Recent Published and Unpublished Opinions

Cryoport Systems v. CNA Insurance Companies (2007) 149 Cal.App.4th 627:  In this matter, the trial court sustained our clients’ demurrer without leave to amend by finding that the plaintiff lacked standing to forward this action.  California’s Unfair Competition Law (“UCL”), Business & Professions Code § 17200 et seq., was amended by a ballot initiative, Proposition 64, which required a plaintiff seeking recovery for unlawful or deceptive business practices to demonstrate an injury-in-fact.  Prior to the passage of Proposition 64, any individual or entity could bring suit under the UCL regardless of the fact that it was not harmed by the conduct alleged.  At the time of the hearing on our clients’ demurrer, there existed a split of authority regarding whether the standing requirements established by Proposition 64 were retroactive in their application.  The Court of Appeal revolved the split of authorities in holding that the standing requirements established by Proposition 64 were retroactive in their application.  The trial court’s decision in favor of our clients was affirmed on appeal.

RLI Insurance Company v. CNA Casualty of California (2006) 141 Cal.App.4th 75:  Our client, CNA Casualty of California, was the primary insurer in a traffic fatality claim.  During the pendency of the litigation against our client’s insured, a $1,000,000.00 policy limits demand was made, but our client did not accept the offer.  Approximately one year later, the litigation was settled for $2,000,000.00 with our client and the excess insurer, RLI Insurance Company, each paying $1,000,000.00.  Thereafter, the excess insurer brought an equitable subrogation action against our client, and the trial court granted judgment on the pleadings in favor of CNA Casualty.  The Court of Appeal affirmed the judgment in holding that an excess insurer cannot maintain a subrogation action against a primary insurer based upon the primary insurer’s alleged unreasonable refusal to settle the underlying claim.

Brizuela v. Calfarm Insurance Company (2004) 116 Cal.App.4th 578:  During the investigation of a suspect arson claim, our client demanded the insured’s examination under oath on numerous occasions, yet the insured failed to submit to examination.  His claim was denied based upon his failure to comply with this policy term, and he filed suit for breach of contract and breach of the implied covenant of good faith and fair dealing.  Summary judgment was granted in favor of our client based upon the insured’s failure to comply with the policy’s examination under oath requirement, and the insured appealed.  The Court of Appeal affirmed judgment in favor of Calfarm Insurance Company and adopted as California law the “New York Rule” that an insured’s submission to examination under oath is a prerequisite to any entitlement to policy benefits.  The Court further held, as a matter of law, that an insurer need not demonstrate prejudice occasioned by the insured’s failure to submit to examination when denying a claim based upon his failure to comply with this policy term.

Retana v. TIG Insurance Company (2004) WL 260792: Indiana Retana presented a Northridge Earthquake claim to her insurer, TIG Insurance Company, in 1994.  The claim was adjusted, but not to her satisfaction.  Therefore, she filed suit against the insurer.  Her initial litigation, which was not handled by our firm, was dismissed based upon her claim being time-barred under the policy’s one year suit provision.  Shortly after judgment had been granted in favor of TIG Insurance Company, the California legislature enacted Code of Civil Procedure §340.9 which eliminated any time-bar defenses to Northridge Earthquake claims subject to the qualification that the statute did not apply to “[a]ny claim that had been litigated to finality in any court of competent jurisdiction prior to the effective date” of Code of Civil Procedure §340.9.  Ms. Retana, therefore, requested that her claim be re-opened.  TIG Insurance Company declined to do so based upon her claim having already been “litigated to finality.”  Retana, once more, filed suit against TIG Insurance Company for breach of contract and breach of the implied covenant of good faith and fair dealing.  Summary judgment was granted in favor of our client based upon her claim not being revived by Code of Civil Procedure §340.9 as it having been litigated to finality as envisioned by this newly-enacted statutory scheme.  The Court of Appeal affirmed the ruling of the trial court in favor of our client.

Quinn v. Calfarm Insurance Company 2004 WL 2785609:  Plaintiff initially brought suit against Calfarm Insurance Company’s insured, Gary Martin, for personal injury she sustained in an incident on Catalina Island involving a golf cart.  The litigation was tendered by Gary Martin for defense and indemnity under his homeowners’ policy, which was denied by Calfarm.  Calfarm maintained that there was no duty to defend as the claim presented was not potentially covered based upon the policy’s “auto” exclusion.  Thereafter, Mr. Martin entered into a stipulated judgment and assignment of policy rights with plaintiff in exchange for a covenant not to execute against his assets.  Thereafter, Quinn filed suit against Calfarm as Mr. Martin’s assignee.  Cannon & Nelms filed a motion for summary judgment based upon there being no potential coverage for the claim under Gary Martin’s policy of insurance with Calfarm.  The trial court agreed and entered judgment in favor of Calfarm, and its decision was affirmed on appeal.

Ward General Ins. Svcs., Inc. v. Employers Fire Insurance Company (2003) 114 Cal.App.4th 548 (rehearing denied Jan. 7, 2004):  Plaintiff presented a claim for lost electronic data caused by a negligent computer user, and Cannon & Nelms was retained to provide coverage analysis to the defendants.  After the conclusion of our investigation into the claim presented, the insured’s claim was denied.  Ward filed suit for breach of contract and breach of the implied covenant of good faith and fair dealing.  The trial court granted summary judgment in favor of our clients on the basis that the relevant policy of insurance did not provide coverage for the lost data in the absence of direct physical loss or damage to the computer system itself.  The trial court’s decision was affirmed on appeal.