Thomas Guastello v. AIG Specialty Insurance Company, — Cal.Rptr.3d –, 2021 WL 650878 (Cal. Ct. App., Feb. 19, 2021), Fourth Appellate District Court of Appeal, Case No. G057714.

Various stakeholders in the Pointe Monarch housing development in Dana Point, California, accused subcontractor C.W. Poss Inc. (“Poss”) of negligently designing and constructing retaining walls.  One such party, Thomas Guastello, sued Poss for damage to a perimeter wall in the backyard of Guastello’s property.  According to Guastello, in January 2010, a retaining wall close to his property designed and constructed by Poss failed and caused soil to collapse and damage a perimeter wall on Guastello’s property.
Continue Reading Continuous and Progressive Damage Raised Factual Question as to the Timing of “Occurrence”

Miller Marital Deduction Trust v. Zurich American Insurance Company, — P.3d –, 2019 WL 5304862; First Appellate District Court of Appeal, Division Three, Case No. A155398 (October 21, 2019).

In Miller Marital Deduction Trust v. Zurich American Insurance Company, the California Court of Appeal held that allegations that an insurance company improperly failed to provide independent, “Cumis” counsel did not arise from protected speech and thus were not subject to California’s anti-SLAPP statute.

Seeking to avoid liability for environmental contamination on a property they owned, the Millers sued several prior owners of the property, including the Miller Estate. Zurich retained panel counsel to defend the Miller Estate against this lawsuit.
Continue Reading Anti-Slapp Statute Does Not Apply To Allegations That Insurer Improperly Refused To Provide Cumis Counsel

Pitzer College v. Indian Harbor Insurance Company, — P.3d –, 2019 WL 4065521 (2019); California Supreme Court, Case No. S239510 (Aug. 29, 2019).

On certified questions by the Ninth Circuit Court of Appeals, the California Supreme Court in Pitzer College v. Indian Harbor Insurance Company examined notice and consent provisions under both first-party and third-party coverage – despite the parties’ dispute as to the type of policy coverage at issue.
Continue Reading California Supreme Court Applies Notice-Prejudice Rule to Violation of First-Party Consent Provision as a Predicate to Policy Forfeiture, but Confirms that No Prejudice is Required to Enforce a Third-Party “No Voluntary Payments” Provision

McMillin Homes Constr., Inc. v. National Fire & Marine Ins. Co., 35 Cal.App.5th 1042 (2019); Fourth Appellate District Court of Appeal, Division One, Case No. D074219 (June 5, 2019).
Continue Reading Court Finds That “Care, Custody Or Control” Exclusion Did Not Negate Coverage For General Contractor Who Shared Jobsite Supervision

Melissa Komorsky v. Farmers Insurance Exchange, et al. — Cal.Rptr.3d –, 2019 WL 1451275 (Cal. Ct. App., March 1, 2019), Second Appellate District Court of Appeal, Case No. B286443.

An uninsured motorist struck and killed Linda Liker, which led to competing claims for uninsured motorist (“UM”) benefits between Ms. Liker’s surviving husband, Alan, and her daughter from a prior marriage, Melissa Komorsky. Melissa did not reside in the Likers’ home.
Continue Reading Insurer’s Mistake in Treating Non-Resident Relative as an Insured Under UM Coverage Of Umbrella Policy Did Not Create Coverage by Estoppel

Following nearly a decade of uncertainty as to their enforceability, the California Court of Appeal upheld key components of the California Fair Claims Settlement Practices Regulations on September 20, 2018 and affirmed that the California Insurance Commissioner has the authority to penalize insurers for engaging in improper claim settlement practices based upon even a single act of misconduct.
Continue Reading California Fair Claims Settlement Practices Regulations Upheld Following a Near-Decade Long Legal Challenge to their Enforceability

In Albert v. Truck Insurance Exchange, No. B278295 (Cal. Ct. App. May 15, 2018), the California Court of Appeal, Second District, considered whether an insurer owed a duty to defend an insured who was sued for erecting a fence that partially blocked an easement providing access to a neighbor’s property. The Court of Appeal concluded that the insurer owed a duty to defend because the policy provided coverage for personal injuries arising out of a wrongful “invasion of the right of private occupancy.” According to the Court, such coverage may include a non-physical invasion of rights in real property.
Continue Reading Good Fences Don’t Always Make Good Neighbors: California Court of Appeal Holds that “Invasion of the Right of Private Occupancy” May Include Non-Physical Invasion of Rights in Real Property

Centex Homes, et al. v. St. Paul Fire and Marine Insurance Company, — Cal.Rptr.3d –, 2018 WL 494749 (Jan. 22, 2018), Third Appellate District Court of Appeal, Case No. C081266.

Homeowners from two residential developments sued Centex for alleged construction defects. As an additional insured under policies issued to subcontractor Ad Land Venture, Centex tendered the underlying construction defect lawsuit to St. Paul Fire and Marine Insurance Company.

St. Paul appointed a lawyer to defend Centex, but subject to a reservation of rights that its general liability policies issued to Ad Land did not cover damage to Ad Land’s work or damage caused by the work of other subcontractors that it did not insure. St. Paul also reserved its right to seek reimbursement of costs incurred in defending uncovered claims.
Continue Reading Developer Had No Right to Independent Counsel Based on a Possible Conflict of Interest for Carrier-Appointed Counsel

Admiral Insurance Company v. Superior Court of San Diego County, 18 Cal.App.5th 383 (2017); Fourth Appellate District Court of Appeal, Division One, Case No. D072267 (December 12, 2017).

In Admiral Insurance Company v. Superior Court of San Diego County, the California Court of Appeal held that a professional liability policy did not provide coverage for a lawsuit where, prior to the inception of the policy, the insured knew, or could have reasonably foreseen, that a claim would be made.
Continue Reading Professional Liability Policy Did Not Provide Coverage for Lawsuit that the Insured Knew or Should Have Known About