When Should An Insurer Deny Coverage For The Insured’s Unconsented To Settlement With The Claimant? Not When The Insured Is Settling Only Uncovered Claims


Most standard liability policies contain a clause either as a condition of coverage or as an exclusion that the insured cannot make a “voluntary” payment to settle claims without the insurer’s consent. Sounds relatively simple, right? Not really. The paradigm case where an insurer will be well within its rights to deny coverage for the insured’s voluntary payment is where the insured settles a covered claim without tendering the claim to the insurer first but then demands that the insurer reimburse the insured for the settlement. Unlike other “notice” provisions, in California, the insurer is not required to show prejudice before standing on the voluntary payments clause to deny coverage. Because an insurer is not required to show prejudice from late notice of the tender of indemnity for voluntary settlement payments, California courts have denied coverage for voluntary payments and settlements made post tender and while the insurer was defending the claim.

One might think then that anytime an insured settles a claim, pre or post-tender, the insurer could deny coverage. The answer? Sort of. Why? It depends on what the insured is settling. The following example illustrates the problem. Say the insurer is defending covered and uncovered claims under a reservation of rights, and is also reserving its right to seek reimbursement for defending uncovered claims as authorized by the California Supreme Court’s Buss decision. A mediation is scheduled and the insured and the insurer are participating in the mediation. The insured is worried about a large uncovered judgment being entered against. You, the claims adjuster, believe you have a good chance of defensing the covered claims or obtaining a result far less than the plaintiff’s demand. You offer nothing towards the settlement of the non-covered claims. The insured ponies up his own dough to effect a settlement with plaintiff for all the non-covered claims because the insured is afraid of:

(1) A massive judgment for which there is no insurance coverage as per the insurer’s reservation of rights letter; and

(2) A second lawsuit by the insurer for reimbursement for the defense of the uncovered claims.

Presently, no California state court has addressed this exact factual scenario, despite this becoming a more common situation. Do you believe you could justifiably deny all coverage to the insured if the insured settled only the non-covered claims, thereby leaving only the covered claims to be litigated?

The Ninth Circuit Court of Appeals said no, in a case involving Tosco oil refineries in the context of worker’s compensation insurance for claim arising out of the Northern District of California. (See Travelers Prop. Cas. Co. of America vs. ConocoPhillips Co. [Tosco] (9th Cir. (Cal.) 2008) 546 F.3d 1142, 1146.) The Ninth Circuit recognized that in ever case where a California court denied coverage for the insured’s breach of the “no voluntary payments” clause of the policy, the insured was seeking reimbursement for the settlement of covered claims, thereby denying the insurer the right to defend the claim as the insurer saw fit. (Recall that though insurer’s have a duty to defend in liability insurance, it always described as the “right” and duty to defend.) In the Tosco case, the insurer denied coverage for the covered claims it was defending because the insured had settled the non-covered claims that the insurer was defending under a reservation of rights. Tosco was not seeking reimbursement for its settlement of the non-covered claims, but merely sought the continued defense and indemnity for the admittedly covered claims. The Ninth Circuit found that Tosco’s insurer could not rely on the no voluntary payments coverage provision to deny Tosco coverage for the insured claims. (The court also found that the insured didn’t technically “pay” money to the claimant but did not take an authorized “credit,” which the court also found did not technically qualify as a “payment” so as to amount to a breach of the policy’s “no voluntary payments” exclusion.)

Even the California state cases that have denied coverage for breach of the “no voluntary payments clause” recognize an exception to the insurer’s ability to lawfully deny coverage where the insured “faces a situation requiring an immediate response to protect [the insured’s] legal interests.” (Truck Ins. Exch. vs. Unigard Ins. Co. (2000) 79 Cal.App.4th 966, 977, fn. 15.) 

The above fact pattern is snake pit to the unwary. Relying on the “no voluntary payments” clause to deny coverage for the covered portion of the claim is a high risk proposition. The insured will argue that he or she was forced to settle to avoid a large uncovered judgment and to avoid a subsequent Buss action. There is little equity in arguing to a judge or jury that the insurer has the legal right to:

(1) Bar the insured from capping the insured’s personal, non-covered liability exposure; and

(2) Run up defense costs and fees on the uncovered claims only to seek reimbursement for defending the non-covered claims in addition to the insured having to pay the claimant the uncovered portion of the judgment.

“That dog don’t hunt.” It will likely result in a successful breach of contract/insurance bad faith action because it won’t look like the insurer gave at least as much consideration to the insured’s interests as the insurer gave itself. The solution? Don’t deny all coverage if the insured wants to settle claims you are disclaiming coverage for. But, do remind the insured that the insurer has no obligation to reimburse the insured for settling non-covered claims. There may even be times when it would be worth making a small costs of defense contribution to resolve non-covered claims, thereby eliminating the need for independent or Cumis counsel.

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Is California Bringing Back Statutory Bad Faith Claims? California Supreme Court Revisits Moradi-Shalal


By John Armstrong

California experimented with allowing third-party claimants to sue insurers for insurance bad faith in the landmark case of Royal Globe. The decision was decried by the Insurance Bar and commentators throughout the United States. They found that, among other problems, it created uncertainty when an insurer would be liable for such “third party” bad faith, i.e., before the insured was determined liable to the claimant? 

Royal Globe authorized a private right action to recover damages for an insurer’s violation of the California Department of Insurance’s insurance regulations, codified in the California Code of Regulations. The portion of these regulations dealing with good faith claims handling were based on California Insurance Code, § 790 et seq., styled the “Unfair Insurances Practices Act” or “UIPA.” Based on these statutes, the California Insurance Commissioner adopted a series of regulations styled “good faith claims practices,” which the California Insurance Commissioner may still enforce against insurers issuing policies to California insureds.

Years after Royal Globe, the California Supreme Court expressly overruled Royal Globe in Moradi–Shalal v. Fireman’s Fund Insurance Companies (1988) 46 Cal.3d 287, at 292, by holding that that there was no private right of action to recover damages for violations of the California Department of Insurance’s regulations.

Subsequent California appellate court decisions thereafter repeatedly held that there was no private right action for violations of the California Department of Insurance’s insurance regulations. Appellate courts expansively applied this bar to even first party claims though factually Royal Globe and Moradi-Shalal involved third party claims. And, though not considered in Moradi-Shalal, appellate courts have barred claims under California’s broad Unfair Competition Law (“UCL”), codified at Business & Professions Code, § 1700, et seq., when a private right of action was based on Insurance Commissioner regulations.

In the last few years, however, courts have carefully examined the holding in Moradi-Shalal and determined that it did not outright bar claims against insurers based on regulatory violations. Similarly, the Ninth Circuit has also limited the holding of Moradi-Shalal as barring only private damage claims against insurer for regulatory violations.

To summarize the problem, though appellate courts have applied Moradi-Shalal to first party cases, the California Supreme Court never has decided this. Also, Moradi-Shalal did not decide or discuss whether a plaintiff has a private right of action for restitution or injunctive relief under California’s Unfair Competition Law (“UCL”) [Business and Professions Code, § 17200 et seq.]. In the last few years, the Supreme Court has applied § 17200 broadly because the remedies are more limited, that is the return or money or property that defendant obtained from the plaintiff and injunctive relief versus compensation from the harm sustained from an alleged regulatory violation. Finally, Moradi-Shalal never discussed whether a private right of action under California’s UCL exists for insurance regulatory violations other than claims handling or for express statutory violations of the California Insurance Code.

Presently, two cases are pending before the California Supreme Court addressing these issues raised above; namely, Zhang v. Superior Court (2009) and Hughes vs. Progressive (2011). Both opinions are presently unpublished and not citable as authority until the California Supreme Court decides these cases. 

In Hughes, the appellate court found that the plaintiff stated a private cause of action under the UCL for alleged statutory violations of Insurance Code, § 758.5, which prohibits insureds from being required to use a specific auto repair facility designated by the insurer and from suggesting the use of a specified auto repair facility without telling the insured in writing that the insured may select another repair facility. Though § 758.5 was not part of the UIPA, it authorizes the Insurance Commissions to enforce its provisions along with the UIPA.

In Zhang, the appellate court allowed allowed a UCL false advertising claim against an insurer for allegedly falsely representing that the insurer would properly and promptly pay claims though it allegedly had no intention of doing so.

The above cases are important to insurers doing business in California in that these companion decisions are likely to change the landscape for what insurers may be sued for in California. There is a good chance for a modest expansion of Moradi-Shalal—especially since the California Legislature narrowed the standing requirements for UCL claimants to only those persons directly affected, and because of the limited remedies a UCL plaintiff may recover.

Restitution would ordinarily be a return of the insured’s premium for successful fraudulent advertising plaintiff under Zhang. A Hughes plaintiff, may be entitled to recover whatever the insured pay to the company designated/recommended repair facility and possibly the return of the insured’s insurance premiums. These remedies are far less drastic than the Royal Globe remedy allowing claims for money damages, including all detriment and losses the insured suffered, plus emotional distress, and other damages. On the other hand, Supreme Court would be within its rights to take an expansive of Moradi-Shalal and eliminate claims based on statutory or regulatory violations, other than common law claims for insurance bad faith.

The lesson? It’s a safer and better practice to do what the California Insurance Code requires and to follow the the California Insurance Commissioner’s regulations. It’s also a good idea to have insurer-related advertising run by experienced lawyers familiar with insurance bad faith to avoid potential problems. Regardless whether a “separate” cause of action exists, experienced insurance bad faith counsel will use the Insurance Code and Insurance Regulations to establish the floor of good faith insurer conduct in insurance bad faith actions, making an ounce of prevention worth a pound of cure in this evolving area of law.

Good Faith Claims Denial? Yes, Virginia, It Is Possible Even In California By Following These 6 Steps


Every time a claim is denied, there is always a concern that the claimant will sue for insurance bad faith. Claims denials should not be taken lightly. Even if it is clear to you that the claim is not covered, I suggest doing the following to make it difficult, if not impossible, for a claimant to prevail in a bad faith claim against your company following your denial. (I cannot say that the following will prevent a bad faith claim; if a monkey pays the requisite filing, that monkey can at least file suit in California. The goal here is to discourage reputable counsel from pursuing bad faith claims, and that’s worth avoiding.)

First, make sure you’ve looked at all the insured’s coverages with your company, not just the policy the insured tendered under. If the insured has other coverages with your company that may cover the claim, advise the insured in writing that the company is still evaluating the claim for coverage. Do not deny the claim out of hand. You are entitled to conduct a reasonable investigation before denying coverage. So conduct a reasonable investigation first.

Second, respond to the claim within 15 days of your receipt of the claim in writing to the insured. California Department of Insurance Regulations regarding liability carriers to advise the insured in writing within 15 days the status of the claims. (10 Calif. Code of Regs., § 10 CCR § 2695.5, subdivision (b).) You don’t have to accept or reject the claim within 15 days, just acknowledge you’ve received the claim and are evaluating. If the insured inquires about the status of the claim, you need to respond within 15 days with what you know about the claim and what you’re doing about, such as evaluating it, investigating, etc. The insurance regulation above notes that you can just make a note in your claims file when the claim came in, but it is a better practice to both note your file and tell the insured in writing that you are considering the claim. Why, because the insured has tendered and is wondering what, if anything, the insurer is doing with the claim, and will be much more patient knowing someone is working on the claim.

Third, provide the claimant any necessary forms, instructions, and reasonable assistance the claimant needs to properly make the claim, which includes telling the insured if there is missing information necessary to make a valid proof a claim. This also required under the same insurance regulation cited above at subdivision (e). Failing to tell the insured what the insured needed to do in order to submit a valid claim will not make the claim go away. It will most likely encourage the insured to get an insurance bad faith lawyer or encourage the insured to complain to the California Department of Insurance—results you are trying to avoid.

Fourth, investigate the claim. Some claimants won’t have counsel. Some claimants who have counsel don’t have legal counsel knowledgeable about insurance practices. You shouldn’t just rely on the insured’s tender to tell you everything you know about a claim. On receipt of a claim, you should verify with the insured that insured and insured’s counsel, if any, have provided you with all information relating to the claim, including copies of any pleadings or discovery. If you know who the attorney representing the party suing the insured, call that attorney and ask for information about the claim. You could also retain coverage counsel to assist with your investigation if necessary. The point is you want to document your file that you made reasonable efforts to gather information about the claim before denying it. In California, an insurer can be liable for insurance bad faith for failing to reasonably investigate a claim. Note too that the same California insurance regulation cited above also requires “any necessary investigation of the claim.” Here, “necessary” and “reasonable” are synonymous. What you want to avoid is having an empty claims file that shows little or no effort went into investigating the insured’s claim. If you deny without conducting a reasonable investigation, you are encouraging an insurance bad faith lawyer to take the claimant’s case.

Fifth, if its close to being a “close call” about whether coverage exists, get a second opinion. Even better two. Run the claim by a more experienced and knowledgeable adjuster at your company, and not your file that you did this. Get an opinion from coverage counsel too, and make sure you note that in your file.

Sixth, when denying the claim, carefully explain to the insured the coverages the insured had, what your understanding of the claim is, and what you did to investigate the claim. Then explain why there is not coverage under the policy for the claim that the insured submitted. Most insureds are not insurance experts and many lawyers do not practice insurance law. A well thought out, thoughtful, and professional denial letter is perhaps the best talisman to ward off bad faith claims. Why? Because the letter should should the good faith consideration the company undertook to evaluate the claim. It would be Exhibit “1” to your company’s defense. The importance of such a letter cannot be understated. If there is something you missed, or if your information is incomplete, you’ve not put the ball in the insured’s court to respond. Even in California, insurers are not liable for mistakes or even ordinary negligence in claims handling.

Following the above six steps creates an evidentiary record showing good faiths claims handling. It will help your defense counsel immensely if you followed these steps, and will both ward off potential bad faith claims or certainly make the resolution of such a claim more favorable for your company.  

Handling Claims Professionally Is Handling Claims In Good Faith—Unprofessional Claims Conduct May Land You With Bad Faith Litigation


By John Armstrong

Claims adjusters today are more competent and better trained than ever. I have had the privilege of lecturing and meeting claims adjusters throughout the U.S., Canada, and Great Britain. Contrary to the opinions of the plaintiff bar, most of them are caring, hard working individuals who want to be fair and do the right thing. So why do we hear so much about insurance “bad faith”? Well…. the professionalism is a mixed bag. Those who have more knowledge, skill, and training, are expected to act like of person of more knowledge, skill, and training. This is especially true if you have “alphabet soup” letters following your name or title regarding all the insurance certifications you’ve obtained.

Let me give you an example to show what I’m talking about. Let’s say you get in a claim. You (especially having read one of my earlier posts) see what coverages the insured has. You determine that the claim is probably not covered under the liability policy but probably is covered under a property policy the insured bought at the same time from your company.

You could deny the claim, but that’s a bad idea for reasons I’ll discuss shortly. Or, you could let the insured know your company is still “reviewing” coverage, and send the claim the company’s property adjuster for review, indicating that you’re inclined to deny under the general liability policy. Why? Because from the insured’s, the court’s, the jury’s, and the rest of the world’s point of you, the tender is to the entire insurance company. This is especially true for insurers insuring insureds in California (say that 3 times fast), since the legal standard is that the insurer is to engage in searching inquiry to find coverage. Put simply, you represent your entire company, not just the kinds of policies the company assigned you to adjust. But don’t panic. You don’t need to be an expert in lines your not certified in. You just need to communicate to the insured that the company is still reviewing coverage until the appropriate lines of coverage that might be affected have all had a chance to review and assess the claim.

Why not deny? Well, besides getting hit with a suit for bad faith—which is going to be difficult to defend if the company did insure the claim but just not under the policy you were examining, the insured may be able to recover pre-tender costs and fees that otherwise would not be recoverable.

California cases hold that an insurer who wrongfully denies a claim that the insurer covered buys the entire loss—even if the insurer decides to later cover the claim. Why? Because the California courts adopt the reasoning that if the insured had tendered immediately, the claim would have been denied then anyway. Thus, you not only avoid a bad faith claim, you also minimize the company’s risk by not outright denying the claim.

And, think about it from the insured’s perspective. If you “find” coverage for the insured, insureds don’t care which policy covers the claim with your company only that the claim is covered. They have a great experience and say good things about your company to others, and business grows. If, for whatever reason, the company were sued for bad faith, don’t you think the judge and jury would be impressed at your zeal to help the insured get coverage? Being professional pays good faith dividends.

Changes to Federal Diversity Law for Liability Insurance Companies Raises Federal Jurisdictional Problems for the Insurance Bar


By John Armstrong

Congress made significant changes to the laws allowing the removal of actions filed in local state courts to be removed to federal court. Two kinds of cases have historically been allowed to proceed in federal court—even if filed and served in state courts, namely, “subject matter jurisdiction” where a federal law or policy is the gravamen of the claim and “diversity jurisdiction” where the dispute involves more than $75,000 and all of the plaintiffs and all of the defendants are residents of different states.

Congress changed what are known as the “removal statutes,” namely Title 28 U.S.C. § 1332 and § 1441. Section 1332 makes every corporate insurer, as a matter of law, a “citizen” of the state in which the insured resides, as well as the state of the insurer’s corporate incorporation, and where the insurer’s principal place of business. This is important because insurers can no longer bring declaratory relief actions against their insurers in federal court, and because insurers can no longer remove insurance bad faith actions to federal courts

Some states, like Louisiana,  allow a tort victim to sue the defendant’s liability insurer directly. In response to a large number of federal suits filed in the federal courts in Louisiana, Congress expanded the definition of “citizenship” for insurance companies. Liability Insurance companies are now a resident of the state in which they are incorporated, where their principal place of business [the corporation’s “nerve center” where its chief executive operations take place], and are deemed a resident of the same state that their insureds reside in if:

1) There is a “direct action” against a liability insurer; and

2) The insured is not joined as a party-defendant.

See the problem? “Direct action” is not defined. If the insured sues the insurance company directly for declaratory relief or for insurance bad faith, does this mean that the insurer can no longer remove to federal court? If the insurer cross-complains against the insured, is the insured now “joined” as a party-defendant? If an insurer sues in federal court first, can the insured move to dismiss for lack of diversity? The answer? Only time will tell. The answer will depend on how each court faced with these issues decides it.

A purely literal interpretation seems to preclude an insurer from removing the insured’s declaratory relief or insurance bad faith action since the insured is not a “party-defendant” at the time of the attempted removal, and the action would be a direct against an insurance company. Though the Congressional history shows that Congress intended to limit victims from suing insurers in federal court, the plain language in the Act does not contain such a limitation.

Oddly, if the insurer sues the insured first, the insured may not be able to dismiss for lack of diversity jurisdiction, since a literal interpretation of the Act only makes a liability insurer a citizen of the same state as its insured when the insured is “not joined as a party-defendant.”

If the changes to the Act are read in view of the Congressional history, a court should interpret the Act as defeating diversity jurisdiction only in actions where state law allows a victim to sue the wrongdoer’s insurer directly, which interpretation is consistent with the text’s reference to applying where insureds are not joined as party-defendants.

It’s worth noting that changes don’t apply to property insurers, i.e., “non-liability” insurers. Or do they? What if a property policy provides a defense or indemnity for a certain kind of liability claim? Would the court look to the type of policy issued or to the insuring provision? Again, only time will tell. Now, the insurance bar is free to argue either way until we get some judicial interpretation of these new changes.

Changes to Federal Diversity Law for Liability Insurance Companies Raises Federal Jurisdictional Problems for the Insurance Bar


By John Armstrong

Congress made significant changes to the laws allowing the removal of actions filed in local state courts to be removed to federal court. Two kinds of cases have historically been allowed to proceed in federal court—even if filed and served in state courts, namely, “subject matter jurisdiction” where a federal law or policy is the gravamen of the claim and “diversity jurisdiction” where the dispute involves more than $75,000 and all of the plaintiffs and all of the defendants are residents of different states.

Congress changed what are known as the “removal statutes,” namely Title 28 U.S.C. § 1332 and § 1441. Section 1332 makes every corporate insurer, as a matter of law, a “citizen” of the state in which the insured resides, as well as the state of the insurer’s corporate incorporation, and where the insurer’s principal place of business. This is important because insurers can no longer bring declaratory relief actions against their insurers in federal court, and because insurers can no longer remove insurance bad faith actions to federal courts

Some states, like Louisiana,  allow a tort victim to sue the defendant’s liability insurer directly. In response to a large number of federal suits filed in the federal courts in Louisiana, Congress expanded the definition of “citizenship” for insurance companies. Liability Insurance companies are now a resident of the state in which they are incorporated, where their principal place of business [the corporation’s “nerve center” where its chief executive operations take place], and are deemed a resident of the same state that their insureds reside in if:

1) There is a “direct action” against a liability insurer; and

2) The insured is not joined as a party-defendant.

See the problem? “Direct action” is not defined. If the insured sues the insurance company directly for declaratory relief or for insurance bad faith, does this mean that the insurer can no longer remove to federal court? If the insurer cross-complains against the insured, is the insured now “joined” as a party-defendant? If an insurer sues in federal court first, can the insured move to dismiss for lack of diversity? The answer? Only time will tell. The answer will depend on how each court faced with these issues decides it.

A purely literal interpretation seems to preclude an insurer from removing the insured’s declaratory relief or insurance bad faith action since the insured is not a “party-defendant” at the time of the attempted removal, and the action would be a direct against an insurance company. Though the Congressional history shows that Congress intended to limit victims from suing insurers in federal court, the plain language in the Act does not contain such a limitation.

Oddly, if the insurer sues the insured first, the insured may not be able to dismiss for lack of diversity jurisdiction, since a literal interpretation of the Act only makes a liability insurer a citizen of the same state as its insured when the insured is “not joined as a party-defendant.”

If the changes to the Act are read in view of the Congressional history, a court should interpret the Act as defeating diversity jurisdiction only in actions where state law allows a victim to sue the wrongdoer’s insurer directly, which interpretation is consistent with the text’s reference to applying where insureds are not joined as party-defendants.

It’s worth noting that changes don’t apply to property insurers, i.e., “non-liability” insurers. Or do they? What if a property policy provides a defense or indemnity for a certain kind of liability claim? Would the court look to the type of policy issued or to the insuring provision? Again, only time will tell. Now, the insurance bar is free to argue either way until we get some judicial interpretation of these new changes.

Dealing With Difficult People-Kill ‘Em With Kindness Is The Best Policy—No Matter How Much It Hurts You


By John Armstrong

Being in business means dealing with people. Being involved in insurance claims means dealing with difficult people. Normal, good, decent people tend to be difficult or impossible when under stress. You and your company may be wrongly accused of all kinds of things. You may be threatened with lawsuits or worse. What to do? Turn the other cheek! Don’t given into the temptation to write about how you really feel to the claimant, in your claimants, or to anyone. If you really feel the need to do, write what you want to say on waste paper, and then shred your personal thoughts. While valid, they have no place in the insured’s claim file. 

Why? Well… I began my career defending insurance bad faith property cases arising out of the 1994 Northridge Earthquake. The most difficult cases to defend where ones in which the claims adjuster wrote “less than nice things” about the insured.The lawyers armed with the claims correspondence all obtained recoveries and better ones, than where there wasn’t this added “bad fact” in defending the claim. (Of course only this information was only produced after valiant efforts were made to protect the claims file.) The sad part was that if you carefully reviewed the entire file, you understood where the adjuster was coming from. But all that anyone on a jury would be focused on would be the “bad”  comments by the adjuster.

From a juror’s perspective, the claims adjuster, as the insurer’s agent, has all the cards in his or her favor. The claimant has suffered a loss, and may be out thousands of dollars or more and may even have sustained permanent bodily injury from the event giving rise to the claim. In contrast, the claims adjuster’s stress “only” has to deal with fairly adjusting the loss. No doubt the adjuster must deal with the verbal and written threats by the insured and insured’s attorney. No doubt it its unpleasant. But adjusters are held to a higher level. They are expected to be professional at all time because, after all, claims is their profession. 

To illustrate what I’m writing about, I once had to defend a claimant who was also an attorney. I had to copy all of correspondence to the handling and senior claims adjuster and coverage counsel since there was such a high chance of the insured suing for bad faith. But not matter how nasty the multiple tomes of single-spaced emails I received every day, I always responded with kindness and professionalism. The result? We got the claim resolved, and when it was all over, the insured sent me a very nice and unexpected thank you. That is a much happier result than trying to defend your words once your company is sued for bad faith. The moral? Kill ‘em with kindness. It’ll save you and your employer countless headaches and plenty of $$$ in the long run.

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