STATE SUPREME COURTS

Hartwell Corporation v. Superior Court of Ventura County, 27 Cal.4th 256 (2002)
Consumers brought actions against water utilities, unregulated water providers, and industrial defendants to recover damages and injunctive relief for unsafe drinking water. The Supreme Court granted review, superceding the opinion of the Court of Appeal, and held that the PUC has authority to enforce water quality and limited authority to adopt water quality standards for regulated utilities, that challenges to the adequacy of drinking water standards was barred by statute depriving the superior court of jurisdiction to review, reverse, correct, or annual any order or decision of the PUC or to interfere with the PUC in the performance of its official duties, that the statute did not bar damage claims against water utilities based on the theory that the water failed to meet federal and state drinking water standards, nor superior court actions against unregulated water providers and industrial defendants, but it did bar an injunction against water utilities for violating drinking water standards.

Phillips v. Interstate Hotels Corporation dba Chattanooga Marriott, 974 SW 2d 680 (Tenn. Sup. Ct. 1998)

Mercy Hospital and Medical Center v. Farmers Insurance Group of Companies, 15 Cal.4th 213 (1997)
Plaintiff sued Defendant for recovery of the full amount of its statutory lien for emergency services rendered to an injured passenger riding in the vehicle of the defendant's insured. The trial court held the Plaintiff was entitled to recover half of the policy limit less $100, as provided under Civ. Code, former §3045.4 (limitation on liability for amount of hospital lien for emergency services). The Court of Appeal and Supreme Court affirmed, holding that under Civ. Code, former §3045.4, when an insurer or other payor fails to pay a hospital at the time of judgment, compromise, or settlement, the hospital is entitled to as much of its lien as can be satisfied out of 50% of the judgment, compromise, or settlement amount less $100, therefore the hospital was not entitled to the full amount of its lien.

California State Automobile Association Inter-Insurance Bureau v. Superior Court, 50 Cal.3d 658 (1990)
Real party in interest was severely injured when Petitioner's insured allegedly drove his vehicle the wrong way on a one-way street while intoxicated. Real party settled with Petitioner, stipulating that the insured admitted liability, agreed to pay damages, and that real party reserved her rights against Petitioner. The stipulation was signed by attorneys of the parties and the judgment was entered. Before finality of Moradi-Shalal v. Fireman's Fund Insurance Companies, 46 Cal. 3d 287 (1988), real party sued Petitioner for damages, alleging breach of Insurance Code §790.03(h). Because of the decisions in Royal Globe Insurance Company v. Superior Court, 23 Cal. 3d 880 (1979) and Moradi-Shalal, there was confusion whether a stipulation of the insured's liability signed by the insurer, insured, and third party claimant, and entered as a judgment satisfies the "condition precedent" set out in Moradi-Shalal. The court found that a stipulated judgment under the circumstances presented in the current case constitutes a "judicial determination" as required by Moradi-Shalal, therefore a third party claimant is able to bring a pre-Moradi-Shalal §790.03(h) action.

CalFarm Insurance Company, et al. v. Deukmejian, et al., 48 Cal.3d 805 (1989)
Insurers petitioned the Supreme Court for a writ of mandate declaring Proposition 103, relating principally to car insurance, unconstitutional on its face. The court granted the request, and upon deciding to assume jurisdiction, vacated the stay except as to the provisions requiring a rate reduction of 20% below 1987 rates, limiting interim (first-year) insurance rate relief to companies substantially threatened with insolvency, and requiring a mailing notifying insureds of the opportunity to join a nonprofit corporation to advocate their interests. The court found the insolvency standard violated the due process clauses of both state and federal Constitutions, and the formation of the consumer-advocacy corporation violated the state Constitution. And instead of determining the validity of the tax-adjustment provision, the court held that the state Constitution generally bars prepayment review of tax measures and that the circumstances of this case did not justify an exception to that rule. With exception to these provisions, the court found Proposition 103 to be constitutional.

Key Capital v. Avery, 259 Ga.133, 376 S.E.2d 886 (1989)

UNITED STATES COURT OF APPEALS

Public Utility Dist. No. 1 of Snohomish County v. Dynegy Power Marketing, Inc., 384 F.3d 756 (9th Cir. (Cal.) 2004)

CSX Hotels dba The Greenbrier v. NLRB, U.S. 4th Cir. Ct. of Appeals (July 26, 2004)

Vess v. CIBA-GEIGY Corp., 317 F.3d 1097 (9th Cir. 2003)
We were co-counsel for the largest advocacy group for children and adults with attention deficit and hyperactivity disorder. The Plaintiff brought a class action against psychiatric and advocacy associations and manufacturers of prescription pharmaceuticals, alleging that Defendants increased sales of particular prescription drugs in violation of California Consumers Legal Remedies Act (CLRA) and California's unfair business practice laws. The United States District Court for the Southern District of California granted judgment for Defendants on a motion to dismiss and under California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. The Plaintiff appealed. On appeal, the dismissal of our client was upheld, with the Court holding as to our client that: (1) dismissal with prejudice of Plaintiff's complaint against the associations was warranted, and (2) striking patient's lawsuit against the associations under California's anti-SLAPP statute was warranted.

Downie v. Swiss Grand Hotel, 67 F.3d 301 (7th Cir. 1995)

Aetna Casualty & Surety Company v. Merritt, 974 F2d. 1196 (9th Cir. 1992)
Insurer brought an action for declaratory judgment against co-venturers in a joint venture condominium construction project seeking determination as to liability for damages occurring by explosion and fire. The U.S. District Court for the Central District of California granted declaratory judgment for the insurer. The co-venturers appealed, and the Court of Appeal held that the "completed operations hazard" clause in the policy did not extend coverage to personal injuries and property damage sustained almost three years after expiration of policy's effective period.

STATE COURT OF APPEALS

Doheny Park Terrace Homeowners Association v. Truck Insurance Exchange, 132 Cal.App.4th 1076, 34 Cal.Rptr.3d 157 (2005)

Building Permit Consultants, Inc. v. Mazur, 122 Cal.App.4th 1400 (2004)

Jennings v. Palomar Pomerado Health Systems, Inc., 114 Cal.App.4th 1108 (2003)
Appellant developed a subcutaneous abdominal infection following a surgical procedure. Appellant filed a medical malpractice action against defendants hospital and doctors in which he claimed a cause of the infection was that defendants negligently left a retractor in his abdominal cavity after the surgery. The trial court struck the testimony of Appellant's expert on whom Appellant relied to show the retention of the retractor in his abdomen following surgery was a cause of the abdominal infection; it concluded the expert's opinion was based on speculation. On appeal, Appellant argued this ruling was error. The Appellate Court upheld the trial court's decision holding that the expert's opinion was not supported by a reasoned explanation illuminating the etiology connecting the infected subcutaneous tissue to the nidus inside the peritoneal cavity where the retractor was retained, and did not contain a reasoned explanation accounting for or reconciling his theory with the apparent lack of inflammation or infection along the theorized migratory route. The opinion was therefore deemed inadmissible under Evidence Code section 801 because it could not assist the jury to perform its role of determining whether it was more probable than not that the retention of the retractor in the peritoneal cavity of the abdomen contributed to the infection.

County of San Diego v. Ace Property & Casualty Insurance Company, et al., 103 Cal.App.4th 1335 (2002)
The C.A. 4th has ruled that an insurer is not required to reimburse a county for amounts it paid to settle groundwater contamination claims in accordance with a water quality control board remediation order. The county paid $577.3 million to two property owners adversely affected by the contamination arising out of a county-operated landfill. The county sought coverage from its insurer for the costs of complying with the order and reimbursement of the settlement costs. The C.A. 4th affirmed a trial court ruling that Ace Property & Casualty Insurance Company was not required to indemnify the county for these cases.

The C.A. 4th found the ACE policy contained no language indicating the indemnity duty extends to the settlement or satisfaction of non-litigated claims to which ACE does not consent. The court noted that the state Supreme Court in Certain Underwriters at Lloyd's of London v. Superior Court 24 Cal.App.4th 945 held that indemnity coverage includes not only injury to person or property as defined by the policy but also a money judgment or order rendered in a lawsuit. "We understand this result has harsh consequences for insureds, because by settling claims without the necessity of litigation, they ensure noncoverage," wrote Associate Justice Judith D. McConnell for the C.A. 4th panel. County of San Diego v. Ace Property & Casualty Insurance Company, et al., D038707, 2/19/03.

Haynes v. Farmers Insurance Exchange, 95 Cal.App.4th 588 (2002)
The insurer issued an automobile liability insurance policy that included coverage for permissive users, but restricted that coverage to "the limits of the Financial Responsibility Law only." The insured's vehicle, driven by a permissive driver, was involved in an accident in which a passenger in the vehicle was injured. The passenger brought an action against the insured and the permissive user. The trial court granted summary judgment for the insurer. However, pursuant to an agreement between one of the plaintiff's attorney and an attorney for the defendant, plaintiff's attorney filed a motion to dismiss the action with prejudice in exchange for the defendant's waiver of costs, but after further discussion, the plaintiff's attorney decided to proceed with an appeal of the trial court's decision. The Court of Appeal reversed, holding that a plaintiff cannot dismiss the case after it has proceeded to a determinative adjudication, and therefore the dismissal with prejudice was ineffective.

State Farm Fire & Casualty Company v. Majorino, 99 Cal.App.4th 974 (2002)
An insurer brought a declaratory relief action to determine its coverage obligation against its insureds and against third parties who were suing its insureds for assault. The third parties filed a special motion to strike under the anti-SLAPP-suit (strategic lawsuit against public participation) statute. The trial court denied the motion, and it subsequently ordered the action stayed pending resolution of the underlying suit. The Court of Appeal affirmed the order denying the special motion to strike. The court held that the third parties failed to carry their burden of showing that the declaratory relief action arose from an act in furtherance of their right of petition or free speech. The declaratory relief action arose from the insureds' tender of defense and the terms of an insurance policy issued well before the underlying suit commenced, not from the litigation process itself. The resolution of the insurer's coverage obligations would not impair the third parties' ability to pursue their claims against the insureds.

The Committee to Save the Beverly Highlands Home Association v. Beverly Highlands Home Association, 92 Cal.App.4th 1247 (2001)
A committee and individuals brought an action to challenge the dissolution of a non-profit mutual benefit corporation whose members were owners of buildable lots located within the same area. Plaintiffs sought to enjoin the alleged wrongful dissolution of the corporation, removal of its board of directors, declaratory and other relief. The trial court granted plaintiffs' summary judgment, finding that the area was a common interest development within the meaning of Civ. Code, § 1350 et seq., and that defendants failed to dissolve the corporation in accordance with those statutes. The Court of Appeal reversed, holding that the plaintiffs' cause of action for injunctive relief was not barred by laches, nor was plaintiffs' cause of action for injunctive relief barred under the doctrine of unclean hands. However, the trial court erred in granting plaintiffs summary judgment on the basis that defendants failed to dissolve the corporation in accordance with Civ. Code §1350 et seq. because those statutes did not apply since the area in question had no common area.

First Commercial Mortgage Company v. Reece, et al., 89 Cal.App.4th 731 (2001)
A lender brought an action against an appraiser and loan broker for fraud, negligent misrepresentation, and breach of contract, after it was compelled to repurchase property after foreclosure and a successful full credit bid by the mortgage company to which it initially sold the loan. The trial court granted defendants' motion for summary judgment finding that the plaintiff's claims were barred by the mortgage company's full credit bid. The Court of Appeal reversed, holding that the plaintiff's damages were a direct result of the fraud, and neither the repurchase nor the full credit bid precluded plaintiff from pursuing a fraud claim against the defendants, and that the full credit bid rule did not preclude a claim by plaintiff that it suffered damages as a consequence of defendant's breach of a written agreement between the parties that the loan broker would indemnify the plaintiff for any loans found to be fraudulent or not in compliance with industry underwriting requirements.

Hellinger v. Farmers Group, Inc., et al., 91 Cal.App.4th 1049 (2001)
An insured brought an action against his insurers for bad faith and breach of contract from defendant's denial of plaintiff's claim for damage under his earthquake insurance policy. The trial court granted summary adjudication for defendants finding that the plaintiff's action was time-barred by the one-year contractual limitations period in the policy. The Court of Appeal reversed, holding that Code Civ. Proc. §340.9, which revived claims arising out of this particular earthquake that had been barred by both contractual and statutory limitations periods, applied in this case and extended the deadline for presenting plaintiff's claims.

Home Savings of America v. Continental Insurance Company, 87 Cal.App.4th 835 (2001)
While his homeowner's all-risk policy was in force, the insured transferred title and moved out of the home so it could be demolished for redevelopment purposes. The insured then defaulted on the loan, and the mortgagee foreclosed. The mortgagee filed a claim against the policy because of the loss incurred from the demolition of the home. The insurer denied the claim and the mortgagee filed suit. The trial court entered a summary judgment for the insurer, finding the loss payable clause in the policy was not a standard loss payable clause protecting the mortgagee from defenses available against the named insured. The Court of Appeal reversed and remanded, holding that the loss payable clause in the policy was a standard loss payable clause, and therefore, a lienholder is not subject to the exclusions available to the insurer against the insured because an independent or separate contract of insurance exists between the lienholder and the insurer. When in doubt, a clause in a policy providing for payment of the proceeds to a mortgagee is construed as a standard mortgage clause rather than as a mere designation of a person to receive payment of a loss. Absent any evidence of complicity by the mortgagee, the policy is not avoided as to the mortgagee by the misconduct of the mortgagor. Whether the loss was caused by accident or willful act is determined from the point of view of the mortgagee, not the named insured.

Farmers Insurance Exchange v. Superior Court of San Bernardino County (Respondent); Dul Han (Real Party), 79 Cal.App.4th 1400 (2000)
Dul Han was injured in a single vehicle accident allegedly caused by a defective tire. Dul sued Farmers after it took possession of the car and tire, and thereafter lost or destroyed the vehicle. The trial court denied Farmers' motion of judgment on the pleadings. The Court of Appeal directed the trial court to set aside its order and to enter a new order granting the motion. The court held that since the California Supreme Court has determined that a party cannot be liable for intentionally destroying or suppressing evidence that would be relevant to a lawsuit, a party definitely cannot be held liable if it negligently commits these acts.

Barnes v. Black, 71 Cal.App.4th 1473 (1999)
Defendant, the owner of an apartment building, was granted summary judgment in a personal injury suit arising from the death of child struck by a vehicle when the tricycle he was riding veered off a private sidewalk to an adjacent steep driveway that led to a street. The Court of Appeal reversed, holding that the defendant failed to meet his burden to negate a duty of care as a matter of law. Specifically, no evidence was provided negating the allegations that the sidewalk, commonly used by children coming and going to the play area, situated at the top of a steep driveway leading to a busy street, without a fence or other barrier between the sidewalk and the driveway, created a dangerous condition that contributed to the injury. The absence of any law requiring fencing, and that fact that the instrumentality causing the injury was not in defendant's control, did not preclude the existence of a duty to keep the premises safe.

Erlich v. Menezes, 21 Cal.4th 543 (1999)
Homeowners filed an action against the contractor who built their new house for breach of contract, fraud, negligent misrepresentation, and negligent construction. Plaintiffs testified they suffered emotional distress as a result of the defective condition of the house and defendant's invasive and unsuccessful repair attempts. The jury found that defendant breached his construction contract by negligently constructing the house but was not guilty of fraud or negligent misrepresentation. The jury awarded plaintiffs the cost of repairs and damages for emotional distress. The Court of Appeal affirmed.

Adamson v. Superior County of San Diego County (Respondent), M.M. Bitker Number One, Inc. (Real Party), 113 Cal.App.3d 505 (1980)

Campbell v. Superior Court, 44 Cal.App.4th 1308 (1996)
Plaintiff sued Farmers Insurance Group based upon its failure to provide a defense to Plaintiff under a comprehensive general liability insurance policy. The trial court sustained without leave to amend Farmers' demurrer to a cause of action for breach of the implied covenant of good faith and fair dealing based solely on its unjustified failure to defend Plaintiff in an action against him by a homeowner. The Court of Appeal ordered the trial court to set aside the order and enter an order overruling the demurrer. The court held that if an insurer unreasonably fails to defend, it has breached the implied covenant of good faith and fair dealing. In determining whether the insurer's action has breached the implied covenant, the significance to the insured of the duty breached is considered, and one of the primary benefits of an insurance policy is that the insured can expect the insurer to defend against third party claims.

Cedars-Sinai Medical Center v. Superior Court, 43 Cal.App.4th 605 (1996)
The hospital filed a petition for writ of mandate requesting the Superior Court's order, granting plaintiff's motion for leave to amend their medical malpractice complaint to add punitive damages, be vacated. The Court of Appeal denied the petition, holding that the plaintiff's cause of action for intentional spoliation of evidence by knowingly and purposefully removing plaintiff's medical records was not subject to the statute governing inclusion of punitive damages in an action for professional negligence against a health care provider.

Farmers Insurance Exchange v. Knopp, 50 Cal.App.4th 1415 (1996)
Exclusion in automobile insurance policy barring liability coverage while vehicle was being "used" to carry persons or property for charge applied to entire process of carrying customer for charge, including request for service and dispatching of vehicle to pick up customer, physical transportation of customer, and vehicles returned to place of business or further dispatching to another site to accommodate subsequent transportation request; paying customers actual presence in vehicle at time of the accident was not required.

Lee v. Crusader Insurance Company, 49 Cal.App.4th 1750 (1996)
After being involved in a car accident with an uninsured motorist, the insured driver made a claim for uninsured motorist benefits under her insurance policy assigned to the insurer through the California Automobile Assigned Risk Plan (CAARP). The insurer disputed the claim, and arbitration was concluded in the insured's favor. The insured then file an action against the insurer for delaying the payment of the uninsured policy limits until judicially ordered to do so when liability had been clear. The trial court granted the insurer's motion for judgment on the pleadings, finding the insured failed to exhaust the administrative remedies under CAARP. The Court of Appeal reversed and remanded, holding that the mere availability of an arbitration procedure does not insulate an insurer from liability for bad faith in handling an uninsured motorist claim. Insurers have a duty of good faith and fair dealing in handling uninsured motorist claims, and that duty is not arbrogated by Insurance Code §11580.26(b).

Fire Insurance Exchange v. American States Insurance Company, 39 Cal.App.4th 653 (1995)
In an insurer's action against another insurer for equitable contribution arising from plaintiff's settlement of a personal injury action against an insured, the trial court ruled that defendant and plaintiff, who were both excess carriers, were co-insurers and shared equally in the excess cost of settling a personal injury action brought against their insureds. The Court of Appeal affirmed finding that even though the plaintiff's and defendant's policies each contained clauses precluding coverage when other insurance covered the same risk, the clauses cancelled each other, thereby nullifying their effect. And in the exercise of its equitable discretion, the trial court properly concluded that the umbrella policies should be equally prorated because the policy limits were the same and that a rule requiring a specific finding of each insured's comparative fault would hamper settlements and require the tortfeasor to prove its own fault before the tortfeasor's insurer could seek equitable contribution.

Hughes v. Mid-Century Insurance Company, 38 Cal.App.4th 1176 (1995)
Defendant appealed a portion of a trial court's judgment favoring Plaintiff on his third party complaint against Defendant for benefits under its liability insurance policy issued to Plaintiff's judgment debtor (Defendant's insured). The Court of Appeal reversed the portion of the judgment awarding Plaintiff's costs incurred in suing Defendant's insured as policy benefits. The court held that the insurer was not obligated to pay plaintiff costs beyond policy limits incurred by plaintiff in suing the insured, since the policy language involving supplementary cost payments unambiguously stated that defendant would pay all costs it incurred in defending or attempting to settle any suit against the insured, but not any costs incurred by plaintiff. Therefore, the language did not obligate defendant to pay plaintiff the court-awarded costs beyond the policy limits, and as a matter of law, the defendant did not wrongfully withhold payment of those costs.

In Re Executive Life Insurance Company, 32 Cal.App.4th 344 (1995)
In insolvency proceedings for Executive Life Insurance Company, the trial court approved the Insurance Commissioner's sale of the insurer's portfolio of high-risk junk bonds at auction as a block, the settlement of class 5 priority claims (including a settlement with claimants under certain post-1988 guaranteed investment contracts that were funding agreements), the method of valuing policyholder claims, the plans of distribution and rehabilitation, settlement agreements for payment of attorney fees of settling parties, and generally the commissioner's motions for approval of all professional fees. The trial court, did however, deny payment of interest on interim payments to one policyholder that was wrongfully denied during the proceedings. The Court of Appeal reversed the trial court's approval of the settlement with claimants under the post-1998 guaranteed investment contracts, and the denial of interest payments to the wrongfully denied policyholder, but affirmed the trial court's judgment in all other respects. In regards to the post-1988 guaranteed investment contracts, the court acknowledged that while the tangible benefits of near-global settlement and the benefit of avoiding expense and delay generally justify the settlements, any benefit from settling patently weak claims under post-1988 funding agreements was minimal. As to the wrongfully denied policy holder, the court held that the Insurance Commissioner has a duty to collect assets and distribute them ratably among claimants within the same priority, and that policyholders who have received interim payments had the benefit of the use of money, those wrongfully denied did not, therefore it is inequitable to deny interest to those denied payments.

Waller v. Truck Insurance Exchange, 11 Cal.4th 1 (1995)

Beaty v. Truck Insurance Exchange, 6 Cal.App.4th 1455 (1992)

Lee v. Trust Company Bank, 204 Ga.App.28, 418 (S.E.2d 670 (Ga.App. 1992)

Holland v. Sterling Casualty Insurance Company, 25 Cal.App.4th 1059 (1994)
In a bad faith action initiated by the plaintiffs against the defendant, the trial court held that the automobile insurance policy had been cancelled by the financial institution that supplied the premiums for the policy and that there was not policy in effect that would support the causes of action, even though the lender bank never mailed the five day pre-cancellation notice to the plaintiffs. The Court of Appeal affirmed, holding that Ins. Code §673 does not impose any additional notice requirements on the insurer, and specifically states that when the insurer relies on the confirmation of cancellation notice served by the lender, the insurer is relieved from complying with any other duty or form of cancellation required by the Insurance Code. The court further held that this negates any obligation on the insurer's part to send any further notice to the insured and that relief for the plaintiffs lay with the bank.

Triplett v. Farmers Insurance Exchange, 24 Cal.App.4th 1415 (1994)
Plaintiff recovered a jury verdict against Defendant's insured. After the verdict, the trial court ordered Defendant be added as an additional defendant and then sanctioned it for refusing to settle the case before trial. The Court of Appeal reversed, holding that the ability to amend a judgment to add a defendant requires that the new party be the alter ego of the old party and that the new party controlled the litigation, thereby having the opportunity to litigate. Furthermore, the court held that a trial court may not sanction a defendant's decision to insist on its constitutional right to a jury trial rather than settle a case, even if the failure to settle was motivated by ulterior, and allegedly improper purposes.

Handy v. First Interstate Bank of California, 13 Cal.App.4th 917 (1993)
Following a fire in a commercial building, several related corporate entities that were tenants or owners of the building were sued in lawsuits alleging personal injuries and property damage. The liability insurer of the corporate-owner provided a defense to the actions for the corporate-owner. The insurer also provided a defense, subject to a reservation of rights, to the tenant, which was the parent-corporation of the corporate-owner. After most of the suits were settled, the tenant sought reimbursement from both its insurer and the insurer of its subsidiary. Disputes arose regarding reimbursement and the tenant and parent-company filed a petition seeking an order to compel arbitration. The trial court granted the petition and ordered the entire dispute into arbitration. The tenant's insurer appealed. The court held that if the issues of an insurer's duty to defend or the existence of a conflict of interest are contested, these preliminary issues may not be decided in an arbitration ordered pursuant to Civ. Code §2860, but must be resolved by a trial court.

Truck v. Pozzuoli, et al., 17 Cal.App.4th 856 (1993)
Defendant insureds purchased a comprehensive liability policy from plaintiff to cover their car wash where they sold gasoline. The policy contained a standard pollution exclusion that excluded coverage for the discharge of contaminants unless the discharge was "sudden and accidental." The insureds discovered a gasoline leak, which the parties stipulated was of at least 60 days duration. The trail court determined that the word "sudden" was not ambiguous, that it had temporal meaning, and that a leak of at least 60 days duration was clearly not sudden under a reasonable interpretation of that term. The Court of Appeal affirmed.

Fagundes v. American International Adjustment Company, 2 Cal.App.4th 1310 (1992)
An insured motorist brought an action against his insurer to recover monies under his underinsured motorist policy. The trial court granted summary judgment for the insurer because the insured had already received monies from the other driver's insurance with the same limit. The Court of Appeal affirmed, holding that the California uninsured/underinsured motorist coverage is of the "offset" variety, in which the limit payable is reduced by all amounts received from other sources. Thus, underinsurance payments are not available unless the tortfeasor's liability policy is less than the uninsured motorist policy of the injured driver. As such, the underinsured motorist coverage did not come into effect because the tortfeasor had equal coverage.

Wilks v. Hom, 2 Cal.App.4th 1264 (1992)
In an action by multiple plaintiffs, including the mother of an injured minor, for wrongful death and personal injuries against the landlords of a residence where an explosion occurred, the jury awarded damages to the mother for emotional distress occasioned by the negligently caused injuries to her daughter. The Court of Appeal affirmed, holding that it is not necessary for a plaintiff bystander actually to have witnessed the infliction of injury to his or her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted injury to the child.

Winet v. Price, 4 Cal.App.4th 1159 (1992)
After a dispute arose between a client and an attorney over legal fees owed by the client, the parties executed a settlement agreement releasing all claims, known or unknown, and expressly waiving the provisions of Civ. Code section 1542. The client was later sued by his limited partners from a venture in which the attorney had provided legal services, and the client cross-complained for contribution and indemnity against the attorney, alleging malpractice. The trial court found the release signed under the settlement was broadly designed to bar all claims of malpractice, and therefore granted a summary judgment in favor of the attorney. The Court of Appeal affirmed, holding that the release, which contained an express intention to release all claims in three distrinct places, operated to release all claims against the attorney.

Battle v. Sandy Springs Association, 198 Ga.App. (1991)

Georgia Glass & Metal v. Arco Chemical Corp., 201 Ga.App. 15 (1991)

Warner v. Fire Insurance Exchange, 230 Cal.App.3d 1029 (1991)
The plaintiffs sought recovery of their pecuniary interests from an all-risk homeowner's policy issued by defendant to another insured (the sellers of the property). The trial court ruled the policy did not cover plaintiff's claims for damages for negligent misrepresentations made by the insured/sellers during the course of selling the property. The Court of Appeal affirmed, holding that the complaint failed to allege a loss of or damage to any property of the insured sellers, and that there was no coverage under the policy's third party coverage since it was limited to damage to "tangible property" of others, not pecuniary interests.

Byrum, et al. v. Brand, 219 Cal.App.3d 926 (1990)
A land investor brought an action of fraud, negligent misrepresentation, and breach of fiduciary duty, against a financial planner on whose recommendation plaintiff made an investment. The trial court entered a judgment on the jury's verdict for the defendant. The Court of Appeal reversed the judgment entered on a special verdict on the breach of fiduciary duty, but affirmed the remaining causes of action. In reversing the judgment regarding the breach of fiduciary duty, the Court of Appeal held that the special verdict form incorrectly required the jury to find that the defendant "intentionally" failed to disclose any material fact known by him which should have been disclosed because of the confidential relationship held with the plaintiff. The court reasoned that this requirement caused a greater evidentiary burden on the plaintiff than is required by existing law and likely served to prejudice the plaintiff's claim on the issue.

Mundy v. Mutual Protection Trust, 219 Cal.App.3d 127 (1990)
After plaintiff prevailed in a medical malpractice suit against a doctor, she brought a second suit against the physician's cooperative corporation and interindemnity arrangement, alleging bad-faith refusal to negotiate a settlement. The Superior Court found for the defendants. The Court of Appeal affirmed, holding that because plaintiff was not a party of the interindemnity agreement executed between the doctor and defendants, there was no theory of recovery for the plaintiff, and furthermore, the statutory scheme authorizing the creation of interindemnity arrangements between members of cooperative corporations does not authorize third-party action if the interindemnity arrangement or cooperative corporation fails to settle a claim.

Republic Indemnity v. Superior Court, 224 Cal.App.3d 492 (1990)
An insurer under workers' compensation and employers' liability policies petitioned for a writ of mandate to overturn a Superior Court order granting an insured's motion for summary adjudication of issues in an action for wrongful refusal to indemnify and defend. The Court of Appeal granted the writ in part and denied it in part, holding that the statute precluding indemnification of willful conduct did not absolve the insurer from its defense obligations.

Ceresino v. Fire Insurance Exchange, 215 Cal.App.3d 814 (1989)
An insured brought an action against his insurer seeking indemnification from a prior personal injury judgment against him. The trial court made a pre-trial ruling that he was collaterally estopped because a decision had already been made in the prior action that his policy did not provide coverage for the injuries at issue in that action. The Court of Appeal affirmed, holding that the insured was collaterally estopped because the suit was a bargained-for element of the settlement in the action between the injured party and the insured. The insured was a witness for the injured party, his attorney was present at the hearing, and resolution of the coverage issue was prerequisite to any settlement by the injured party under the settlement agreement. Therefore, collateral estoppel applies in order to discourage repetitive litigation, to prevent inconsistent judgments, and to discourage vexatious litigation.

Duffy v. Theatrical Electronics Corp., 193 Ga.App. 628 (1989)

Salas v. Nationwide Mutual Insurance Company, 254 Cal.Rptr. 900 (1989)
Plaintiffs brought action against the insurer for unreasonable delay in the settlement of a personal injury action brought against its insured. The Superior Court dismissed the action and the Court of Appeal affirmed, holding that the jury's finding of fault in a personal injury action brought against the insured, and later reversed because of certain erroneous evidentiary rulings, could not establish insured's liability in subsequent bad-faith action against the insurer for unreasonable delay in settlement of personal injury claim. It also held that a stipulated judgment entered into by plaintiff and insured, in an underlying personal injury action without consent of the insurer, did not constitute conclusive judicial determination of insured's liability for purposes of plaintiff's third-party bad-faith action against insurer.

Atlanta Fire Systems v. Alexander Underwriters Ge. Agency, 195 Ga.App. 394 (1988)

Burton v. Key Capital, 185 Ga.App. 394 (1987)

Parlen v. Golden State Sanwa Bank, 194 Cal.App.3d. 906 (1987)
Plaintiff appealed a trial court's decision to dismiss her motion to specially set the case for trial because of her lack of prosecution. Plaintiff initially filed her complaint on January 14, 1981, which was ultimately answered by defendant after they were added as defendants to an amended complaint filed on February 18, 1982. Two additional filings took place between Plaintiff and Defendant during May and June of 1982, but then nothing again until November 6, 1985 when Plaintiff filed a motion to specially set the case for trial to avoid the five year limitation period for bringing actions to trial under CCP §583.310. The trial court denied Plaintiff's motion based on her lack of diligence in bringing the action sooner. The Court of Appeal affirmed the decision, holding that a trial court does not have a mandatory duty to set a preferential trial date, even when the five-year deadline approaches. Rather, it must look at the total picture such as the condition of the court calendar, the dilatory conduct by the plaintiff, any prejudice to the defendant from an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied.

Smith v. National Bank of Georgia, 182 Ga.App. 55 (1987)

Ehlers v. Schwall & Heuette, 177 Ga.App. 548 (1986)

Farmers v. Argenta, 174 Ga.App. 682 (1985)

UNITED STATES DISTRICT COURTS

T&E Pastorino Nursery v. Duke Energy Trading & Marketing, 268 F.Supp.2d 1240 (S.D.Cal.2003)
In a consolidated case, customers sued electricity suppliers in state court for alleged unfair business practices in state's wholesale energy market pursuant to California law. Suppliers removed actions, and customers moved for remand. The District Court held that: (1) federal courts had exclusive jurisdiction over any claims involving violations of tariffs filed by independent system operator (ISO) that operated electricity grid under California's restructured energy scheme; (2) claims came within provision of Federal Power Act (FPA) granting federal courts exclusive jurisdiction over violations of FPA and associated rules, regulations, and orders, and were subject to removal; (3) claims were not preempted by FPA; (4) removal jurisdiction did not exist on grounds that claim was necessarily federal in character; and (5) removal jurisdiction could not be based on substantial federal question exception to well-pleaded complaint rule.
Motion to Remand denied.

Harless v. CSX Hotels, Inc., 265 F.Supp.2d 640 (S.D.W.Va. 2003)

In Re California Wholesale Electricity Antitrust Litigation, 244 F.Supp.2d 1072 (S.D.Cal. 2003)
California buyers of wholesale electricity sued sellers of wholesale electricity seeking monetary and injunctive relief from artifically high rates. Sellers moved to dismiss. The District Court held that: (1) filed rate doctrine precluded suit, as it would involve impermissible review of rates filed with the Federal Energy Regulatory Commission (FERC), and (2) federal law pre-empted action resulting in the dismissal of the case. Recently, an appeal was filed by the Plaintiff to the Ninth Circuit Court of Appeals.

Willets v. Interstate Hotels, 204 F.Supp.2d 1334 (M.D.Fla. 2003)

Arnold, et al. v. CSX Hotels, Inc., 212 F.Supp.2d 634 (S.D.W.V., 2002)

Gordon v. Reliant Energy, Inc., 141 F.Supp.2d 1041 (S.D. Cal. 2001)
A group of lawsuits was originally brought by individual purchasers of electricity as class actions in state court against generators and traders of wholesale electricity in the State of California seeking relief for alleged manipulation of the California electricity markets resulting in artificially high rates. Following removal to Federal District Court, the Court held that: (1) recusal of a judge, who himself was a customer of one of the Defendants, was warranted, and (2) recusal was warranted in action against same Defendants by municipal water districts.

Conner v. Colony Lake Lure Resort, 1997 WL 816511 (W.D.N.C., 1997)

Galdauckus v. Interstate Hotels Corp., 901 F.Supp. 454 (D. Mass. 1995)

Storch v. Beacon Hotel Corp., 788 F.Supp. 960 (E.D Mich., 1992)

Days Inn Management Co. v. N.L.R.B., 930 F.2d 211 (2d Cir. 1991)