Law Offices Of

Jo Ann Montoya recently obtained a declaratory relief judgment establishing the absence of a duty to defend on behalf of an insurer whose policyholder had been sued as a result of a fight in a shared parking lot outside of the insured’s business. The insurer denied a defense based on the assault and battery exclusion and then filed suit for declaratory relief. The court agreed the assault and battery exclusion precluded the insurer’s duty to defend and entered a judgment against the insured.

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John Peer and Jo Ann Montoya recently obtained summary judgment for an insurer client in a multi-million dollar contribution lawsuit. The underlying litigation involved the U.S. Department of Justice suit against Donald Sterling and his property management for discrimination in violation of the Fair Housing Act, 42 U.S.C. § 3601, et seq.  

After paying to defend and settle the action, another insurer sought to recover from our client the approximately $9,000,000 in defense, indemnity and interest payments it had incurred to resolve the case. 

Our client’s policies applied to discrimination “not done intentionally or at the direction of the insured” and required the discrimination to be caused by an “occurrence” defined as “an accident”.  Based on arguments we presented, the federal district court agreed that the underlying lawsuit sought only damages for intentional discrimination and therefore our client had no duty to defend or indemnify.  As a result, the excess insurer recovered nothing.

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Greg Scher and Jo Ann Montoya recently obtained victories for clients at the Court of Appeal. 

In BETA Healthcare Group Risk Management Authority v. NORCAL Mutual Insurance Company, the Second Appellate District, Division Two, upheld summary judgment in favor of our client on an issue of notice under a claims made and reported professional liability policy.  BETA argued that notice of a claim sent to one doctor under a claims made and reported policy insuring multiple doctors practicing within a medical group constituted notice of the claim to another doctor who treated the same patient for the same injury, even though that doctor was not specifically mentioned in the notice.  The appellate court held that the notice related to a single insured and no actual claim was "made" against the second doctor until he received notice that a claim was being made against him.  The separation of insureds provision in the NORCAL policy operated such that related claims against two physicians would not be considered a single claim, and notice of one claim to one doctor did not constitute notice of the other claim to another doctor under the same policy.

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In Rivera v. Valley Forge Insurance Company, the claimant challenged the propriety of our client's cancellation of the general liability policy one day prior to a wrongful death loss.  A dispute arose over the terms of the premium payment plan.  The insured paid 50% of the premium as a down payment.  The carrier issued the policy and then invoiced for the next installment payment.  When the insured failed to pay the first installment, Valley Forge issued a Notice of Cancellation, mailing it to the insured and to the managing general agent, which sent it to the retail agent by facsimile.   The insured failed to pay by the due date and the policy cancelled.  The loss occurred one day later and the insured attempted to remit the premium payment after the loss.  Valley Forge refused to accept payment and returned the unearned premium to the insured.  The plaintiff (the deceased's mother) contended that having paid 50% of the premium as a down payment, it has at least six months of "equity" in the policy and Valley Forge was estopped to cancel before then, as no payment was due.  She also contended that the insured never agreed to a quarterly installment plan and that Valley Forge invoiced an improper amount.  The appellate court affirmed the summary judgment in favor of Valley Forge, concluding that the dispute regarding the payment plan was legally irrelevant because under any payment plan, the insured failed to pay the premium when due and Valley Forge properly cancelled the policy.

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Greg Scher and Jo Ann Montoya recently obtained summary judgment for an insurer client who denied coverage to an insured on a commercial property policy when the insured’s bank account was looted by a computer hacker who gave the insured’s bank wire transfer instructions, successfully stealing hundreds of thousands of dollars. The insurance policy did provide coverage for stolen money and securities used in the insured’s business while at a bank, but when the insured submitted a theft claim, the insurer denied coverage based on an exclusion for property taken based on unauthorized instructions. The insured argued that the coverage exclusion only applied to money taken from the described business premises shown on the policy, and in any event the exclusion so applied would render the money and securities coverage illusory. Multiple rounds of supplemental briefing and oral argument resulted in the court rejecting the insured’s arguments and entering summary judgment in favor of our firm’s insurance company client.

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Jo Ann Montoya recently obtained summary judgment in a contribution action on behalf of two insurers which received tenders of defense from the named insured materials supplier in connection with several construction defect cases. A third insurer refused to defend, contending there was no potential for covered property damage arising out of the product supplied; the insured did not install the product or provide any other work related to construction of the homes. The construction defect complaints and cross-complaints, however, alleged defects with the product supplied, among other defects, and also alleged the homeowners suffered damage to the homes and their component parts arising from the alleged defects. The trial court agreed the allegations triggered a potential for covered damages. The trial court entered judgment in favor of our clients for the recalcitrant insurer’s share of defense and indemnity expenses, concluding the insurer did not overcome the presumption that the amounts paid in settlement were for covered damages.

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Jo Ann Montoya obtained summary judgment in favor of a professional liability insurer that issued a policy to a medical group and the individual physician members of the medical group. A claim was submitted against the medical group and one of the insured physicians prior to expiration of our client’s claims made and reported policy. A lawsuit was ultimately filed during the subsequent insurer’s policy and a second insured physician was named in the lawsuit. The insured medical group provided notice of the lawsuit to both our client and the subsequent insurer. Our client agreed to defend the medical group and the one physician for which notice had been provided during the policy period. Our client declined to defend the second insured physician as no notice of a claim or a potential claim had been given during the policy period. The subsequent insurer agreed to defend that insured physician, but sued our client for contribution. The court agreed notice of a claim against one insured under a group policy did not constitute notice of claims against each insured physician and granted summary judgment in favor of our client.