NEWS & EVENTS

A. Tort Liability May be Imposed on an Insurer
B. Carrier’s Good Faith Duties Owed to the Insured
C. Insurer’s Breach Through Unreasonable Conduct

III. THIRD PARTY BAD FAITH PRINCIPLES

A. Introduction
B. The Insuring Agreement
C. The Duty to Defend
D. The Duty to Settle or Indemnify

IV. INSURANCE COMMISSIONER’S REGULATIONS

A. Implementing the California Unfair Claims Settlement Practices Act
B. Key Regulations

CHAPTER 2 DAMAGES

I. CONTRACT DAMAGES

A. Definition of Contract Benefits in an Insurance Bad Faith Case

II. BAD FAITH DAMAGES

A. Bad Faith Damages are Tort Remedies
B. Emotional Distress Damages
C. Attorney’s Fees and Costs

III. PUNITIVE DAMAGES

A. Punitive damages are available in insurance bad faith actions under Civil Code section 3294
B. State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003)
C. California Cases Following Campbell
D. Issues to Keep in Mind in Light of Campbell

CHAPTER 3 PROPERTY INSURANCE

I. TYPES OF COVERAGE

A. “All-Risk” Policies v. “Named Peril” Policies

II. INITIAL HURDLES FOR THE INSURED

A. Introduction
B. Who is the Insured?
C. Causation in First Party Claims
D. What is Damaged Property?
E. Measure of Recoverable Damage

III. INSURERS’ DEFENSES TO COVERAGE: CONTRACT DEFENSES

A. Introduction
B. Intentional Acts
C. Criminal Acts
D. Ordinance or Law Provisions
E. Causation
F. The One-Year Statute of Limitations of Section 2071
G. Insured’s Breach of Conditions Precedent to Coverage
H. Insured’s Failure to Cooperate
I. Misrepresentation or Concealment

IV. INSURERS’ DEFENSES TO BAD FAITH

A. No Benefits Owed to the Insured
B. There is a Genuine Dispute Regarding the Facts or Law
C. The Advice of Counsel Defense
D. Insured’s Misrepresentation or Concealment
E. The Appraisal Process

V. USING EXPERTS TO DETERMINE PROPERTY DAMAGE

A. Introduction
B. Hiring Experts
C. What Experts Do You Need?
D. Experts and Establishing the Cost of Repair

CHAPTER 4 LIABILITY INSURANCE

I. THE SCOPE OF COVERAGE

A. The Basic Insuring Agreement for “Bodily Injury” and “Property Damage”
B. Insuring Agreement for “Personal Injury” and “Advertising Injury”
C. Liability Insurer’s Duties Towards the Insured
D. The Types of Damage Covered
E. Scope of Coverage May Extend to Actions for Breach of Contract

II. DUTY TO DEFEND

A. The Basics
B. “Mixed” Actions and the Allocation of Defense Costs
C. Reserving the Right to Obtain Reimbursement
D. Insurer’s Counsel, Cumis Counsel, California Civil Code Section 2860, and Conflicts of Interest
E. Wrongful Refusal to Defend
F. Administrative Proceedings vs. Civil Lawsuits
G. Frivolous Claims
H. Intentional Acts
I. Vicarious Liability Coverage For Intentional Acts of Others
J. Defense of Other Intentional Acts
K. “Illegal Acts” v. “Criminal Acts”
L. Consequences of Insurer’s Failure to Provide a Defense

III. DUTY TO INDEMNIFY

A. The Basics
B. Settlements
C. Intentional Acts: Indemnity
D. Administrative Proceedings vs. Civil Lawsuits

IV. THE COMPREHENSIVE GENERAL LIABILITY POLICY AND ENVIRONMENTAL COVERAGE

A. The accident-based CGL policy
B. The 1966 occurrence-based CGL policy
C. The current CGL policy

CHAPTER 5 MOTORIST COVERAGE

I. OVERVIEW

A. Uninsured and Underinsured Motorist Coverages Defined
B. Uninsured and Underinsured Motorist Coverages Are Statutorily Required

II. RESOLVING COVERAGE DISPUTE

A. The Arbitration Clause
B. Carrier’s Rights to Offset and Subrogation
C. Insurance Carrier’s Right to a Medical Payment Setoff
D. Misrepresentation and Rescission
E. Recovery of Non-Economic Damages by Uninsured Motorists

III. BAD FAITH ISSUES COMMON TO UM/UIM COVERAGE DISPUTES

A. Introduction
B. Carriers’ Specific Duties to Insureds
C. Bad Faith Abuse of the Arbitration Process

CHAPTER 6 HEALTH INSURANCE

I. INTRODUCTION

A. Health Maintenance Organizations (HMOs)
B. Continued Consolidation in the Health Care Industry

II. ERISA HAS PREVIOUSLY PROTECTED HMOs

A. ERISA Explained
B. Exceptions to ERISA Preemption
C. The Insurance Savings Clause

III. STATUTORY LIABILITY

A. The Insured’s Right to Sue (Cal. Civ. Code § 3428)
B. Procedural Hurdles
C. Will The New Legislation Be Preempted by ERISA?
D. The Supreme Court Test

IV. ARBITRATION AND HEALTH CARE PLANS

A. California Health and Safety Code section 1363.1

V. BAD FAITH ISSUES

A. ERISA Preemption and Bad Faith
B. The Bases for a Bad Faith Cause of Action
C. Health Insurance as First Party Insurance

CHAPTER 7 LIFE INSURANCE

I. INTRODUCTION

A. Definitions
B. Evaluating a Potential Life Insurance Case

II. RESCISSION, MISREPRESENTATION, AND CONCEALMENT

A. Rescission
B. Misrepresentations
C. Concealment
D. Materiality
E. Burden of Proof

III. ISSUES OF MISREPRESENTATION AND RESCISSION SPECIFIC TO LIFE INSURANCE

A. Common Areas in Which Misrepresentation and Rescission Issues Arise

IV. WAIVER AND ESTOPPEL OF THE RIGHT TO RESCIND

A. Introduction
B. Examples of Waiver and Estoppel of the Right to Rescind

V. INCONTESTABILITY CLAUSES

A. In General
B. Fraud
C. Key Points

VI. WHEN IS THE INSURER’S DUTY TO PAY TRIGGERED?

A. Interim Coverage
B. Approval of Application
C. Pre-Approval
D. The Duty to Pay Benefits Promptly

VII. ERISA CONCERNS

A. Significance
B. Background
C. Suits for Benefits
D. The Continual Evolution of ERISA Preemption Issues

VIII. LIFE INSURANCE FRAUD CASES

A. Introduction
B. Fraudulent Schemes Employed

CHAPTER 8 DISABILITY

I. WHAT IS DISABILITY INSURANCE?

A. Scope
B. Purpose

II. ERISA PREEMPTION

A. In General
B. Significance
C. The Insurance Savings Clause & McCarran-Ferguson Act
D. Three-Factor Balancing Test

III. MISREPRESENTATION AND RESCISSION

A. In General
B. Incontestability Clauses
C. Materiality

IV. WAIVER AND ESTOPPEL OF THE RIGHT TO RESCIND

A. Basis
B. Application

V. LEGAL STANDARD FOR “TOTAL DISABILITY”

A. Introduction
B. The Two Standards for “Total Disability”
C. Bad Faith in Determining Disability Status
D. Judicial Review of Disability Determinations

VI. COVERAGE ISSUES

A. Timing
B. Illness v. Injury
C. Proximate Cause

VII. BAD FAITH ISSUES UNIQUE TO DISABILITY INSURANCE

A. Withholding Payments
B. Stopping Payments Once Insured Has Become Dependent

VIII. PROOF OF LOSS AND THE NOTICE-PREJUDICE RULE

A. Proof of Loss
B. The Notice-Prejudice Rule

IX. GENUINE DISPUTE RULE MAY NOT BE AN EFFECTIVE DEFENSE TO BAD FAITH

A. Introduction
B. Application of the Genuine Dispute Rule to Disability Cases

X. MENTAL AND NERVOUS DISABILITIES

A. The Old Law
B. The Current Law: Assembly Bill

CHAPTER 9 MARINE AND SPECIALTY INSURANCE

I. HISTORICAL PERSPECTIVE AND GENERAL BACKGROUND

A. Introduction
B. Lloyd’s Coffee House: The Birthplace of the Insurance Business
C. Evolution of “Marine Insurance”

II. OCEAN MARINE POLICIES

A. In General
B. Disclosure
C. Federal Admiralty Jurisdiction

III. INLAND MARINE POLICIES

A. In General
B. Coverage Under Film and Theatrical Property Inland Marine Policies
C. Disclosure
D. Business Interruption Coverage

CHAPTER 10 INSURANCE FOR CONSTRUCTION DEFECT CASES

I. INTRODUCTION

A. Insurance coverage is critical
B. Property Damage to the Building Structure and the Underlying Real Property
C. Costs of Investigation
D. Costs to Repair Defects
E. Personal Injuries
F. Economic Damages
G. Joint and Several Liability

II. INSURANCE ISSUES FOR CONSTRUCTION DEFECT CASES

A. General Considerations
B. Coverage Available in a Construction Defect Case Under A Typical CGL Policy
C. “Trigger” of Insurance Coverage-The Occurrence-Based CGL Policy in the Construction Defect Setting
D. Additional Insured Coverage
E. Typical Exclusions That May Arise in a Construction Defect Case
F. Using Insurance Information in a Construction Defect Case

CHAPTER 11 ACTIONS AFFECTING GROUP PLAINTIFFS

I. INTRODUCTION

A. Forms of Group Litigation
B. Effect on Passive Litigants

II. ACTIONS WITH MULTIPLE INDIVIDUAL PLAINTIFFS

A. Joinder of Plaintiffs
B. Advantages of Joinder
C. Disadvantages of Joinder

III. REPRESENTATIVE ACTIONS UNDER THE CALIFORNIA UNFAIR COMPETITION ACT

A. Elements of a Section 17200 Action
B. Remedies for a Section 17200 Action
C. Section 17200’s Broad Standing Provisions Before Proposition 64
D. Proposition 64 Restricts UCL Actions.
E. Defendants Argue That Proposition 64 Applies Immediately to All Pending Cases.
F. Section 17200’s Four-Year Statute of Limitations
G. Section 17200 Representative Actions Against Insurers

IV. REPRESENTATIVE ACTIONS UNDER THE CONSUMER LEGAL REMEDIES ACT (CLRA)

A. Introduction
B. Elements of a CLRA Action
C. Remedies for a CLRA Action
D. CLRA Class Actions (see discussion, supra, Section V(I))

V. CLASS ACTIONS

A. Introduction
B. Prerequisites of California Class Actions
C. Certification
D. Class Notice
E. Post Certification
F. Class Settlements
G. Section 17200 Class Actions
H. Examples of Class Actions Against Insurers
I. CLRA Class Actions
J. Employment/Wage and Hour Class Actions (general categories include classification, “off the clock,” and failure to pay cases, etc.)
K. Classwide Arbitration