In Truck Ins. Exch. v. Kaiser Cement, 321 Cal. Rptr. 3d 761, 549 P.3d 781 (2024), the California Supreme Court answered the question left open by Montrose Chem. Corp. v. Superior Ct., 9 Cal. 5th 215 (2020) (Montrose III): for a continuous injury or damage spanning multiple policy periods, must an insured exhaust all implicated primary policies spanning the entire period of injury or damage prior to accessing any excess policy during that period. Continue Reading The California Supreme Court Confirms Vertical Exhaustion Applies for First-Layer Excess Insurers

In a suspicious insurance claim, it is common for insurers to request that an insured answer questions about the claim at an examination under oath (“EUO”). But a new opinion from the California Court of appeal changes what an insured can record at an EUO. In Myasnyankin v. Nationwide Mut. Ins. Co., — Cal. Rptr. 3d –, 2024 WL 340287 (Jan. 30, 2024), the court held that an insured can now demand to videotape not only the person taking the EUO but also anyone else present during the proceeding. In so ruling, the court relied on California Insurance Code section 2071.01(a)(4) which states that an insured “may record the [EUO] examination proceedings in their entirety.” The court interpreted this language to mean that an insured is permitted to record “every element and part of the examination proceeding,” including the insurer’s representatives at an EUO. An insured also does not need to hire a professional videographer. The insured can record the proceeding on a smartphone which “can be placed on a tripod or otherwise propped up and left to record the insurer’s representatives, without the need for a person standing by.” Continue Reading New Decision Gives an Insured the Right to Videotape Examinations Under Oath

The Motor Carrier of Property Permit Act (the “MCPPA”) sets forth insurance requirements for commercial motor carriers in California. There is a dearth of legal authority interpreting the MCPPA, which was adopted in 1996. Although there is case law interpreting analogous provisions under the California Public Utilities Code, the predecessor to the MCPPA, it is unclear whether those cases are still good law. Recently, however, California courts have clarified the interpretation and application of the MCPPA in two respects. Continue Reading California Courts Clarify the Interpretation of the MCPPA

For years, plaintiff’s attorney Montie S. Day has sued California auto insurers, arguing that the policy exclusion precluding coverage for first-party diminution of value damages claims is unenforceable. On November 30, 2023, the Ninth Circuit Court of Appeals in Uyanik v. Wawanesa (an unpublished decision) affirmed the Northern District of California Court’s dismissal of Ali Uyanik’s (Day’s client) first amended complaint and sanctioned Mr. Day $5,000 for pursuing a frivolous appeal. The Court held that Uyanik’s breach of contract claim was “grounded in the plainly incorrect assertion that California law requires insurance providers to coverer all losses, including diminution of vehicle value and loss of vehicle use, because policy exclusions are ‘void and unenforceable under California law as against public policy and contradict[] the statutes passed by the California Legislature.’” The Court of Appeal also held that Uyanik’s fraud claim failed because bald allegations that Wawanesa sold insurance policies but didn’t intend to indemnify insureds for all loss did not meet Rule 9(b)’s heightened pleading standards and Uyanik’s CLRA claim failed because “the CLRA does not apply to insurance.” Continue Reading Attorney Challenging First-Party Diminution of Value Claims Sanctioned by Ninth Circuit

In the wake of the Covid-19 pandemic lockdown orders, policyholders were driving less and insurance company severities and loss ratios were reduced. This resulted in a temporary increase in insurance company profits. Beginning in April 2020, the California Department of Insurance (“DOI”) issued a series of Bulletins, ordering insurers to provide premium refunds to policyholders. Initially, many insurers complied, providing partial refunds during the early months of the pandemic.Continue Reading The Tide Shifts in California Covid Premium Refund Cases

Over the past 10 years, policy limit settlement demands with myriad conditions have become the norm. In many instances, the conditions are imposed in the hope that the insurer will falter in its efforts to comply. Unless there was strict compliance with every condition, the claimants argued, the demand was rejected and the policy was “open.” Recently, however, California courts have begun to recognize common-sense limitations to these “gotcha” tactics. In 2021, Pinto v. Farmers Ins. Exch., 61 Cal. App. 5th 676 (2021) clarified that to be liable for a bad faith failure to settle, the insurer must have acted unreasonably. In Palma v. Mercury Ins. Co., 2022 WL 3592722, issued on August 23, 2022, the Court of Appeal expressed its distaste for gamesmanship that is designed to prevent a settlement that an insurer is attempting to consummate.Continue Reading Negligence is Not Enough/Set-Up Tactics are Disfavored