Insurance

Liability insurers often receive policy limit demands from third-party claimants that allege serious injuries without corroborating medical records or bills. Since the enactment of California Civil Procedure Code section 999 et seq. in 2023, these demands are typically made by “unrepresented” claimants who are actually receiving guidance from attorneys behind the scenes.
Continue Reading The Ninth Circuit Confirms That Liability Insurers Are Entitled to Corroborating Medical Documentation Before Settling a Third-Party Bodily Injury Claim

Plaintiff’s counsel often employ a range of strategic tactics to defeat diversity jurisdiction because they view federal court as an unfavorable forum. One such tactic is to challenge the amount in controversy—a key requirement for diversity jurisdiction. However, the Ninth Circuit’s recent decision in Farmers Direct Property & Casualty Ins. Co. v. Perez, — F.4th —, 2025 WL 716337 (9th Cir. March 6, 2025), makes it difficult to challenge the amount in controversy in declaratory judgment actions filed in federal court involving an insurer’s duty to defend and/or indemnify. In Perez, the Ninth Circuit held that in determining the amount
Continue Reading Ninth Circuit Clarifies Amount in Controversy Requirement in Declaratory Judgment Actions Between Insurers and Their Insureds

50 Exchange Terrace LLC suffered losses from frozen burst pipes that caused water damage to its property and tendered a claim to its insurer, Mount Vernon Specialty Insurance Company. The parties disputed the cost of repairs (i.e., the amount of the loss) and Mount Vernon demanded appraisal to resolve the dispute. Rather than proceeding with appraisal, 50 Exchange filed suit in California state court, asserting that Mount Vernon had wrongfully withheld policy benefits pending the appraisal. Mount Vernon removed the case to federal court based on diversity jurisdiction. The federal district court then dismissed the suit for lack of ripeness and Article III standing.
Continue Reading Appraisal of Amount of Loss is a Predicate to Article III, Injury-In-Fact Standing for a Suit Alleging Wrongful Withholding of Policy Benefits

In 2015, Continental Casualty Company issued a commercial general liability policy to Zongwei Shen dba Nobles Massage Spa. The policy covered Shen (the spa owner) and Zhong Xin (the spa manager and Shen’s wife) for damages because of bodily injury that occurred during the policy period. The policy contained an abuse or molestation exclusion that excluded coverage for bodily injury “arising out of” (a) the “actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured,” or (b) the negligent employment, supervision, or retention “of a person for whom any insured is
Continue Reading The California Court of Appeal Interprets the Meaning of “Care, Custody, or Control” in the Context of an Abuse or Molestation Exclusion

In December 2020, Plaintiff Erin Hughes applied for homeowners coverage for her Malibu home with her Farmers’ insurance agent. Hughes obtained a fire policy through the California FAIR Plan and a homeowners policy through Farmers that insured the property against perils not covered by the FAIR Plan policy.
Continue Reading An Insurer is not Vicariously Liable for Actions by an Agent That Are Outside the Scope of the Agency Relationship and Were Performed in the Agent’s Dual Role as a Broker

In its latest Covid-era coverage case, John’s Grill, Inc. v. Hartford Financial Services, Group, Inc., the California Supreme Court held that an insured cannot use the “illusory coverage doctrine to transform the policy’s limited virus-related coverage into unlimited virus-related coverage.” In so holding, the Court reiterated the long-standing rule that “explicit and unambiguous policy limitations” will be enforced as written. 
Continue Reading John’s Grill, Inc. v. Hartford Financial Services, Group, Inc.: Illusory Coverage, Unambiguous Policy Language, and the Enforceability of Limited Coverage Endorsements

In Truck Ins. Exch. v. Kaiser Cement, 321 Cal. Rptr. 3d 761, 549 P.3d 781 (2024), the California Supreme Court answered the question left open by Montrose Chem. Corp. v. Superior Ct., 9 Cal. 5th 215 (2020) (Montrose III): for a continuous injury or damage spanning multiple policy periods, must an insured exhaust all implicated primary policies spanning the entire period of injury or damage prior to accessing any excess policy during that period. 
Continue Reading The California Supreme Court Confirms Vertical Exhaustion Applies for First-Layer Excess Insurers

Aristotle said “well begun is half done.” About 2,300 years later, Mary Poppins shared the same advice with her young charges, Jane and Michael. The adage generally is understood to mean that a thoughtful and disciplined start puts a project in a good position for success. With apologies to Aristotle (and Mary), the members of Sheppard Mullin’s Organizational Integrity Group use the same adage as a warning. In our experience, well begun is only half the battle. This month’s OIG Shorts discusses the importance of the activities that take place toward the end of — or after — an internal
Continue Reading Organizational Integrity Shorts: The Importance of Post-Investigation Activities

The research is clear. A good decision with a bad outcome is likely to be viewed – by others and by the decision-makers themselves – as a bad decision in hindsight. Equally so, a bad decision with a good outcome is likely to be viewed as a good decision in hindsight. Both views, however, are wrong – and, if allowed to persevere unchecked, can lead to all manner of flawed decisions going forward.

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Continue Reading Organizational Integrity Shorts: Good Plans that go Awry or why we Conflate Bad Outcomes with Bad Decisions

Let’s say you’re a publicly traded manufacturer of a popular medical device, which you sell commercially as well as to a number of VA hospitals. You receive an anonymous internal hotline complaint alleging that certain unauthorized, reverse-engineered components were used in the manufacturing process and that certain quality tests were skipped in the interest of “efficiency.” You triage the complaint, do your preliminary diligence, determine the complaint isn’t frivolous, and launch a privileged internal investigation.
Continue Reading Organizational Integrity Shorts: Don’t Just Let the Dominoes Fall; Understand the Paths They Might Take

In a suspicious insurance claim, it is common for insurers to request that an insured answer questions about the claim at an examination under oath (“EUO”). But a new opinion from the California Court of appeal changes what an insured can record at an EUO. In Myasnyankin v. Nationwide Mut. Ins. Co., — Cal. Rptr. 3d –, 2024 WL 340287 (Jan. 30, 2024), the court held that an insured can now demand to videotape not only the person taking the EUO but also anyone else present during the proceeding. In so ruling, the court relied on California Insurance Code section 2071.01(a)(4)
Continue Reading New Decision Gives an Insured the Right to Videotape Examinations Under Oath

The Motor Carrier of Property Permit Act (the “MCPPA”) sets forth insurance requirements for commercial motor carriers in California. There is a dearth of legal authority interpreting the MCPPA, which was adopted in 1996. Although there is case law interpreting analogous provisions under the California Public Utilities Code, the predecessor to the MCPPA, it is unclear whether those cases are still good law. Recently, however, California courts have clarified the interpretation and application of the MCPPA in two respects. 
Continue Reading California Courts Clarify the Interpretation of the MCPPA

Too often people argue as though they are in front of a judge, or some other cosmic arbiter of correctness, rather than asking ourselves what might move our opponent. In this edition of OIG Shorts, the Sheppard Mullin Richter & Hampton LLP Organizational Integrity Group explains that to increase our chances of moving our opponent, we need to recalibrate our goals, rethink our strategy, and reframe the discussion.
Continue Reading Organizational Integrity Shorts: The Science of Persuasion

Investigations are stressful for an organization’s leadership. But what is often overlooked is that they are stressful for an organization’s employees as well. The need-to-know nature of internal investigations usually restricts knowledge of the investigation’s character, scope, and potential consequences to a relatively small circle of senior management. But the employees who fall within the scope of the investigation will often know little about what’s going on, which can generate anxiety, impair morale, and create tensions in the workplace, further leading to negative repercussions for the organization that persist long after the investigation has been closed.
Continue Reading The Close-Out Debrief

For years, plaintiff’s attorney Montie S. Day has sued California auto insurers, arguing that the policy exclusion precluding coverage for first-party diminution of value damages claims is unenforceable. On November 30, 2023, the Ninth Circuit Court of Appeals in Uyanik v. Wawanesa (an unpublished decision) affirmed the Northern District of California Court’s dismissal of Ali Uyanik’s (Day’s client) first amended complaint and sanctioned Mr. Day $5,000 for pursuing a frivolous appeal. The Court held that Uyanik’s breach of contract claim was “grounded in the plainly incorrect assertion that California law requires insurance providers to coverer all losses, including diminution of vehicle value
Continue Reading Attorney Challenging First-Party Diminution of Value Claims Sanctioned by Ninth Circuit

In the wake of the Covid-19 pandemic lockdown orders, policyholders were driving less and insurance company severities and loss ratios were reduced. This resulted in a temporary increase in insurance company profits. Beginning in April 2020, the California Department of Insurance (“DOI”) issued a series of Bulletins, ordering insurers to provide premium refunds to policyholders. Initially, many insurers complied, providing partial refunds during the early months of the pandemic.
Continue Reading The Tide Shifts in California Covid Premium Refund Cases