General – Page 9 – Duane Morris Insurance Law

January 9, 2013September 8, 2014 by Paul J. Killion

The California Supreme Court Will Take Another Look At Henkel

On December 12, 2012, the California Supreme Court granted review in Fluor Corporation v. Superior Court (2012) 208 Cal.App.4th 1506, previously commented upon in this blog. The issue on review, as stated on the Supreme Court’s website, is: “Are the limitations on assignment of third party liability insurance policy benefits recognized in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934 inconsistent with the provisions of Insurance Code section 520?”

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October 24, 2012September 9, 2014 by Brian A. Kelly

A Missing Policy Must Be Proven By More Than “Unscientific Speculation Offered by a Genuine Scientist”

In a recent decision of a federal district court, frequent policyholder expert Robert Hughes’ opinions regarding the terms and conditions of a missing policy were flatly rejected as “bald speculation,” resulting in summary judgment for an insurer. (See, attached Canal Ins. Co. v. Montello, Inc., 2012 U.S. Dist. LEXIS 148119.)

In an instructive case that has potentially broad application to a common issue in complex insurance coverage litigation–proof of the terms and conditions of a missing policy–the Court rejected as speculation Mr. Hughes’s opinions, notwithstanding his long C.V. reflecting 50 years of experience in the insurance industry. Continue reading “A Missing Policy Must Be Proven By More Than “Unscientific Speculation Offered by a Genuine Scientist””

September 18, 2012September 9, 2014 by Duane Morris

London Market Insurers Prevail Against BP in Insurance Buyback Dispute

The California Court of Appeal has affirmed a judgment that certain Underwriters at Lloyd’s, London and certain London market insurance companies (London Market Insurers) were entitled to consider all subsidiaries as part of an insurance buyback agreement they had with one of the world’s largest oil companies. On September 13, 2012, a three-judge panel of the First District Court of Appeal issued an opinion in Certain Underwriters at Lloyd’s, London v. BP America, Inc., et al., Case No. A132298. At issue was more than $1 billion in liability insurance placed by the Atlantic Richfield Company (ARCO) in the London insurance market.

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September 6, 2012September 8, 2014 by Paul J. Killion

The California Court of Appeal Says Nice Try To Attempt to Overturn The California Supreme Court’s Henkel Decision Based on an 1872 Statute

On August 30, 2012, Division Three of the California Court of Appeal for the Fourth District put to rest a new argument devised by policyholders to attack the California Supreme Court’s seminal consent-to-assignment ruling in Henkel Corp. v. Hartford Acc. & Indem. Co., 29 Cal.4th 934 (2003). See Fluor Corp. v. Superior Court (Slip Opn. dated Aug. 30, 2012) (Fourth Dist. No. G045579)

The Fluor case involved the same consent-to-assignment clause at issue in Henkel: “Assignment of interest under this policy shall not bind the Company until its consent is endorsed hereon.” (See Henkel, supra, 29 Cal.4th at 943.) Continue reading “The California Court of Appeal Says Nice Try To Attempt to Overturn The California Supreme Court’s Henkel Decision Based on an 1872 Statute”

August 21, 2012September 8, 2014 by Paul J. Killion

Was The Wallace & Gale Holding Rejected In The API Case?

Some policyholders cite the Minnesota trial court decision in St. Paul Fire and Marine vs. A.P.I. Inc. (Minn. Dist. Court, Ramsey County, No. C9-02-8084, J. Finley Order dated May 13, 2004) as rejecting the Fourth Circuit’s holding in In re Wallace & Gale Co., 385 F.3d 820 (4th Cir. 2004). The argument is incorrect for several reasons.

First, Judge Finley’s May 2004 decision in API did not even address the core holding in Wallace & Gale but rather simply ruled on the burden of proof issue, concluding that it was insurers’ burden to prove that the claims fell within the completed operations hazard. Continue reading “Was The Wallace & Gale Holding Rejected In The API Case?”

August 9, 2012September 8, 2014 by Duane Morris

State of California v. Continental Insurance

The California Supreme Court issued its decision in the State of California v. Continental Insurance case on August 9. In a unanimous opinion, written by Justice Ming Chin, the Court held that the policy language at issue provides for “all sums” allocation and permits stacking of policy limits.

The Court’s opinion reflects a focus on the particular insurance policy wording at issue. In its first holding, the opinion states: “Under the CGL policies here, the plain ‘all sums’ language of the agreement compels the insurers to pay ‘all sums which the insured shall become obligated to pay. . . for damages . . . because of injury to or destruction of property ….” The Court went on to hold that the policy language before it “does not limit the policies’ promise to pay ‘all sums’ of the policyholder’s liability solely to sums or damage ‘during the policy period.’”

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June 14, 2012September 5, 2014 by Brian A. Kelly

Any Friendly Wagers on Outcome of State of California v. Continental Ins.?

As you may be aware, the California Supreme Court heard argument in the State of California case on May 30th. (See Bill Baron’s May 4, 2012 posting to this site.) I’ve entered into a wager with my partner and insurance guru, Phil Matthews, on the outcome of State of California, which should decide two very important insurance coverage questions in California: (1) all sums; and (2) stacking of policy limits. I won’t reveal our respective wagers, and recognizing that predicting the outcome of an appellate court is not exactly a science, I invite you to email me with your prediction as to the outcome of this case. Continue reading “Any Friendly Wagers on Outcome of State of California v. Continental Ins.?”

June 14, 2012September 5, 2014 by Paul J. Killion

California Asbestos Defendants Are On A Roll In The Appellate Courts

It’s been a very good few weeks in the California appellate courts for asbestos defendants and perhaps the beginning of a broader trend towards leveling the playing field in the unrelenting asbestos litigation that continues to overwhelm California courts.

On May 21, 2012, the Second District, Division Seven, issued a decision in Campbell v. Ford Motor Company (No. B221322) holding that a premises owner and employer owes no duty to protect family members of employees from secondary exposure to asbestos used during the course of the employer’s business – a new bright line rule that should significantly limit take-home exposure liability in California.

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June 1, 2012September 8, 2014 by Cyndie M. Chang

California Federal Court Finds No Conflict with Allegedly Competing Other Insurance Clauses

A California federal court recently issued a summary judgment ruling after interpreting two “other insurance” clauses in California State Automobile Inter-Insurance Bureau v. Progressive Casualty Insurance Company, 2012 U.S. Dist. LEXIS 57996 (N.D. Cal, April 25, 2012). One insurer argued that the “other insurance” clauses conflicted with each other, but the Court disagreed and found no conflict where one other insurance clause specifically provided for excess coverage in certain circumstances.

The policyholder had a homeowner’s insurance policy with California State Automobile Inter-Insurance Bureau (“AAA”) and a watercraft policy with Progressive Casualty Insurance Company (“Progressive”). Both issued liability limits of $500,000.

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May 30, 2012September 5, 2014 by Paul J. Killion

Do Asbestos Rip-Out Claims And The “Abandoned Materials” Policy Exception Neutralize The Impact of the Completed Operations Aggregate?

In an effort to avoid the impact of the completed operations aggregate limit, policyholder counsel sometimes attempt to characterize claims as (1) rip-out exposures, or (2) as relating to “abandoned or unused materials,” so as to come within a common insurance policy carve-out from the Completed Operations Hazard. Both arguments are a stretch.

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