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Recent Rulings & News

Insured Must Exhaust Lower Layers of Coverage Before Accessing Higher Layers of Coverage, If Language of Excess Policies So Requires

"Professional Services" Exclusion Bars Coverage for Pipeline Owner's Liability for Explosion Arising Out of Failure to Mark Pipeline

Insurer Not Entitled to Rescind Based on Insured's Answers to Ambiguous Questions in Application

Cracking of Underground Tank's Sheathing Was Not "Collapse" Where Policy Expressly Stated That "Collapse" Did Not Include "Cracking"

"Genuine Dispute" Doctrine Does Not Necessarily Insulate Insurer from Suit Alleging Bad Faith Delay in Paying Underinsured Motorist Benefits

Where Building Was Not Total Physical Loss, Insurer Was Obligated to Pay Cost of Repair Less Depreciation, Which Was More Than Pre-Loss Fair Market Value

If Proposed Settlement Invades Excess Layer, Excess Insurer Can Either Approve Settlement, Reject It and Take Over Defense, or Face Suit for Reimbursement

Excess Liability Policy Covers Additional Insured Only Where Named Insured's Acts or Omissions Cause Injuries to Claimant

No "Occurrence" Where Insured Contractor Knew About and Intended to Perform Defective Work in Hope or Mistaken Belief That Defective Work Would Not Cause Property Damage

Personal Auto Policy's "Non-Owned" Auto Coverage Inapplicable Where Insured Had "Regular Use" of Company Vehicle

Replacement Cost Regulation Enacted by Department of Insurance Held Valid by Supreme Court

Insurer Has Duty to Defend Insured Fireplace Contractor Against Suit Involving Potential "Pyrolysis" Occurring During Policy Period, Even Though Resulting Fire Did Not Occur Until After Policy Period

2016 Annual Review of California Insurance Law (PDF)

CGL Policy's "Mold" Exclusion Does Not Relieve Insurer of Duty to Defend Insured Against Suit Alleging Property Damage Arising from Both Water Intrusion and Mold

Insurer Has No Duty to Defend Insured Developer Against Suit Alleging Fraudulent Concealment of Construction Defects

Insurer Properly Cancels Auto Policy Due to "Substantial Increase in Hazard Insured Against" After Insured Fails to Respond to Insurer's Request For Information Needed To Underwrite Risk

Insurer's Failure to Accept Policy Limit Demand That Preserved Claimants' Right to Recover Criminal Restitution Against Insured Renders Insurer Liable for Subsequent "Excess Judgment"

Where Primary Insurer Fails to Settle Within Primary Policy Limits, Forcing Excess Insurer to Contribute to Eventual Settlement, Lack of "Excess Judgment" Does Not Bar Excess Insurer's Suit Against Primary Insurer

When Auto Insurer Elects To Repair Vehicle to Pre-Accident Condition, Insurer Is Not Also Required to Pay for Resulting "Diminution in Value" to Vehicle

Mere Breach of Contract, Without More, is Not Sufficient to Establish "Wrongful" Retention of Policy Benefits Under Financial Elder Abuse Statute

In Calculating Ratio of Punitive Damages to Compensatory Damages, Compensatory Damages Should Include Brandt Fees, Whether Such Fees Are Awarded by Jury as Part of Verdict or by Trial Judge after Verdict

Controlling Shareholder of Insured Corporation Does Not Have "Standing" to Seek Declaratory Relief Against Corporation's Insurers

In Suit Alleging Property Damage Occurring Over Multiple Years, Successive Primary Insurers Must Contribute Toward Insured's Defense Costs, Notwithstanding "Other Insurance" Language in One Insurer's Policy

Insurer Has Duty to Defend Insured Bedding Manufacturer in Class Action Lawsuit Arising from Sale of Allegedly Defective Mattresses

Business Interruption and Extra Expense Coverage for Off Premises Damage to Property of "Direct Supplier" Did Not Apply Where Manufacturer Did Not Have Contractual Relationship with Supplier's Subcontractor

"Following Form" Excess Liability Policy Does Not Include Uninsured Motorist/Underinsured Motorist Coverage Provided In Underlying Primary Policy

Uninsured Tortfeasor Can Assign Claim Against Broker, and Rule of Superior Equities Does Not Apply to Contractual Assignment

"Non-Owned" Auto Coverage Does Not Apply Where Non-Owned Vehicle Is "Furnished or Available" for Insured's "Regular Use"

Language in All-Risk Policy Did Note Override Predominant Cause Doctrine, and Insurer Bore Burden of Proving Collapse Exclusion and Negating Exception


Liability Policy's Exclusion for "Subsidence" Resulting From Insured's "Operations" Bars Coverage for Landslide Allegedly Resulting From Insured's Maintenance and Construction Activities

Liability Insurer Has No Duty to Defend Tile Subcontractors Against Claims Arising from Fracturing of Tiles Caused By Alleged Improper Installation

Property Insurer Had No Obligation to Reimburse Mitigation Expenses in Absence of Otherwise Covered Loss

"Escape" Type "Other Insurance" Clause Does Not Excuse Insurer from Contributing Toward Defense Costs Which Another Insurer Pays on Behalf of Mutual Insured

Pursuant to Insurance Code Section 520, Once "Loss" Happens, Insured May Assign Right to Recover to Third Party

Defending Insurer Not Liable for Excess Judgment Where Settlement Demand Exceeded Applicable Policy Limits and Insured Stipulated to Judgment Without Insurer's Consent

Insurer May Seek Reimbursement of Allegedly Excessive Legal Fees Directly from Independent "Cumis" Counsel

Insurer's Reservation of Rights as to Additional Insured in Construction Defect Lawsuit Does Not Require Insurer to Provide "Independent Counsel" to Additional Insured

Appraisers of Building Fire Damage Not Required to Assign Loss Values to Items That Are Undamaged or Demonstrably Never Existed

Insured's Act of Pruning Neighbor's Trees Is Not an "Occurrence"

Professional Liability Insurer Has No Duty to Defend Securities Brokerage Firm Against Claims Where, At Time Firm Applied for Policy, Firm Was Aware of Facts That Might Result In Claims

Transient's "Warming" Fire That Became Uncontrolled Is Not "Vandalism" For Purposes of "Vacancy" Exclusion

General Liability Policy's "Intellectual Property" Exclusion Bars Coverage for Insured's Alleged Misappropriation of Claimant's Name

Insurer's Alleged Right to Equitable Offset Does Not Affect Amount of Damages Suffered By Insured, Only Amount of Damages That Can Be Recovered By Insured

Smith Smith & Feeley is a firm dedicated to the practice of insurance law. Our mission is to provide all clients with prompt, innovative and cost-effective solutions to insurance claims and litigation, while adhering to the highest professional standards.

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  • Revisor of the California Insurance Law Digest for A.M. Best
  • Affiliate member of Property & Liability Resource Bureau


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Smith Smith & Feeley LLP
1401 Dove Street
Suite 610
Newport Beach, California 92660

Telephone: 949.263.5920
Facsimile: 949.263.5925
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Telephone: 949.263.5920 | Facsimile: 949.263.5925

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