California Supreme Court Rules Policyholder Can Assert Claim Against Insurer Under Unfair Competeition Law PDF Print
Written by Gretchen Ramos   
Friday, 09 August 2013 08:27


In Zhang v. California Capital Ins. Co., No. S178542 (Cal. Aug. 1, 2013), the California Supreme Court held that a policyholder can bring claims under the state’s Unfair Competition Law (UCL), Business and Professions Code § 17200, et seq., as long as the legal predicate is based on something other than the state’s Unfair Insurance Practices Act (UIPA), Insurance Code §790, et seq.  The conduct alleged may violate the UIPA, but the UCL claim must allege some other legal predicate, such as bad faith and false advertising. 


Plaintiff Zhang sued California Capital in a dispute over first party coverage for fire damage to her commercial property under a CGL policy.  The complaint alleged causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and section 17200.  In her UCL claim, Zhang alleged California Capital engaged in unfair, deceptive, untrue, and/or misleading advertising by promising to provide timely coverage in the event of a compensable loss, when it had no intention of paying the true value of its insured’s covered claims.  Relying on Moradi-Shalal v. Fireman's Fund Ins. Cos., 46 Cal. 3d, 287, 304 (1988), California Capital demurred to the UCL claim, arguing policyholders could not duplicate claims for violation of the UIPA and UCL.  The trial court granted the demurrer, while the court of appeal reversed, finding the false advertising claim provided sufficient basis for a UCL claim.

            The California Supreme Court distinguished its prior holding in Moradi-Shalal, finding it addressed actions brought by underlying claimants and not policyholder suits.[1]  The Court noted that although policyholders may now sue under the UCL, the UIPA may not be borrowed to serve as the legal predicate; policyholders must allege some other violation or legal basis.  Here, plaintiff’s claims for false advertising and insurance bad faith provided sufficient grounds for a UCL claim independent from the UIPA. 

Responding to the arguments that Zhang’s cause of action will require examination of widespread claims-handling practices, the Court implied that a class action would be required to justify such widespread discovery.  The Court dismissed this discovery concern because a UCL claim may be based on a single instance, and added: “Were Zhang to attempt to recover on behalf of other insureds, she would be required to certify a class action.”

The Court did not address whether the “unfair” prong of a UCL claim must be tethered to a specific constitutional, statutory, or regulatory provision, an issue on which California appellate courts remain split. 

[1] While the language of the Court’s holding applies to “first party” claims, it appears the Court is referring to all policyholder suits (including third party claims), and excludes only suits by underlying claimants who are not parties to the insurance contract. 

 Zhang.pdf[ ]227 Kb
Zurich Settles Arbitration Dispute With California Department of Insurance PDF Print
Breaking News
Written by CBM   
Friday, 12 July 2013 08:39

Business Insurance is reporting today that Zurich American Insurance Co. will stop requiring California workers compensation policyholders to arbitrate disputes in Illinois as part of a settlement reached with the California Department of Insurance.  According to BI, the agreement announced Thursday addresses allegations that Zurich failed to file workers comp large-deductible agreement forms with the Department of Insurance as required by California code. The Department of Insurance said it advised all insurers in 2011 that the filings are required.

“Zurich's practices required California employers to resolve disputes in Zurich's backyard, under unfavorable law and circumstances and at added expense to employers,” Insurance Commissioner Dave Jones said in a statement. “This settlement gives California employers the opportunity to level the playing field by arbitrating disputes in California, under California law.”

Ninth Circuit Refuses to Extend Montrose in Case WHere Occurrence Took place Prior to the Policy Periods PDF Print
Written by Gretchen Ramos   
Monday, 01 July 2013 11:03


In City of Buenaventura v. Insurance Company of the State of Pennsylvania, No. 10-56727 (9th Circ., June 26, 2013), the Ninth Circuit Court of Appeals affirmed the district court’s order, granting summary judgment to the insurers, rejecting the policyholder’s attempts to extend the continuous loss theory applied in Montrose Chemical Corp. v. Admiral Insurance Co., 913 P.2d 878 (Cal. 1995) where the “occurrence” (the City’s negligence) took place prior to the periods covered by the defendant insurers’ policies.  

Facts & Holding

The City of Buenaventura (“City”) contracted with a developer to build condos for low-income buyers.  Since the sale and resale prices of the condos were limited to ceilings, sales could not close until the city issued certificates of compliance with its affordable housing program.

 In 2004, condo buyers sued the City for declaratory relief alleging they purchased their condos in 2001 and obtained certificates of compliance without having been told that their condos were subject to low-income ceilings.  The condo buyers alleged they had paid more than the ceilings and were damaged because the City failed to adequately review their sale documentation, issued erroneous certificates, and negligently failed to disclose the low-income price ceilings.  As a result, the condo buyers claimed damages for their alleged overpayments as well as for interest and property taxes they paid based on the unlawful prices.

In 2007, the City tendered the suit to its insurers Great Lakes Reinsurance (“Great Lakes”), providing CGL coverage for 2002-2003, and The Insurance Company of the State of Pennsylvania (“ICSOP”), providing coverage for 2003-2004.  The insurers denied coverage and the City sued the insurers seeking a declaration the condo buyers’ claims were covered.  The district court granted the insurers’ summary judgment, finding any “occurrence” or “wrongful act” took place prior to the policy periods.  The city appealed, and Ninth Circuit affirmed.

In affirming, the Ninth Circuit noted that it was undisputed the City’s alleged negligence occurred in 2001, prior to the policy periods.  The court rejected the City’s contention that under Montrose Chem. Corp. the alleged “occurrence” continued into the policy periods, finding the City’s argument that the condo buyers “continued to suffer” due to having overpaid and having their resale prices capped lacked merit.  

Furthermore, the court distinguished this case from Montrose based upon the Great Lake and ICSOP policy language.  Under Montrose, the policy language requires the injury or damage “occur” during the policy period and “which results” from the accident or “continuous and repeated exposure to conditions.”  In contrast, the Great Lakes and ICSOP policies require the event causing the damage (the “occurrence”) to happen during the Policy Period.”

 Buenaventura.pdf[ ]79 Kb
California Appeals Court Holds Recover from Tortfeasor & Tortfeasor's Insurer Not Double Recover PDF Print
Written by Gretchen Ramos   
Tuesday, 25 June 2013 08:05


In Barnes v. Western Heritage Insurance Company, No. C066002 (Cal. Ct. App., June 18, 2013) (Third Appellate District), the California Court of Appeal held an injured party’s recovery from a tortfeasor for negligence and from the tortfeasor’s insurer for breach of contract would not constitute impermissible double recovery and would also not violate the collateral source rule.

Facts & Holding

Plaintiff filed a claim against Shingletown Activities Council after he was injured during an activity sponsored by the council.  Western Heritage Insurance Company, the council’s insurer, paid $1,478 to plaintiff’s medical care providers.  Plaintiff then filed a personal injury action against the council and others, alleging negligence and premises liability, which was settled.  Western Heritage was not a party to the settlement.

Over a year after the accident, plaintiff sought additional medical payments from Western Heritage.  Western Heritage refused claiming the policy required the damages be reported within a year of any covered incident.  Plaintiff was not previously informed of this limitation, and sued Western Heritage for breach of contract.  The trial court granted summary judgment in favor of Western Heritage, finding plaintiff was collateral estopped because the personal injury settlement resolved the issue of the payments due plaintiff for medical expenses under the policy. 

The court of appeal reversed, holding plaintiff’s recovery in his personal injury action did not bar recovery against Western Heritage.  The court reasoned the insurer’s obligation to indemnify its insured under the liability provision of an insurance policy is separate and distinct from its obligation to pay for medical expenses under a medical payment provision of the same policy.  Given plaintiff sued Western Heritage for its alleged breach of obligations owed to plaintiff under the medical payment provision of the council’s policy.  Plaintiff now claims Western Heritage wrongfully denied him additional coverage.  The settlement that plaintiff obtained in the personal injury action was compensation for the alleged negligence by the defendants in that case, which included the council but did not include Western Heritage. 

The court of appeal also determined plaintiff’s recovery from Western Heritage was not barred by the collateral source rule – which provides that if an injured party receives compensation for his injuries from a source wholly independent of the tortfeasor, that payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.  Plaintiff first brought a personal injury action against the council, and then brought a separate lawsuit against the Western Heritage regarding the insurer’s alleged wrong doing.  Thus, the collateral source rule did not bar plaintiff’s lawsuit against Western Heritage.

 Barnes v. Western Heritage.pdf[ ]62 Kb
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