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Recent Rulings & News

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

Commercial Auto Policy's "Employee" Exclusion Does Not Relieve Insurer Of Duty To Defend Insured When There Is Factual Dispute As To Whether Claimant Was "Employee" Or "Independent Contractor" Of Insured

Insurance Broker Owes No Duty To Client To Investigate Financial Condition Of Insurer Before Placing Client's Insurance With Insurer

Reasonable Expectations of Named Insured May Differ From Those of Additional Insured

General Liability Policy With Products-Completed Operations Coverage and Professional Services Exclusion Does Not Relieve Insurer of Duty to Defend Insured Engineer Against Suit Alleging Negligent Construction of Dam

Food Truck Is "Mobile Equipment" and Thus Is Not Subject to "Auto" Exclusion in General Liability Policy

Subrogation Action Fails Where Insurer Failed to Give Timely Notice to Residential Home Builder Under "Right to Repair" Statute

Statutes Do Not Require, and Automobile Policies Do Not Provide, Underinsured Motorist Coverage for Named Insured's Non-Resident Daughter Killed While Pedestrian

Broker Has No Duty to Procure Insurance Beyond What Insured Requests

2013 Annual Review of California Insurance Law (PDF)

Auto Exclusion in Homeowners Policy Bars Coverage Where Insured's Negligent Supervision Exposes Victim to Risk of Negligent Operation of Auto

Trial Court Has Discretion to Defer Appraisal Until Resolution of Declaratory Relief Action Regarding Method of Calculating Depreciation

Insurer's Duty to Defend Is Not Subject to Policy's Self-Insured Retention Provision Unless Expressly Provided For by Policy

Unless Third Party Claimant Makes Settlement Demand Against Insured or Otherwise Expresses Interest in Settling With Insured, Insurer Has No Affirmative Duty to Offer Policy Limits and Insurer Cannot Be Liable for Bad Faith Failure to Settle

"Assault or Battery" Exclusion Bars Coverage for Insured's Alleged Negligent Failure to Prevent Assailant from Throwing Flammable Liquid on Claimant and Setting Claimant on Fire

Water Tank Separated From Dwelling by Clear Space But Connected by Underground Pipe Was Not "Attached" to Dwelling and, Therefore, Was Subject to "Other Structures" Limit

Once Insurer Withdraws Reservation of Rights That Initially Created Right to Independent Counsel, Insurer No Longer Has Obligation to Pay Independent Counsel

Insured Entitled to Attempt to Prove Loss of Rents Claim, Even Though Building Was Not Actually Rented at Time of Loss

Uninsured Motorist Insurer Cannot Deny Coverage Based on Exclusion Allowed By Statute But Not Actually Included in Policy

First-Party Claimant May Pursue Cause of Action for Violation of Unfair Competition Law, Even Though Unfair Insurance Practices Act Does Not Allow a "Private" Cause of Action for Same Conduct

Plaintiff Who Settles Lawsuit Against Tortfeasor and Receives Payment From Tortfeasor's Insurer Under Liability Provision of Policy Is Not Barred From Later Suing Tortfeasor's Insurer for Alleged Breach of Duties Owed to Plaintiff Under Medical Payment Provision of Policy

Liability Insurer's Reservation of Rights Regarding "Contractor's Special Condition" Triggers Conflict of Interest Requiring Independent Counsel

Liability Policies Covering "Occurrences" and "Wrongful Acts" During Policy Period Do Not Cover Insured's Alleged Tortious Conduct Before Policy Period

Insurer Not Liable for Fire Loss Where Insured Fails to Maintain Automatic Sprinkler System, and Insurer Entitled to Reimbursement of Advance Payment Made During Investigation

Where Insurer Breaches Duty to Defend Insured and Dispute Later Arises Regarding Fees Charged by Independent Counsel, Insurer May Only Seek Reimbursement From Insured, Not Independent Counsel

Plumbing Leakage That Continued For One To Two Months Was Not "Sudden" And, Therefore, Was Excluded

Where Policy Expressly Provides for Defense Against Criminal Charges, Insurance Code Section 533.5(b) Does Not Relieve Insurer of Duty to Defend Insured Against Federal Criminal Indictment

In Continuous Injury Case, Excess Policy Is Not Triggered Until All Applicable Primary Policies Are Exhausted, But Multiple Primary Policies Issued By Same Insurer Cannot Be "Stacked"

No Coverage Where Building Was "Vacant" For More Than 60 Days Before Loss, Even Though Policy Was Issued Less Than 60 Days Before Loss

In Auto Coverage Dispute, After Exhaustion of "Primary" Policy, All Policies Covering Negligent Driver Must Exhaust Before Any Policies Covering Vicariously Liable Employer Will Apply

Although Insured's Insolvency Renders It Unable to Pay Self-Insured Retention, That Does Not Relieve Insurer of Duty to Pay Covered Portion of Judgment

"Ordinance or Law" Exclusion Bars Coverage Where City Orders Demolition of Building

Where Liability Policy Only Covers Additional Insured for Vicarious Liability of Named Insured, Claim By Additional Insured Against Named Insured Does Not Fall Within Exclusion for "Inter-Insured Claims"

Exclusion for Water That "Backs Up or Overflows" From Sewer or Drain Applies Even Where Blockage Prevents Water From Ever Entering Sewer or Drain

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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  • 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
16330 Bake Parkway
Irvine, California 92618

Telephone: 949.263.5920
Facsimile: 949.263.5925
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Telephone: 949.263.5920 | Facsimile: 949.263.5925

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