements made in the mediation by the policyholder, statements previously thought to enjoy a confidentiality privilege.  For your reference, we provide the order, see page 23 .(Order_Mot for Remit_MSJ re New Trial.pdf ).  We know, November 2013 is not a “recent” development.  The recent development, the reason why you tune in with baited breath to The Coverage Geek, is as follows- briefs have been filed with the Ninth Circuit in challenge to the decision, particularly as to the due process concept in the district court’s decision and, alternatively, to certify the question to the California Supreme Court.  Stay tuned.

*From our own “Correspondent In the Field” Rachel K. Ehrlich, Ehrlich Mediation & Dispute Resolution Services, who helped file this report.

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We thank Ms. Ehrlich for her Coverage Geek Correspondent Report.  We hope to receive many such reports in the future.  BTW, if you too would like to be a CGC and have something important to say, submit it to the Editor (hint the e-mail rhymes with nick@nrandrea.com.  OK, caught us, not a hint, that’s the actual address.)  Peace through strength my fellow Geeks.