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Recent Rulings & News

When Auto Insurer Elects To Repair Vehicle to Pre-Accident Condition, Insurer Is Not Also Required to Pay for Resulting "Diminution in Value" to Vehicle

Mere Breach of Contract, Without More, is Not Sufficient to Establish "Wrongful" Retention of Policy Benefits Under Financial Elder Abuse Statute

In Calculating Ratio of Punitive Damages to Compensatory Damages, Compensatory Damages Should Include Brandt Fees, Whether Such Fees Are Awarded by Jury as Part of Verdict or by Trial Judge after Verdict

Controlling Shareholder of Insured Corporation Does Not Have "Standing" to Seek Declaratory Relief Against Corporation's Insurers

In Suit Alleging Property Damage Occurring Over Multiple Years, Successive Primary Insurers Must Contribute Toward Insured's Defense Costs, Notwithstanding "Other Insurance" Language in One Insurer's Policy

Insurer Has Duty to Defend Insured Bedding Manufacturer in Class Action Lawsuit Arising from Sale of Allegedly Defective Mattresses

Business Interruption and Extra Expense Coverage for Off Premises Damage to Property of "Direct Supplier" Did Not Apply Where Manufacturer Did Not Have Contractual Relationship with Supplier's Subcontractor

"Following Form" Excess Liability Policy Does Not Include Uninsured Motorist/Underinsured Motorist Coverage Provided In Underlying Primary Policy

Uninsured Tortfeasor Can Assign Claim Against Broker, and Rule of Superior Equities Does Not Apply to Contractual Assignment

"Non-Owned" Auto Coverage Does Not Apply Where Non-Owned Vehicle Is "Furnished or Available" for Insured's "Regular Use"

Language in All-Risk Policy Did Note Override Predominant Cause Doctrine, and Insurer Bore Burden of Proving Collapse Exclusion and Negating Exception


Liability Policy's Exclusion for "Subsidence" Resulting From Insured's "Operations" Bars Coverage for Landslide Allegedly Resulting From Insured's Maintenance and Construction Activities

Liability Insurer Has No Duty to Defend Tile Subcontractors Against Claims Arising from Fracturing of Tiles Caused By Alleged Improper Installation

Property Insurer Had No Obligation to Reimburse Mitigation Expenses in Absence of Otherwise Covered Loss

"Escape" Type "Other Insurance" Clause Does Not Excuse Insurer from Contributing Toward Defense Costs Which Another Insurer Pays on Behalf of Mutual Insured

Pursuant to Insurance Code Section 520, Once "Loss" Happens, Insured May Assign Right to Recover to Third Party

Defending Insurer Not Liable for Excess Judgment Where Settlement Demand Exceeded Applicable Policy Limits and Insured Stipulated to Judgment Without Insurer's Consent

Insurer May Seek Reimbursement of Allegedly Excessive Legal Fees Directly from Independent "Cumis" Counsel

Insurer's Reservation of Rights as to Additional Insured in Construction Defect Lawsuit Does Not Require Insurer to Provide "Independent Counsel" to Additional Insured

Appraisers of Building Fire Damage Not Required to Assign Loss Values to Items That Are Undamaged or Demonstrably Never Existed

Insured's Act of Pruning Neighbor's Trees Is Not an "Occurrence"

Professional Liability Insurer Has No Duty to Defend Securities Brokerage Firm Against Claims Where, At Time Firm Applied for Policy, Firm Was Aware of Facts That Might Result In Claims

Transient's "Warming" Fire That Became Uncontrolled Is Not "Vandalism" For Purposes of "Vacancy" Exclusion

General Liability Policy's "Intellectual Property" Exclusion Bars Coverage for Insured's Alleged Misappropriation of Claimant's Name

Insurer's Alleged Right to Equitable Offset Does Not Affect Amount of Damages Suffered By Insured, Only Amount of Damages That Can Be Recovered By Insured

Although Homeowners Insurer Has No Duty to Defend Insured Against "Personal Injury" Claims Arising From Sexual Assault Committed By Others, Personal Umbrella Insurer Does Have Such Duty

"Prior Publication" Exclusion Relieves Insurer of Duty to Defend Insured Against Trademark Infringement Suit

Where Insurer's Failure to Pay Property Claim Prevents Insured From Making Repairs, Insured is Entitled to "Conditional" Award of Replacement Cost, But Ultimately Must Still Complete Repairs in Order to Recover Replacement Cost Benefits

Statute of Limitations May Be Tolled Where Alleged Tortfeasor or Liability Insurer Makes Advance Payment to Injured Person Without Notifying Such Person of Applicable Limitations Period

Underinsured Motorist Benefits May Be Reduced Not Only By Recovery From Negligent Driver's Insurer, But Also By Recovery From Another Alleged Tortfeasor


Third-Party Claimant's Failure to Make Effective "Policy Limits Demand" Against Correct Insured Insulates Insurer From Liability for Failure to Settle

Auto Insurer Cannot Exclude Coverage for Insured's Liability to Non-Relative Resident of Household

Loss Payee Who Owns First and Second Loans and Forecloses on Second by Making "Full Credit Bid" Cannot Recover from Insurer for Property Damage

General Liability Insurer Has No Duty to Defend Massage Company's Employee Against Suit Alleging Employee's Sexual Assault of Client

Policy Which Describes Tractor Portion of Tractor/Trailer Rig Is "Primary" to Policy Which Does Not Describe Any Portion of Rig

Whether Producer Was "Broker" or "Agent" Was Question of Fact Where Insurer Sought to Rescind Due to Misrepresentations on Application

Employment-Related Practices Exclusion Relieves General Liability Insurer of Duty to Defend Insured Employer Against Suit Arising from Alleged Strip Search of Employees

Unloading Injured Passenger from Motor Vehicle Constitutes "Use" of Motor Vehicle

Insurer Has No Duty to Defend Insureds Against Suit Alleging Conspiracy to Aid In Abduction of Child

Insured Can Maintain Bad Faith Action Against Insurer Who Allegedly Forces Insured to Arbitrate Uninsured Motorist Claim Without Investigating, Evaluating and Attempting to Resolve Claim

"Personal and Advertising Injury" Coverage for "Disparagement" Is Not Triggered Where Insured's Advertisements Do Not Specifically Refer To and Clearly Derogate Claimant's Products

Liability Insurer Has No Duty to Defend Insured Steel Subcontractor Against Suit Arising From Installation of Allegedly Inadequate Seismic Tie Hooks in Building

Insured Can Sue Insurance Adjuster for Negligent Misrepresentation and Intentional Infliction of Emotional Distress

Insured "Hires" or "Borrows" Vehicle Only If Insured Exercises Exclusive "Dominion and Control" Over Vehicle

Smith Smith & Feeley is a firm dedicated to the practice of insurance law. Our mission is to provide all clients with prompt, innovative and cost-effective solutions to insurance claims and litigation, while adhering to the highest professional standards.

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We have extensive experience in all facets of commercial and personal insurance law. We have special expertise in:

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  • Listed in the Bar Register of Preeminent Lawyers in the field of Insurance Law
  • Listed in A.M. Best’s Directory of Recommended Insurance Attorneys
  • Revisor of the California Insurance Law Digest for A.M. Best
  • Affiliate member of Property & Liability Resource Bureau


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Smith Smith & Feeley LLP
1401 Dove Street
Suite 610
Newport Beach, California 92660

Telephone: 949.263.5920
Facsimile: 949.263.5925
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1401 Dove Street . Suite 610 . Newport Beach, California 92660
Telephone: 949.263.5920 | Facsimile: 949.263.5925

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