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January 29, 2020 General

Insurance Coverage Considerations Stemming from the New California Child Victims Act

On October 13, 2019, when California’s governor signed AB 218—the California Child Victims Act (CCVA)—California became one of at least nine other states to enact some form of window legislation for childhood victims of sexual assault. The CCVA became effective on Jan. 1, 2020. This article explores the CCVA’s pertinent changes to existing law for pursuing childhood sexual assault claims, as well as some of the key insurance coverage issues arising from this new law.

The text of the CCVA is substantively similar to other …

July 3, 2019 CCPA

Part 1: The California Consumer Privacy Act — What Insurers Need to Know

Assembly Bill No. 375, better known as the California Consumer Privacy Act (CCPA), is likely the most robust and sweeping privacy law in the United States. This is not surprising as California is notoriously at the forefront of passing privacy legislation, even though close to 20 other states are also taking steps to pass similar legislation.

The CCPA, which becomes effective January 1, 2020, creates a number of consumer rights regarding the collection, storage, selling, and processing of personal information, as well as corresponding business …

March 22, 2016 Duty to Defend / Personal and Advertising Injury

Say What You Mean and Mean What You Say, Says California Federal District Court

A California federal district court determined a standard Breach of Contract Exclusion under Coverage B of a CGL policy did not preclude the duty to defend for alleged disparagement. In MedeAnalytics, Inc. v. Federal Insurance Co., the United States District Court for the Northern District of California interpreted the exclusion very narrowly, finding it applied only to actual — and not alleged — breaches of contract and found a duty to defend.

As background, the claimant alleged the policyholder made disparaging comments in order …

December 29, 2015 Duty to Defend / Personal and Advertising Injury

Another Nail in the Junk Fax Coffin: Wisconsin Joins Illinois, California, Michigan, and Oklahoma in Finding No Coverage for TCPA Suits

The Wisconsin Court of Appeals held in a recent decision that a standard TCPA exclusion precludes coverage for all causes of action brought by the plaintiff that emanated from the unauthorized sending of faxes. This includes a common law conversion cause of action, as well as a cause of action for violations of the Telephone Consumer Protection Act (TCPA).

As background, in State Farm Fire & Casualty Co. v. Easy PC Solutions, LLC, No. 2014AP2657, 2015 Wisc. App. LEXIS 855 (Wisc. Ct. App. Dec. …

March 27, 2015 Uncategorized

The Insurer Is In Control: California District Court Upholds Insurer’s Right To Control Settlement and Conduct Its Due Diligence with Respect To a Coverage Investigation

In Travelers Property Casualty Co. of America v. Kaufman & Broad Monterey Bay, Inc., 2015 WL 581528 (N.D. Cal. Feb. 11, 2015), Travelers had issued commercial general liability insurance policies to Norcraft. The defendants were named as additional insureds on the policies. The defendants were sued for claims arising out of a residential development project. The defendants tendered their defense of the claims to Travelers, which accepted the tender and appointed counsel for the defendants. Travelers and the defendants asserted claims against each other …

March 4, 2015 Uncategorized

How Is a Dress Trade Dress? California Federal District Court Deems Clothing Design Infringement Suit as Alleging Trade Dress Infringement

In West Trend, Inc. v. AMCO Insurance Co., No. CV 14-06872-RGK (PLAx), 2015 U.S. Dist. LEXIS 6807 (C.D. Cal. Jan. 9, 2015), the Central District of California granted summary judgment in favor of West Trend, Inc. (“West Trend”) against AMCO Insurance Company (“AMCO”), finding that AMCO had a duty to defend West Trend against a lawsuit filed by Spirit Clothing Company (“Spirit”).

The underlying lawsuit involved a long sleeve shirt marketed and sold by West Trend that contained stitching allegedly similar to Spirit’s own recognizable …

February 20, 2015 Life, Health, Disability & ERISA / Regulatory

Midland Life Insurance Company Pays $1.3 Million to California Department of Insurance for Improper Annuity Sales

The recent $1.3 million dollar settlement between Midland National Life Insurance Company (“Midland”) and the California Insurance Department – based upon Midland’s inappropriate sales practices in marketing annuities to seniors – is a strong indication that life insurance companies may need to re-examine the various regulations that were issued over the last several years related to annuity suitability. The Midland settlement came after a market conduct examination revealed that the company’s agents had engaged in improper sales and replacement transactions, particularly with senior citizens. In …

February 17, 2015 Emerging Issues / Regulatory

California Issues Emergency Regulation on Access to Healthcare Providers

During his second inauguration, California Insurance Commissioner Dave Jones, announced a new emergency regulation relating to access to healthcare providers. According to an accompanying press release,

The emergency regulation . . . addresses the problems identified with access to doctors, hospitals, and other medical providers in 2014, as many health insurers reduced their medical provider networks and/or shifted to offering Exclusive Provider Organization (EPO) health insurance products with no out-of-network benefits. Consumers complained of having trouble getting appointments with doctors, traveling long distances to …

November 12, 2014 Emerging Issues

Californians – “Insurance on My Mind”

California voters had insurance on their minds during the mid-term elections with at least two insurance-related questions on the ballot.

The first was Proposition 45, entitled the “Healthcare Insurance. Rate Changes. Initiative Statute.” If approved, this initiative would have required the state’s Insurance Commissioner to approve any rate increases for individual and small group health insurance plans before those rate hikes took effect. If the state’s Insurance Commissioner determined that a rate hike was unreasonable or excessive, the commissioner could veto the hike. The proposition’s …

October 11, 2013 Policy Conditions, Considerations, Construction, and Formation

California Court of Appeals says Insurers Do Not Have a Duty to Initiate Settlement

The issue involved in this case was the duty of an insurer to settle a third party claim within the policy limits when liability was clear and there was a substantial likelihood of a recovery in excess of the policy limits. Specifically, the question decided was whether an insurer must initiate settlement negotiations or offer its policy limits where the third party claimant has not made a demand or settlement offer. The trial court found that the insurer was not liable to the insured for …