Archive for July, 2009

Insurer Potentially Liable for Fraudulent Concealment After Failure To Notify Insured Represented by Counsel of Contractual Limitations Period

In Superior Dispatch, Inc. v. Insurance Corporation of New York, No. B204878 (July 30), Division Three of the Second Appellate District reversed a summary adjudication granted by the trial court based on a one-year contractual limitations period in the policy and its conclusion that Inscorp’s failure to notify Superior of the restriction did not support [...]

July 30, 2009   Posted in: Blog  Comments Closed

Flawed Evidence of Property Insurance Form Did Not Give Rise To Valid Negligence and Misrepresentation Claims Against Predecessor Insurance Agency

University Partners, LLC, et al v. Bronson, et al, No. C058893 (July 29), is an unpublished decision from the Third Appellate District upholding dismissal of claims for both negligence and negligent misrepresentation against an insurance agency and its employee after a building burned down and insurance proceeds from a policy not including the guaranteed replacement [...]

July 30, 2009   Posted in: Blog  Comments Closed

Insurer’s Declaratory Relief Action Against Third Party Plaintiff Correctly Dismissed As Improper Prior to Adjudication of Underlying Action

In the unpublished case of State Farm Mutual Automobile Insurance Company v. Powell, No. A121077 (July 29), Division One of the First Appellate District upheld a trial court’s discretion to dismiss a declaratory relief action brought by State Farm in advance of the final adjudication of an underlying automobile accident personal injury claim.  The plaintiff [...]

July 29, 2009   Posted in: Blog  Comments Closed

Ninth Circuit Affirms Absence of Ambiguity In ERISA Plan Coverage Documents Precludes Coverage For Non-Contracted Provider Services

In Dupree; Martini v. Holman Professional Counseling Centers; Beverly Hills Hotel Plan, No. 07-55617 (July 29), the Ninth Circuit affirmed a District Court judgment that plaintiff was not entitled to any coverage for Alexandra Martini’s  stay at a residential treatment facility that had no contract with her step-father’s employee benefit health plan.  Plaintiff Dupree argued [...]

July 29, 2009   Posted in: Blog  Comments Closed

Commissioner Announces “Alarming” Increase in Suspected Auto Insurance Arson and Theft Fraud

Commissioner Poizner announced today what he described as an “alarming” 25 percent increase in suspected motor vehicle arson fraud.  In 2007, he said, he received 344 referrals for suspected automobile arson; the corresponding figure for 2008 is 451.  The Commissioner also said he received 200 more referrals for suspected vehicle theft fraud in 2008 than [...]

July 28, 2009   Posted in: Blog  Comments Closed

State Farm Upheld Against Misconceived Implied Indemnity Attorneys Fees Claim After Dismissal of Subrogation Action

In the unpublished case of State Farm Mutual Automobile Insurance Company v. Martinez, No. B205248 (July 27), handed down by Division Seven of the Second Appellate District, Armando Gomez Martinez, dba Manny’s Transmissions, appealed from a trial court’s order denying his motions for sanctions and attorneys fees in a subrogation action, ultimately voluntarily dismissed, brought [...]

July 28, 2009   Posted in: Blog  Comments Closed

Travelers’ Summary Judgment on Northridge Earthquake Claim Upheld

In an unpublished opinion in Weir v. Travelers Casualty and Surety Company, No. B198611 (June 27), Division Eight of the Second Appellate District upheld a summary judgment in Travelers’ favor on a Northridge earthquake claim.  The case is a useful analysis of how insurers can establish as a matter of law the validity of their [...]

July 28, 2009   Posted in: Blog  Comments Closed

Commissioner Releases CIGA Operations Review Report

Commissioner Poizner released yesterday his review of the operations of the California Insurance Guarantee Association (CIGA).  Within its 83 recommendations, the report suggests that CIGA develop standardized fees and payment schedules, measurable performance standards to be coordinated with its audit process, and a formalized contract review, audit, and termination procedure.  It also suggests that CIGA [...]

July 24, 2009   Posted in: Blog  Comments Closed

Surrender Outside County Within Statutory Period Sufficient to Avoid Bond Forfeiture

In The People v. Indiana Lumbermen’s Mutual Insurance Company, No. B208691 (July 21), Division Three of the Second Appellate District reviewed a postjudgment order denying Indiana Lumbermen’s motion to vacate summary judgment and forfeiture and exonerate a bond.  The defendant, Laimbeer, failed to appear and bail issued on his behalf was forfeited.  Some three months [...]

July 21, 2009   Posted in: Blog  Comments Closed

Trial Court Discretion to Reduce Punitive Award Against Insurer Affirmed

Essex Insurance Company v. Professional Building Contractors, Inc., No. B206879 (July 21), is an unpublished and very measured decision from Division Two of the Second Appellate District affirming a trial court’s decision to grant a new trial on punitive damages unless the court’s 1 to 1 remittitur was accepted after a jury awarded $2.5 million [...]

July 21, 2009   Posted in: Blog  Comments Closed

U.S. Life Mental Disability Exclusion Does Not Apply When Insured Suffered Mental and Physical Symptoms

Bosetti v. The United States Life Insurance Company in the City of New York, et al, No. B206896 c/w B208835 (July 17) involved the interpretation of a mental disability exclusion in a disability policy.  Linda Bosetti’s job with the Palos Verdes Unified School District was eliminated.  Shortly after learning that her employment would end, she [...]

July 17, 2009   Posted in: Blog  Comments Closed

Fifth Appellate District Grants Review of WCAB Decision On Drug Testing After Injury

In Cantrell v. Workers’ Compensation Appeals Board and Wal-Mart Stores, Inc., No. F057606 (July 17), the Court of Appeal was called upon to review a WCAB decision rejecting Jefffrey Cantrell’s Labor Code Section 132a claim against his employer, Wal-Mart, following an industrial injury.  Wal-Mart requires its employees to submit to drug testing after an industrial [...]

July 17, 2009   Posted in: Blog  Comments Closed

Third District Court of Appeal, On Remand From Supreme Court, Clarifies Consequences of Employer’s Failure To Timely Act On Treatment Request Under WC Utilization Review Process

State Compensation Insurance Fund v. Workers’ Compensation Appeals Board and Brice Sandhagen, Brice Sandhagen v. Workers’ Compensation Appeals Board and State Compensation Insurance Fund, Nos. C048668 and C049286 (July 16), is an unpublished decision from the Third District Court of Appeal on remand from the Supreme Court’s decision in State Compensation Insurance Fund v. Workers’ [...]

July 16, 2009   Posted in: Blog  Comments Closed

HO Policy’s Business Pursuits Exclusion Bars Contribution Action For Dog Bite At Insured’s Place of Business

In the unpublished case of Philadelphia Indemnity Insurance Co. v. Fire Insurance Exchange, No. B205732 (July 15), Division Seven of the Second Appellate District was called upon to review a trial court’s dismissal of a contribution action by Philadelphia against Fire Insurance Exchange.  The trial court had concluded that Philadelphia and Fire Insurance did not [...]

July 15, 2009   Posted in: Blog  Comments Closed

Blue Cross’ Willingness to Contract For Limited Infertility Treatment Coverage Fulfilled Statutory Duty to Offer Such Coverage

In Yeager v. Blue Cross of California, No. B207571 (July 15), Division Eight of the Second Appellate District affirmed a trial court’s summary judgment against Deborah Yeager on a class action claim that Blue Cross failed to comply with Health & Safety Code Section 1374.55 in offering Yeager’s employer, Westmont College, coverage for infertility treatment [...]

July 15, 2009   Posted in: Blog  Comments Closed

Ninth Circuit Certification of TIG Total Pollution Exclusion To Hawaii Supreme Court Catalogues Pollution Exclusion Holdings Around Nation

In Apana, et al v. TIG Insurance Company, et al and Apana, et al v. TIG Insurance Company, et al, Nos. 08-15369 and 08-15550 (July 15), the Ninth Circuit certified to the Hawaii Supreme Court the following question: “Does a total pollution exclusion provision in a standard commercial general liability insurance policy apply to localized [...]

July 15, 2009   Posted in: Blog  Comments Closed

Ninth Circuit Applies Informed Abuse of Discretion Review Standard to “Top Hat” ERISA Plan Administrator’s Benefits Decision

In Sznewajs v. U. S. Bancorp Amended and Restated Supplemental Benefits Plan, No. 07-164889 (July 13), the Ninth Circuit was called upon to decide the appropriate standard of review for decisions by the administrator of an ERISA pension plan.  Where no standard is stated in the plan, courts review administrators’ decisions de novo.  Where a [...]

July 13, 2009   Posted in: Blog  Comments Closed

DOI’s Rewrite of CCR Section 2632.13 Reflects Continuing Refusal To Conform Regulation To Insurance Code Section 1861.025

In our July 7 blog post, we discussed the Commissioner’s proposed rewrite of CCR Section 2632.13 without benefit of the new proposed language which has not yet been posted on the Commissioner’s website.  That language went up shortly thereafter, and we have now had an opportunity to review it.  The Department’s Notice, upon which we [...]

July 12, 2009   Posted in: Blog  Comments Closed

Commissioner Posts Procedures for Iranian Investment Data Call

The Commissioner has now posted on his website procedures for the Iranian investments data call discussed in our June 29 blog post.  Insurers’ responses to the call are due on September 30.  As discussed in his explanatory memorandum, the Commissioner is seeking data respecting investments with the Iranian government and its instrumentalities and investments in [...]

July 10, 2009   Posted in: Blog  Comments Closed

Second Appellate District Upholds Infinity 80/20 PPO Automoble Repair Program

In a decision on a case we referenced in both our March 21 and June 4 blog posts, Division Four of the Second Appellate District today upheld Infinity Insurance Company’s 80/20 PPO-style automobile repair program against an Insurance Code Section 758.5/UCL challenge.  See Maystruk v. Infinity Insurance Company, No. B209404 (July 9).  We believe the [...]

July 9, 2009   Posted in: Blog  Comments Closed

Commissioner Rejects Application To Increase WC Claims Cost Benchmark

Commissioner Poizner announced today that he has rejected an application from the Workers’ Compensation Insurance Rating Bureau (WCIRB) to raise the claims cost benchmark by 23.7 percent.  The Commissioner cited testimony at his recent hearing that self-insured employers have been able to reduce overall workers’ compensation costs, and reiterated his conclusion that the workers’ compensation [...]

July 8, 2009   Posted in: Blog  Comments Closed

J. C. Penney Entitled To Pursue Credit For Overpayment After Temporary Disability Ended

J. C. Penney Company, et al v. Workers’ Compensation Appeals Board and James Edwards, No. C59760 (July 7), is a Third Appellate District decision annulling and remanding a WCAB decision limiting a credit claimed by J. C. Penney, American Home Assurance Company, and its adjuster, AIG Claims Services, for overpayment of temporary disability benefits to [...]

July 7, 2009   Posted in: Blog  Comments Closed

Commissioner To Amend Good Driver Discount Eligibility/Principally At-Fault Regulation

Two years ago, the Department held a workshop to discuss possible improvements to CCR Section 2632.13, which defines procedures for determining a driver’s qualifications for a Good Driver Discount policy and for making “principally at-fault” decisions.  On August 26, the Commissioner will hold a public hearing in Sacramento to consider proposed amendments.  The Notice of [...]

July 7, 2009   Posted in: Blog  Comments Closed

L.A. Times Publishes Campaign Ad For Harvey Rosenfield Using Guise of Reporting

Today’s “hit” piece in the Los Angeles Times by Michael Hiltzik eviscerating my former boss George Joseph’s Continuous Coverage Auto Insurance Discount Act is the latest example of the near impossibility of conducting a reasoned discussion of Proposition 103 and insurance ratemaking in California.  The report barely touches on the content of the initiative itself, [...]

July 2, 2009   Posted in: Blog  Comments Closed

AB 470 (Niello) Passes Senate and On Way To Governor

AB 470 (Niello), which we discussed in our June 8 blog post, has now passed the Senate and moved to enrollment.  Because the Governor says he will not act on other legislation until the state has a budget, it will probably stay in enrollment status until a budget is both passed and signed into law.  [...]

July 2, 2009   Posted in: Blog  Comments Closed