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Insurance Blog

The Insurance Group posts articles, essays and case studies on matters of insurance law and current events.  We hope to educate, inform and entertain our clients, potential clients, and those who are simply interested in our practice.  And if a particular post peaks your interest, don’t hesitate to pick up the phone and speak to its author.  C&W lawyers pride themselves on being accessible and responsive.

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The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances.  No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

Dangers of Failing to Exchange Expert Witness Information

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February 29, 2016

In California, a party to a case has the right to demand the exchange of expert witness information. At times, expert witnesses can make or break a case, as demonstrated in a recent California Court of Appeal decision, Perry v. Bakewell, which highlights the importance of timely exchanging expert witness information in a case. In […]

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A Taking Is Not Always a Theft

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September 29, 2015

Under the “claim of right” theory, there is no theft when personal property is taken by someone who has a good faith belief that they are entitled to take the property. This rule applies even when the person taking the item is mistaken. The reasoning behind the rule is clear: a good faith belief by […]

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Scope of Insurance Code Section 2071 Appraisal Further Defined

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June 23, 2015

I thought you might be interested in a new case that just came down here in California that further defines the permissible scope of appraisal proceedings under Insurance Code section 2071. The law here in California is that the appraisal panel cannot get involved in making coverage decisions absent the agreement of both the insured […]

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Health Insurer Waives Right to Rescind Policy

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April 27, 2015

In DuBeck v. California Physicians’ Service (2015) 234 Cal.App.4th 1254, the Court of Appeal analyzed whether a health insurer waived its right to rescind its policy. On February 11, 2005, the insured visited the Revlon/UCLA Breast Center as she developed a lump in her breast. Thereafter, she was diagnosed with breast cancer after consulting with […]

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Appellate court addresses “Warming Fires”

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April 8, 2015

On Friday, the Second Appellate District weighed in on an issue that insurance carriers face fairly often which is whether the “warming fire” is an act of vandalism. Under the facts of Ong v. Fire Insurance Exchange, the tenants moved out in February of 2010 and the structure burned in December of 2011. The origin […]

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Arbitration Will Not Shield Bad Faith Claims

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July 11, 2014

In a recent California decision, the court in Maslo v. Ameriprise Auto & Home Ins. (2014) 2014 Cal.App. LEXIS 564 held that an insured can pursue a bad faith claim against an insurer when the insurer failed to investigate and evaluate the insured’s uninsured motorist claim, and instead insisted that the insured arbitrate the claim. […]

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No Feng Shui Here

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July 9, 2014

Every once in a while, there is good news for the insurance industry as a result of a court decision here in California. The United States District Court for the Northern District of California has recently concluded that there is no coverage for a Feng Shui consultant. In the case of Patel v. American Economy […]

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New Lawyers in California Must Promise Oath of Civility

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June 4, 2014

We all know some lawyers who give the profession a bad name, such as those lawyers who fire off a letter after a conversation that contains blatant misrepresentations, those who can’t agree on the time of day and those who make every case unnecessarily difficult to resolve. As of May 23, 2014, all incoming attorneys […]

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New More Stringent Building Codes Go Into Effect July 1, 2014

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May 12, 2014

CalGreen is expanded to include: Residential • All low-rise, high-rise, and hotel/motel buildings of R occupancy* (effective January 1, 2014) • All multi-family buildings with three or fewer habitable stories above grade (Groups R-1 and R-2)** Non-Residential • All new construction • All additions of 1,000 square feet or more • Alterations/valuations of $200,000 or […]

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What are you worried about? It’s just a subpoena.

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April 21, 2014

Many a businessperson is served with a deposition subpoena at some point in their career. The document is essentially a court order, issued by an attorney to a non-party witness, which compels them to go to a lawyer’s office and submit to sworn testimony. It may also (or instead) require production of business records, for […]

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Adjusters Beware

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April 15, 2014

A recent California Appellate Court case has just come down entitled, Michael Bock v. Craig Hansen, 2014 DJDAR 4280.  In that case, Travelers Property and Casualty Company hired an adjuster, Craig Hansen, to adjust the loss. This is a classic case of bad facts make bad law. The plaintiff insureds contended that Mr. Hansen, the […]

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Different Expectations Between Additional Insured and Named Insured

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March 10, 2014

In a recent case, the California Court of Appeal found that for purposes of determining whether an additional insured to an excess and umbrella liability policy is entitled to a defense by an insurer, the reasonable expectations of an additional insured may be different than the reasonable expectations of the named insured. Background In Transport […]

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Whose Ring Is It?

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February 14, 2014

It’s Valentine’s Day! And it falls on a Friday so you may be going out tonight and planning to give your special someone an expensive engagement ring and live happily ever after. Hopefully, that’s how life turns out for you but for some, the wedding never occurs and there is a bitter battle over who […]

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Recent Cases of Interest

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October 25, 2013

A couple of recent cases have come down that I thought were worthy of note.  The first case, Alexander v. Farmers Insurance Company, decided by the Second Appellate District in California, deals with whether a court can stay an appraisal proceeding pending resolution of a declaratory relief case.  In this case, the question was how […]

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Expert and Consultants: How do you pick the right expert?

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October 24, 2013

Expert consultants are chosen for a myriad of reasons, some good and some not.  Hopefully, the expert is selected because he or she has a proven track record, knows the subject matter, investigates in a thorough and responsible manner, testifies well at deposition and trial and isn’t afraid to give you bad news. Unfortunately, sometimes […]

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Experts and Consultants – What Could Go Wrong?

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August 30, 2013

Experts/consultants are often needed to answer questions, preserve evidence, and guide recovery efforts during an investigation.  Many questions can surface when working with experts, including: how do you pick the right expert?  What should they do?  What could go wrong? There is much to say, so this will be a multi-part affair.  Let’s take the […]

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The Hows & Whens of Subrogation Notice

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July 8, 2013

Hear Ye, Hear Ye. . . One of the more frequent questions that I receive from my insurance subrogation clients relates to the “hows” and “whens” of sending a notice letter to a potentially adverse party. The short answers are “in writing” and “now.”  The long answers take, well, longer.  First, the basics: When an […]

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Coverage Determined in Two Recent Cases Involving Vandalism and Leaky Pipes

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July 1, 2013

A couple of recent cases have come down that I think are worthy of mention. The first is Brown v. Mid-Century Insurance Company (Case No. B238357, filed 4/2/13).  In that case the California Court of Appeals ruled that the length of time a pipe leaks determines coverage rather than the circumstances of the pipe failure […]

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Tips for Thorough Recorded Statements

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March 26, 2013

Most insurance companies have a template of questions (recorded statement guide) for taking recorded statements, which is very useful. Even the most experienced statement takers can forget important questions in the heat of the moment. Moreover, having a template helps you learn from experience. If, for example, you discover later that you should have asked […]

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Not Your Usual Subrogation Claim

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March 13, 2013

The typical subrogation case usually goes something like this:  duty, breach, causation and damages. Once in a while, a contract with the adverse party provides a greater or better description of the duty, or a violation of a statute or code by the adverse party indicates negligence per se.  Often there are issues of contributory […]

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Working with Interpreters

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February 26, 2013

If you don’t understand a language spoken, how do you know if the interpreter is doing a good job? Interpretations should be as accurate as possible, with the answer in the first person. The truth is, it is difficult to know if the interpretation is completely accurate.  Here are some key points that will help […]

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Recent California Cases of Note

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February 1, 2013

I have come across a few California cases that I thought you might find interesting. The amount listed in the declarations for “actual cash value” is a limit and does not create a “valued” property policy. In the case of George v. Automobile Club of Southern California ((2011) 201 Cal.App.4th 431), the Court of Appeal […]

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Courtroom Experience Reminds Me of a Seinfeld Episode

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January 10, 2013

Do you remember the final episode of Seinfeld? In the courtroom was everyone the foursome had offended throughout the years. One after another, the witnesses came forward, reminding Jerry, George, Elaine and Kramer of all the selfish and dishonest (albeit funny) things they had done in past episodes of the show. I was reminded of […]

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Submission of Insurance Claims Not Always Protected Prelitigation Conduct Under First Amendment

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December 14, 2012

In a new published opinion, the California Court of Appeal, Second Appellate District, upheld a trial court’s finding that submission of insurance claims may not constitute protected prelitigation conduct under the anti-SLAPP law. In People ex rel. Fire Insurance Exchange v. Anapol, attorney Neil Anapol represented insureds who submitted claims arising from Southern California wildfires. […]

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California Court of Appeal Upholds No Duty to Defend Trademark Infringement Claim Where No Disparaging Acts Are Alleged

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November 9, 2012

Hartford Casualty Insurance Co. v. Swift Distribution Inc., B234234, Oct. 29, 2012 Background Hartford Casualty Insurance Co. (Hartford) issued a general liability insurance policy including advertising injury coverage to Swift Distribution Inc. (Swift).  The policy provided that Hartford would defend and indemnify Swift against any claims for damages resulting from the publication of material that […]

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Insurance Claim Denial Based on Untimely Proof of Loss

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November 5, 2012

  In the recent case, Henderson v. Farms Group, Inc. (2012) D.J.D.A.R. 14801, the Court was confronted with the question of whether an insurer could deny a claim based upon an insured’s failure to file a proof of loss within the time limits required by the policy.  The Court found, in accordance with prior case […]

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Issue Spotting

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October 17, 2012

Most  insurance companies have a strong staff of property adjusters with heavy case loads.  Sometimes they find that a case with good subrogation potential will slip through the cracks because evidence was not property preserved, or potentially adverse parties were not promptly notified of the loss.  Unfortunately, either misstep can give rise to a defense […]

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Virtual EUO Testimonial

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September 26, 2012

Technology innovation continues at Cummins & White.  Attorneys can now conduct Examinations Under Oath online and in real time, eliminating costly and time-consuming travel. Insurance attorney Melody Mosley recently utilized the virtual service to conduct an EUO with parties in three locations.  The insured was in Malaysia at a video conferencing center; Melody, her client, […]

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When is a Tenant an Implied Co-Insured?

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September 12, 2012

How about this one for creating an awkward silence at a cocktail party:  “Everyone knows that an insurance company can’t usually subrogate against its own insured.”  Depending on the audience, the conversation often goes downhill from there. The issue of “who is an insured” doesn’t usually arise at a cocktail party, but often does when […]

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Like a Good Neighbor

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September 6, 2012

We often talk about what happens when a common fence blows down but we rarely talk about what happens when, against his neighbor’s wishes, one neighbor cuts down a tree growing on the property line. The Soneses found themselves on the unfortunate end of this situation when they cut down an Aleppo pine tree that, […]

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Will a Policy Exclusion or Limitation for Increased Costs of Construction Due to Changes in Building Codes Limit Recovery for Building Losses in California?

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August 22, 2012

According to the Ninth Circuit, in the unpublished opinion of Sierra Pacific Power Company v. Hartford Steam Boiler, perhaps not.  The Ninth Circuit found that the policy exclusion exclude damages caused by the peril of building ordinances, but not the increased construction costs caused by intervening building ordinances when the loss itself was caused by […]

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Do Liability Insurers Owe Coverage for a Building Owner Against Claims for Inhabitability of an Apartment Complex?

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August 8, 2012

Not if the facts establish that the owner had constructive knowledge as to how the apartment complex was being managed. Moreover, the insured owner cannot hide behind a status as an “innocent co-insured” if the facts establish the owner is in a position to learn about the management style and condition of the property so […]

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Insurance Companies Required to Pay Overtime to Adjusters

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July 30, 2012

A California court has ruled insurance companies must pay their insurance adjusters overtime. Pursuant to Wage Order 4-1998  and Wage Order 4-2001, regulations promulgated by California’s Industrial Welfare Commission (ICW), as well as the Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999 employers do not have to pay overtime to administrative employees. Interpreting the statute and […]

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Examination Under Oath—How Long Is Too Long?

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How long will my examination under oath take? This is a frequent question, but the answer is not easy. Really, it all depends. Typically, EUOs take a few hours and are longer depending upon the number of items claimed. Other factors, such as the personality of the witness, come into play as well. For example, […]

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Insurance Matters

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July 11, 2012

It is an honor to kick off the newest Blog  penned by the lawyers at Cummins & White.  Joining the Construction and Estate Planning Groups  the Insurance Group will post articles, essays and case studies on matters of insurance law and current events.  We hope to educate, inform and entertain our clients, potential clients, and […]

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When Does Insurance Cover Faulty Workmanship?

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March 21, 2012

Usually, commercial general liability (“CGL”) policies do not cover a contractor for property damage due to the contractor’s own faulty workmanship.  As one California court summarized:  “Generally liability policies … are not designed to provide contractors … with coverage against claims their work is inferior or defective…. Rather liability coverage comes into play when the […]

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