California Court Rejects Excess Insurer’s Contribution Action, Holding That Indemnity Requires Proof Of Actual Coverage And Finding That Vertical Exhaustion Barred Claim

Contribution actions between insurers sometimes blur the distinct and different requirements for proving the duty to defend versus the duty to indemnify.  In the recent case of Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 6 Cal.App.5th 443 (2016), the Sixth District of the California Court of Appeal issued a reminder that it is significantly more difficult to obtain contribution for indemnity than it is for defense.

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The Notice-Prejudice Rule In California: Is It A Fundamental Public Policy?

On January 13, 2017, the Ninth Circuit certified the following two questions to the California Supreme Court:

1.   Is California’s common law notice-prejudice rule a fundamental public policy for the purposes of choice-of-law analysis?


2.   If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can a consent provision in a first-party claim insurance policy be interpreted as a notice provision such that the notice-prejudice rule applies?

(Pitzer College v. Indian Harbor Insurance Company (Jan. 13, 2017) 2017 WL128563 * 1.)

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Court Of Appeal Extends “Continuous And Progressive” Trigger Of Coverage To Find A Duty To Defend A Fire Damage Claim

Commercial general liability policies commonly cover liability for damages “because of” bodily injury or property damage that happens during the policy period.  A key is that the coverage does not extend to liability “for,” “due to” or “resulting from” property damage.  Rather, the coverage is for liability because of property damage or bodily injury that takes place while the policy is in effect.

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