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Insurance Law

[09/02] Travelers Prop. Cas. Ins. Co. of Am. v. Nat'l. Union Ins. Co.
In an action by one insurer against another seeking $10 million in subrogation proceeds, summary judgment for defendants is affirmed in part where plaintiff waived certain rights by refusing repeated invitations to participate in subrogation discussions. However, the judgment is reversed in part where, as the excess insurer, plaintiff was entitled to a priority interest in the subrogation proceeds representing insured losses.

[09/01] Sprinkles v. Associated Indem. Corp.
In plaintiffs' bad faith action against Fireman's Fund Insurance Company, arising from an underlying suit against defendant and his employer for causing the death of plaintiffs' father in an automobile accident, trial court's judgment sustaining the insurer's demurrer is affirmed as, under the complaint and matters judicially noticed, the defendant-employee was an insured, rendering the automobile exclusion in the GCL policy applicable, and Fireman's Fund had no duty to defend the employer.

[08/31] Hayes Lemmerz Int'l, Inc. v. ACE Am. Ins. Co.
In an employer's suit against its insurer for refusing to tender defense in an underlying suit under its workers' compensation and employer liability policy, judgment of the district court in favor of the insurer is affirmed as, because defendant was, by virtue of Indiana law, a joint employer, insurer was contractually obligated to reimburse the reasonable expense of defendant's getting itself dismissed from the tort suit. However, because the defendant is not claiming that insurer refused to pay that amount, but rather, it is complaining that the insurer breached its duty to defend by failing to advise defendant that it's law firm was not defending the suit properly, the insurer had no duty to provide its insured's lawyers with legal advice.

[08/30] Uhm v. Humana, Inc.
In an action against an insurer for nonpayment of Medicare benefits, the dismissal of the action is affirmed where 1) the district court lacked jurisdiction to consider plaintiffs' breach of contract and unjust enrichment claims because they were not properly exhausted under the Medicare Prescription Drug Improvement and Modernization Act; and 2) plaintiffs' fraud and consumer protection act claims, while not subject to the Act’s exhaustion provisions, were expressly preempted.

[08/30] Vill. Northridge Homeowners Ass'n v. State Farm Fire & Cas. Co.
In homeowners association's suit against an insurance company, claiming that the insurer fraudulently induced it to settle a Northridge earthquake-related claim for less than it was worth under the policy, judgment of the court of appeals is reversed as a release of a disputed claim does not permit a party to elect the remedy of a suit for damages when the release itself bars that option. Instead, the insured party to the release must follow the rules governing rescission of the release before suing the insurer for damages.

[08/30] First Nat'l Bank & Trust Co. v. Stonebridge Life Ins. Co.
In an action by the administrator of the estate of a murder victim, seeking the policy proceeds of a policy in the victim's name obtained by the perpetrator, judgment for plaintiff is affirmed in part where, because the victim had an interest in the policy, payment to her estate was authorized due to the perpetrator's disqualification. However, the judgment is reversed in part where, absent its presence in the case, plaintiff was still required to establish the perpetrator's disqualification in order to recover other insurance policy proceeds.

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Health Law

[08/31] Florida Dep't of State v. Mangat
Judgment of the circuit court, finding that the ballot summary for Amendment 9, for creating a new section related to health care services in article I of the Florida Constitution, does not meet the requirements of section 101.161 and therefore may not be included on the November 2010 ballot is affirmed as, the ballot language put forth by the party proposing the constitutional amendment contains misleading and ambiguous language and the only recourse is to strike the proposed amendment from the ballot.

[08/31] Jones v. Astrue
In plaintiff's appeal from the district court's judgment upholding the Commissioner of Social Security's denial of her application for disability insurance benefits and supplemental security income, the order is affirmed where: 1) the ALJ had no need to contact plaintiff's treating physician because there was no ambiguity to resolve in her report, and the report contained all the necessary information, including the results of diagnostic testing; 2) the ALJ appropriately considered plaintiff's subjective complaints of pain under Polaski; and 3) substantial evidence on the record as a whole supported the ALJ's decision.

[08/30] Luo v. Mikel
In an action alleging serious injury sustained during an automobile accident within the meaning of New York Insurance Law section 5102(d), summary judgment for defendants is affirmed in part where the district court's exercise of jurisdiction was proper. However, the order is vacated in part where, taken together with plaintiff's subjective evidence as to the impact of the injury on her functioning, plaintiff's medical evidence was sufficient to raise a question of fact issue as to serious injury pursuant to N.Y. Ins. Law section 5104(a).

[08/30] In re R.R.
In dependency proceedings, juvenile court's order declaring petitioner-father's daughter a person described by Welfare and Institutions Code section 300(b) based on the father's past and current drug use, is affirmed where: 1) the juvenile court did not err in denying father's motion to quash subpoena of his hospitalization; 2) any error in not hearing the motion to quash was harmless because as a matter of substantive law the motion would have been denied as father's hospital records were admissible; 3) father's claim that his right to privacy was violated by dissemination of his medical records is rejected; 4) substantial evidence supported the finding that the daughter was a person described by section 300; and 5) juvenile court did not abuse its discretion by ordering monitored visits.

[08/27] County of Butte v. California Emergency Med. Serv. Auth., Inc.
In a county's suit against the Emergency Medical Services Authority (Authority), seeking declaratory relief and a writ of mandate, arising from the county's designation of a local EMS agency to administer some of the requirements of the EMS Act, while reserving for another local agency all of the remaining statutory powers and duties not covered by the agreement, trial court's grant of Authority's motion for summary judgment is affirmed where: 1) the plain language of the EMS Act precluded Butte County from creating a bifurcated local agency system; 2) the Authority has the statutory authority to review a local EMS agency's creation of an exclusive operating area (EOA) as part of the transportation portion of the local EMS plan, regardless of whether the EOA was created through a competitive process or grandfathering, and then to reject the local EMS plan if it is not "concordant and consistent with applicable guidelines or regulations, or both the guidelines and regulations, established by the Authority"; 3) the Authority's interpretation of the "manner and scope" language of section 1797.224 is a generally applicable policy subject to the rulemaking procedures of the APA, and because the Authority did not comply with those procedures, this interpretative regulation is void and not entitled to any deference; and 4) the fact that the Authority relied on an invalid regulation in rejecting the EOAs does not require reversal as the Authority did not abuse its discretion by rejecting the designation of EOAs based on lack of information provided by Nor-Cal EMS.

[08/27] In re Columbia Valley Healthcare Sys. , LP
In plaintiffs' medical malpractice suit, defendant's petition for a writ of mandamus, challenging the trial court's denial of defendant's motion to disqualify plaintiffs' counsel because of its employment of a legal assistant, is conditionally granted as, because the legal assistant's employer did not take effective reasonable steps to shield the assistant from working on this case, and the assistant actually worked on the case at her employer's directive, disqualification is required and the trial court is directed to grant the defendant's motion to disqualify and recuse plaintiffs' counsel.

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Elder Law

[08/30] HCM Healthcare, Inc. v. California Ins. Guarantee Ass'n
In a residential nursing facility's suit against California Insurance Guarantee Association (CIGA) for breach of contract and for violating the Insurance Code for refusing to provide plaintiffs with defense counsel and indemnification for underlying lawsuits for elder abuse, judgment in favor of defendant is affirmed where: 1) as a creature of statute, and not of contract, in some instances CIGA may not be responsible for an insured loss to the same extent as the insolvent insurer might be under the terms of its insurance contract; and 2) Pennsylvania's liquidation order imposed a June 30, 2005 deadline for filing against an insurer and because plaintiff did not meet the deadline, CIGA may not honor their claims.

[08/09] Clark v. Superior Court
In senior citizens' suit against an insurance company, claiming deceptive business practices relating to the purchase and sale of annuity contracts, and claiming that statutory law entitled them to a trebling of the award, court of appeal's grant of plaintiffs' petition for a writ of mandate directing the trial court to enter a new order denying defendant's motion for judgment on the pleadings is reversed as, because Civil Code section 3345 authorizes the trebling of a remedy only when it is in the nature of a penalty, and because restitution under the unfair competition law is not a penalty, an award of restitution under the unfair competition law is not subject to section 2234's trebling provision.

[07/12] Das v. Bank of Am. N.A.
In a daughter's suit for elder abuse against Bank of America, claiming that the bank failed to report financial abuse involving her father and engaged in other misconduct, including predatory lending, trial court's dismissal of the complaint is affirmed where: 1) as section 15610.30(b)'s 2008 amendments to the statutory scheme were substantive, rather than procedural, and the Legislature did not state that the amendments were retroactive in effect, they are inapplicable to plaintiff's claims; 2) plaintiff's allegations regarding defendant's failure to comply with the statutory reporting duty state no claim against defendant; 3) the demurrers to plaintiff's remaining claims were properly sustained; and 4) there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.

[05/06] FAL-Meridian, Inc. v. US Dep't of Health & Human Serv.
A nursing home's petition to set aside a final decision by the Department of Health and Human Services, that imposed a civil penalty of $7,100 for having violated a regulation under the Medicare and Medicaid provisions of the Social Security Act, is denied as the nursing home failed to tender evidence that would show that it had done everything possible to minimize the risk of an accident to the deceased resident.

[02/05] Villano v. Waterman Convalescent Hosp., Inc.
In plaintiff's action against a convalescent hospital claiming she was admitted without her consent, judgment of the trial court is affirmed where, although a stipulated judgment is appealable, plaintiff cannot show that allegedly erroneous rulings were prejudicial.

[12/22] Massey v. Mercy Med. Center Redding
In plaintiff's negligence action against a nurse and the hospital that employed the nurse alleging that he sustained injury after falling from a walker because the nurse placed the plaintiff on the walker and left him unattended, judgment of the trial court is reversed in part where: 1) the question of nurse's alleged negligence for the fall poses a question of common knowledge, and therefore does not require expert opinion testimony; and 2) trial court's judgment that denied plaintiff's attempt to amend his complaint to add causes of action for battery, fraud and elder abuse is affirmed.

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