Archive for December, 2009

WCAB Finding That Employer’s Conduct Did Not Warrant Misconduct Penalties Upheld

In Sanchez v. Workers’ Compensation Appeals Board (WCAB), Kinley Construction Co., et al, No. F058246 (December 31), the Fifth Appellate District was called upon to review a WCAB determination that Sanchez’s employer was merely negligent, thus avoiding serious and willful misconduct penalties under Labor Code Section 4553.  Sanchez suffered extensive injuries due to a fellow [...]

December 31, 2009   Posted in: Blog  Comments Closed

Modern Products and Completed Operations Exclusion Which Excludes “Your Work” Applies To Inspection Services Regardless of Relationship To Product

In the case of Baker, et al v. National Interstate Insurance Company, et al, No. B204860 (December 30; ordered published January 11), Division Eight of the Second Appellate District was called upon to review the current language generally used in “products” and “completed operations” exclusions commonly found in CGL insurance policies.  In Insurance Company of [...]

December 30, 2009   Posted in: Blog  Comments Closed

Golden Eagle Claims Administrator Properly Denied Property Damage Claim Arising From Roof Tiles

In the unpublished case of Poizner v. Golden Eagle Insurance Company, Fred Carter, et al  (Claimants), No. A123081 (December 30), Division One of the First Appellate District ruled that the insolvent Golden Eagle’s claims administrator properly denied a property damage claim from Fred and Hanna Carter stemming from property damage occurring after their installation of [...]

December 30, 2009   Posted in: Blog  Comments Closed

Second Appellate District Upholds Award of Intervenor Fees For Participation Short Of A Formal Rate Hearing

In Association of  California Insurance Companies (ACIC) v. Poizner, Foundation for Taxpayer and Consumer Rights (FTCR) (Intervenor), No. B208402 (December 30), Division One of the Second Appellate District, upholding the trial court’s action on a petition for writ of mandate, ruled that 2006 amendments to the California insurance ratemaking regulations permitting consumer interest intervenors to [...]

December 30, 2009   Posted in: Blog  Comments Closed

Admission Of Collateral Source Payments Held Not To Require Reversal

In the unpublished case of  Gray v. MIF of San Francisco, Inc., el at, No. B206619 (December 29), Division Eight of the Second Appellate District affirmed a trial court judgment in favor of defendants following an automobile accident after which Victoria Gray sued Claudia Mejia, Oscar Perez, and Perez’s employer, MIF of San Francisco. There [...]

December 29, 2009   Posted in: Blog  Comments Closed

Failure To Comply With Cooperation Clause Supports Judgment For Insurer

In the unpublished case of Kaur v. Fire Insurance Exchange, No. F055359 (December 29), the Fifth Appellate District upheld a trial court judgment in favor of an insurer where the jury found the insured had failed to comply with a policy’s cooperation clause requiring the insured to “as often as we reasonably require…provide us with [...]

December 29, 2009   Posted in: Blog  Comments Closed

Settling Defendant Bound By Good Faith Settlement Agreement Even When Jury Subsequently Attributes No Liability At All To That Defendant

The unpublished case of Codner v. Wills, In-N-Out Burgers, No. B198675 (December 22), involved a motorcycle collision with a car near the exit of an In-N-Out Burgers drive-in.  The facts with respect to the two drivers’ responsibility were sharply in dispute, with In-N-Out involved for allegedly not complying with its conditional use permit and allowing [...]

December 22, 2009   Posted in: Blog  Comments Closed

Summary Judgment For Insurer Upheld Where No Showing Of Reasonable Reliance On Alleged Misrepresentations

In the unpublished case of Hopkins v. The Mega Life and Health Insurance Company, et al, No. B212957 (December 22), Division Five of the Second Appellate District was called upon to review a summary judgment granted a health insurer and others.  Hopkins contended there were triable issues of fact with respect to the sale of [...]

December 22, 2009   Posted in: Blog  Comments Closed

Second Appellate District Clarifies Rules For Disqualification of Party Appraisers

In Mahnke v. Superior Court (California Fair Plan Association (CFPA)), No. B216110 (December 21), Division Seven of the Second Appellate District clarified the rules for disqualification of party-selected appraisers.  Insurance Code Section 2071 appraisals are governed by the California Arbitration Act, Code of Civil Procedure Section 1280 et seq.  In the trial court, CFPA sought [...]

December 21, 2009   Posted in: Blog  Comments Closed

Dump Truck Supplier Held Liable For Negligent Training Despite Finding of No Liability For Negligent Entrustment

The unpublished case of Harp v. Armitage, Leading Edge Trucking, Inc, and St. Paul Fire & Marine Insurance Company (Intervenor), No. G040817 (December 18), arose out of an accident in which a dump truck was driven head-on into a pickup truck.  The driver of the dump truck was employed by Leading Edge, which supplied dump [...]

December 18, 2009   Posted in: Blog  Comments Closed

Department of Managed Health Care’s Regulatory Authority Does Not Bar UCL and False Advertising Claims Against Blue Cross

Blue Cross of California, Inc., et al v. Superior Court (The People), No. B215035 (December 15), arose out of a writ proceeding stemming from a lawsuit filed by the Los Angeles City Attorney against a health insurer, a managed health care service plan, and their parent corporation concerning coverage rescission practices.  Defendants demurred to the [...]

December 15, 2009   Posted in: Blog  Comments Closed

Statute of Limitations Does Not Bar Action By State Farm Against Grey-Market Converter

In the unpublished case of State Farm Mutual Automobile Insurance Company v. G & K Automotive Conversion, Inc., No. G041130 (December 14), State Farm sought relief against G & K following the explosion of State Farm’s insured’s leased grey-market Ferrari, converted by the defendant, while it was being driven off a highway.  State Farm paid [...]

December 14, 2009   Posted in: Blog  Comments Closed

Trial Court Had No Duty to Give Jury Instruction Not Requested By Plaintiff

In the unpublished case of Batache v. Ayala, et al, No. B210783 (December 14), Division Eight of the Second Appellate District upheld the principle that the litigants are responsible for proposing jury instructions to be submitted to a jury.  The case was a personal injury action arising out of an automobile accident.  After losing in [...]

December 14, 2009   Posted in: Blog  Comments Closed

Third Appellate District Cites to Peculiar Risk Doctrine to Impose Defense Duty

In the partially published case of American States Insurance Company v. Progressive Casualty Insurance Company, et al, No. C058641 (December 14), the Third Appellate District reversed trial court judgments in favor of Progressive and Wilshire Insurance Company to the extent that they concluded that those insurers had no duty to defend American States’ insureds, a [...]

December 14, 2009   Posted in: Blog  Comments Closed

Commissioner Announces Workers’ Compensation Rates Will Remain Stable

Commissioner Poizner has announced that workers’ compensation insurance rates will be relatively stable and increase by an average of only 4 percent in 2010.  The Commissioner said this evidences that insurers “have found a way to use tools already available to them to reduce costs and minimize rate changes.”  The Commissioner’s announcement was based on [...]

December 10, 2009   Posted in: Blog  Comments Closed

Right To Independent Counsel Requires Factual Showing Of Conflict of Interest

OneBeacon American Insurance Company v. Superior Court (ITT Corporation and Grinnell, LLC), No. B218321 (December 8), is an unpublished decision from Division Five of the Second Appellate District on a writ petition following a summary adjudication requiring OneBeacon to provide separate counsel to the plaintiffs in asbestos suits.  The appellate court reversed the summary adjudication [...]

December 8, 2009   Posted in: Blog  Comments Closed

ERISA Plan’s Suspension of Early Retirement Benefits Held Improper Under Either De Novo Or Abuse of Discretion Standards

In Brown v. Southern California IBEW-NECA Trust Funds, No. 08-55398 (December 7), the Ninth Circuit upheld a District Court decision that the Board of Trustees of the Southern California IBEW-NECA Pension Plan violated ERISA when it suspended James Brown’s early retirement benefits.  The Board determined that Brown’s job of installing heating, ventilation, and air conditioning [...]

December 7, 2009   Posted in: Blog  Comments Closed

Bad Faith Claim Should Not Have Been Summarily Adjudicated Where Supreme Court Held Insurer’s Coverage Interpretation Was Unreasonable

In the unpublished case of TRB Investments, Inc., et al v. Fireman’s Fund Insurance Company, No. F055111 (December 7), the Fifth Appellate District considered a summary adjudication of a bad faith claim by the trial court after remand from the California Supreme Court.  Following remand, the trial court summarily adjudicated against the plaintiff policyholders their [...]

December 7, 2009   Posted in: Blog  Comments Closed

Under “Type I” Indemnity Agreement Which Benefits Developer’s Insurer, Developer’s Insurer Is Free of Liability, But Only If It Is Able To Establish Subcontractor’s Negligence Contributed To The Loss

American Safety Indemnity Company v. Admiral Insurance Company, No. D053564 (December 4), is an unpublished decision from Division One of the Fourth Appellate District dealing with these facts: A real estate developer and a grading contractor entered into an agreement under which the subcontractor agreed to grade a hillside for construction.  Pursuant to the contract, [...]

December 4, 2009   Posted in: Blog  Comments Closed

Commissioner Announces Insurance Industry Has Reported $12 Billion in Investments Linked To Iran

With 1,111 of 1,327 reporting, Commissioner Poizner has announced that California insurers have reported to him $12 billion in investments “tied” to the Iranian energy, nuclear, banking and defense industries.  However, the Commissioner conceded that his data call provided no evidence of any direct investment in Iran.  The Commissioner issued a data call six months [...]

December 3, 2009   Posted in: Blog  Comments Closed

Intentional Act By Resident Relative Precludes Coverage For Fire Loss

In the unpublished case of Century National Insurance Company v. Garcia, No. B209616 (December 2), Division Seven of the Second Appellate District, affirming a trial court ruling on a demurrer, upheld the enforceability of intentional loss exclusionary language in Century National’s policy which specifically included resident relatives in the category of “insured.”  There was no [...]

December 2, 2009   Posted in: Blog  Comments Closed

California Department of Transportation Challenge To Insurance Code Section 11580.1 (c) (5) Rejected

Insurance Code Section 11580.1 (b) mandates automobile liability coverage for permissive users “to the same extent insurance is afforded to the named insured.”  Section 11580.1 (c) (5), on the other hand, authorizes such insurance to exclude “[l]iability for bodily injury to an insured or liability for bodily injury to an insured whenever the ultimate benefits [...]

December 1, 2009   Posted in: Blog  Comments Closed

State Law Claims Against Medicare Advantage Provider Held Preempted

In Yarick v. PacifiCare of California, No. F057032 (December 1), the Fifth Appellate District upheld a trial court’s sustaining of a demurrer to wrongful death and other state law claims being pursued by the decedent’s estate on the basis that such claims were preempted entirely by federal law.  Plaintiff’s Fourth Amended Complaint asserted causes of [...]

December 1, 2009   Posted in: Blog  Comments Closed