James P. Wagoner

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Jim Wagoner

James P. Wagoner


Mr. Wagoner has been with McCormick, Barstow since 1974.  He is statewide coverage counsel for numerous insurers and risk financing entities for both litigation and non-litigation services and practices in all the state and federal trial and appellate courts in California.

Jim Wagoner - Fresno Law Firm

With the able assistance of other members of the department, Mr. Wagoner has handled numerous very large and complex cases involving claims in the hundreds of millions of dollars, some of which involved thousands of parties.  He has also tried numerous coverage and bad faith cases in a variety of forums and has received two $13 million plus verdicts in favor of his clients.

Mr. Wagoner is certified as a specialist in Appellate Law by the State Bar of California Board of Legal Specialization.  In his appellate practice, he has handled numerous matters before the California Supreme Court and both the State and Federal Courts of Appeal. Prior to joining McCormick Barstow, Mr. Wagoner was a law clerk for the Honorable George A. Brown, Presiding Justice of the Fifth District Court of Appeal.

Juris Doctor, 1973 (with honors)
Santa Clara University School of Law

Bachelor of Arts, 1970
St. Mary’s College of California

Concentrating on Insurance Coverage and Insurance Litigation, including disputes between insurers and bad faith actions, and also Appeals in all types of Civil Litigation.

Mr. Wagoner has handled matters involving all types of insurance including casualty insurance (both first party and third party), errors and omissions insurance, professional liability insurance, EPLI insurance, Workers Compensation and Employer’s Liability insurance, D & O insurance, reinsurance, excess insurance, life, health and disability insurance (including ERISA claims), title insurance, cyber insurance, crop insurance, product recall insurance and many other types.

Mr. Wagoner is a member and former Director (1987-1990, 2001-2005) of the Association of Defense Counsel of Northern California and Nevada, and is also a member of the State Bar of California, the American Bar Association, the Defense Research Institute, and is a Fellow in the American College of Coverage Counsel.

Publications and Lectures

Mr. Wagoner is a frequent speaker and author and has also been retained numerous times as an expert witness. He was formerly a member of the Advisory Board of Trials Digest and was a Consulting Editor for California Liability Insurance Practice, Claims and Litigation (CEB, 1991).

Honors and Awards

Mr. Wagoner is AV® Preeminent™ Peer Review Rated with Martindale-Hubbell.  He has been selected for inclusion in the Northern California Super Lawyers list every year since the publication started in 2005, and in both 2012 and 2013 and also in 2019, 2020, 2021 and 2022 was named as one of the Top 100 Super Lawyers in Northern California, the only lawyer specializing in Insurance Coverage ever so named. In 2022, Mr. Wagoner was also nominated to the Top 100 attorneys for Northern California by San Francisco Magazine and was named by American Registry as one of America’s Most Honored Lawyers – Top 10%. Mr. Wagoner was also selected as one of AIG’s Top Ten Lawyers for 2008. In 2013, the American Society of Legal Advocates named Mr. Wagoner one of the Top 100 Lawyers in the State of California for his primary practice area of insurance coverage.  In 2018, Mr. Wagoner was elected as a Fellow in the American College of Coverage Counsel.

Reported Cases

California Supreme Court

Jonathan Neil & Assoc., Inc. v. Jones, (2004) 33 Cal.4th 917, 94 P.3d 1055, 16 Cal. Rptr. 3d 849. Tort remedies for insurer’s breach of implied covenant of good faith and fair dealing in retroactively overcharging premium knowingly are unnecessary to protect insureds’ interests.

Utility Cost Management v. Indian Wells Valley Water District (2001) 26 Cal.4th 1185; 114 Cal.Rptr.2d 459, 36 P.2d 2. The 120 day statute of limitations applied to an action by a public agency to recover amounts paid to a public utility for capital improvements.

Blue Ridge Ins. Co. v. Jacobsen (2001) 25 Cal.4th 489; 22 P.3d 313; 106 Cal. Rptr. 2d 535. An insurer may unilaterally settle under a reservation of rights and recover settlement payments made when the underlying claims are not covered under its policy.

McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 245 Cal.Rptr. 774, 751 P.2d. 1329. Secrecy of grand jury proceedings supported trial court’s order striking disclosure of raw evidentiary materials which it considered.

Producer’s Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903; 718 P.2d 920; 226 Cal. Rptr. 558. Employer’s liability coverage only applies when actual employment relationship exists and does not insure liability to employee of affiliated corporations which are named insureds on the same policy.

Nipper v. California Auto Assigned Risk Plan (1977) 19 Cal.3d 35; 560 P.2d 743; 136 Cal. Rptr. 854. Assigned risk plan not liable for issuing policy to incompetent driver resulting in accident; broker not liable for procuring insurance resulting in accident.

California Court of Appeal

San Luis Obispo Local Agency Formation Commission v. Central Coast Development Company (2022) 74 Cal.App.5th 863. Neither an applicant nor a Local Agency Formation Commission is entitled to recover attorneys fees based on a contract which was entered into beyond the authority of a Local Agency Formation Commission.

San Luis Obispo Local Agency Formation Commission v. City of Pismo Beach (2021) 61 Cal.App.5th 595. Local Agency Formation Commission did not have implied authority under the Cortese-Knox-Hertzberg Act to require that applicants for annexations or other “changes of organization or reorganization” within the jurisdiction of LAFCOs agree, as a condition to a determination of the application, to indemnify for the LAFCOs’ cost of a legal challenge to the application’s determination.

Humboldt Waste Management Authority v. Griffin Dewatering Corporation (2021) 2021 WL 717031. Determination by court that contractor was not liable to injured plaintiff bars equitable indemnity cross-complaint by co-defendant.

Humboldt Waste Management Authority v. GHD, Inc. (2021) 2021 WL 2349361. Equitable indemnity claim is “wholly derivative” and subject to whatever immunities or other limitations on liability which would otherwise be available against the injured party.

Rio Mesa Holdings, LLC v. Fidelity National Title Insurance Company (2019) 2019 WL 4639103. In bad faith action under title policy, collateral estoppel applied based on findings reached in prior action against insured.

Heflebower v. Beard (2019) 2019 WL 2427489. Findings of fact based on special verdict insufficient to support trial court’s conclusion that the defense of assumption of risk is applicable.

Roe v. Halbig (2018) 29 Cal.App.5th 286; 240 Cal.Rptr.3d. 104. Attorneys fees recoverable on successful motion to quash subpoena to disclose identity of anonymous internet user despite “dismissal” of subpoena prior to hearing.

Brown v. Superior Court (2018) 19 Cal.App.5th 1208; 228 Cal.Rptr.3d 687. Action by partial assignee of 1,117 borrowers seeking to enjoin foreclosure required joinder of partial assignors; C.C.P. section 369 did not apply to assignments where the plaintiff obtained only a partial interest in the outcome of the litigation and partial assignors still had an interest in the outcome.

Swinerton Builders v. Fresno Plumbing & Heating (2018) 2018 WL 3640722. Indemnity agreement enforceable against non-negligent subcontractor.

Mercury v. Chartis Property Casualty Company (2018) 2018 WL 739755. Insurance Code section 11580.9(d) applied to require excess insurer to pay before insurer of permissive user covered under primary auto policy extending coverage to “non-owned” autos on an excess basis.

Kamciyan v. City of Fresno (2017) WL 443658.  Discretionary dismissal for failure to prosecute must be without prejudice absent implied finding of inexcusable delay.

National Union v. Tokio Marine (2015) 233 Cal.App.4th 1348.  Party seeking indemnity not restricted to theories of liability adopted by underlying Plaintiff’s expert witness.

Lexington Ins. Co. v. WCAB (2015) WL 9008035.  Employee of independent contractor hauling exclusively for latex paint manufacturer considered employee of manufacturer who exercised substantial control over driver, including hiring, training and supervising.

Costco Wholesale Corp. v. Tokio Marine and Nichido Fire Insurance Company (2015) WL 6470956.  Additional insured endorsement issued by broker declaring Costco to be an additional insured not binding on insurer where broker did not have either actual or ostensible authority of insurer to do so.

American Home v. 99 Cents Stores (2015) 2015 WL 3563133. Worker’s Compensation Insurer’s declaratory relief action seeking to confirm validity of rescission did not require joinder of injured workers or pursuant claims for reimbursement against them in order to proceed against insured and other alleged employers.

Employers Ins. Co. v. Rick Concrete Constr. (2013) 2013 Cal.App. Unpub. LEXIS 1915.  Concrete pumper truck deemed an “auto” and not “mobile equipment”; accident which occurred when one of truck’s outriggers placed on uncompacted soil suddenly punched through the soil causing boom to fall on workers arose out of “use” of truck consisting of its parking and thus the “operations” exclusion in auto policy did not apply.

Sedlar v. USAA Casualty Ins. Co. (2012) 2012 Cal.App. Unpub. LEXIS 3226.  Insurer filing subrogation action had no duty to name insured party as plaintiff and was not liable for bad faith or negligence in failing to do so or in stipulating to a judgment in favor of third party defendant; nor was insurer for liable for negligent spoliation of evidence in misplacing allegedly defective product which caused fire loss.

2156 Stratford Circle v. AIG, Inc. (2012) 2012 Cal.App. Unpub. LEXIS 109. Complaint seeking to impose liability against AIG on theories of alter-ego, conspiracy, aiding and abetting, joint venture, statutory violations, fraud, interference with insurance contract, intentional infliction of emotional distress, breach of fiduciary duty and also against individual executives of AIG entities properly dismissed following demurrer for failure to state facts sufficient to constitute a cause of action.

American Internat. Underwriters Ins. Co. v. American Guarantee & Liability Ins. Co. (2010) 181 Cal.App.4th 616; 105 Cal.Rptr.3d 616.  Phrase “hired auto” does not include subhauler’s vehicles not in possession of insured.

Lexington Ins. Co. v. Pyramid Builders, Inc. (2010) 2010 Cal.App. Unpub. LEXIS 7632.  In contribution action by subcontractor’s insurer, who had accepted defense of general contractor under additional insured endorsement, settled action, and sued general contractor’s insurer, cross-complaint by general contractor’s insurer against two subcontractors and their insurers for prospective subrogation, contribution and indemnity by way of declaratory relief stated viable causes of action.

Henderson Receivables Origination LLC, v. Lisa Ramos (2009) 172 Cal.App.4th 305; 91 Cal.Rptr.3d 305. Trial court lacked authority to void a structured transfer payment previously approved by a trial court, and absent direct and affirmative evidence of fraud, such a prior court-approved transfer cannot be attacked as void under California Insurance Code §§ 10139.5, subdivision (f) or 10137.

Davis V. First Health Group Corporation (2009) 2009 WL 4172776. Applicability of doctrine of “fair procedure” requiring hearing be before delisting of chiropractor must be established by evidence of defendant’s market share.

Federated Mut. Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh (2007) Cal.App. Unpub. 2007 WL 2028593. Obligations arising under additional insured endorsement required by contract between parties considered independent of parties rights of indemnification under same contract.

American Internat. Specialty Lines Ins. Co. v. Continental Casualty Ins. Co. (2006) 142 Cal.App.4th 1342; 40 Cal.Rptr.3d 1. Settlement by insurer prior to notice to second insurer bars claim for contribution; insured’s knowledge of circumstance that could lead to claim bars coverage under errors and omissions policy.

Jonathan Neil & Associates, Inc. v. Jones (2006) 138 Cal.App.4th 1481; 42 Cal.Rptr.3d 350. A renewal of judgment is not an appealable order where renewal does not create a new judgment or modify the underlying judgment but merely extends the enforceability of the underlying judgment; renewal is vacated by operation of law upon issuance of remittitur.

Englert v. Sierra Foothills Pub. Util. Dist. (2006) 2006 Cal.App. Unpub. LEXIS 2961. Exclusion of newly discovered evidence proper in absence of amendment to cross-complaint or answer alleging such evidence.

American Int’l Specialty Lines Ins. Co. v. Westchester Fire Ins. Co. (2005) 2005 Cal.App. Unpub. LEXIS 4694. Prior determination of absence of right of contribution does not bar plaintiff insurer from seeking contribution from a third insurer despite similarity of policy language.

AIU Ins. Co. v. Clarendon America Ins. Co. (2005) 2005 Cal. App. Unpub. LEXIS 2285. Insurer entitled to contribution from subcontractor’s insurer where “personal injury” consisting of disparaging remarks about employee’s job performance “arose out of” subcontractor’s work.

Commerce & Indus. Ins. Co. v. Scottsdale Indem. Co. (2004) 2004 Cal.App. Unpub. Lexis 2141. Insurance Code § 11580.9 held applicable to establish that insurer of trailer owner was excess to insurer of tractor owner.

Essex Ins. Co. v. Lexington Ins. Co. (2003) 2003 Cal.App. Unpub. LEXIS 4102. Accepted statutory offer of settlement in prior action where complaint alleged claims by one insurer against another for both present and future defense and indemnification bars subsequent action for contribution for later incurred defense cost and settlement payments.

Southgate Recreation and Park Dist. v. California Assn. for Park and Recreation Ins. (2003) 106 Cal.App.4th 293; 130 Cal. Rptr. 2d 728. Trial court did not err in granting summary judgment to a risk-pooling authority because it had no duty to defend or indemnify a park district against lawsuits filed by unpaid subcontractors on the district’s golf course construction project.

St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234; 4 Cal. Rptr. 3d 416. Subcontractor’s policy deemed primary to crane company’s policy to the extent settlement included payment for plaintiff’s economic damages attributable to subcontractor’s fault.

Vitton Construction Co., Inc. v. Pacific Ins. Co. (2003) 110 Cal.App.4th 762; 2 Cal. Rptr. 3d 1. Liability of general contractor for injury to employee failing through hole in roof covered under policy of subcontractor which created hole, even if work of subcontractor was not negligent.

Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017; 123 Cal. Rptr. 2d 256. Excess insurers providing general liability coverage to a business were responsible for the defense and settlement costs of a suit filed against the insured who made disparaging remarks about a competitor’s business.

Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346; 115 Cal.Rptr.2d 503. Negligence suit barred by the Worker’s Compensation law exclusive remedy clause because off-duty employee’s actions were taken in furtherance of her employer’s business and were reasonably expected by her employer.

Fireman’s Fund Ins. Cos. v. Atlantic Richfield Co. (2001) 94 Cal.App.4th 842; 115 Cal. Rptr. 2d 26. Additional insured endorsement applied to liability of premises owner for injury to contractor’s employee.

Melton v. Industrial Indemnity Co. (2001) 103 Cal. Rptr. 2d 222. Employer’s retaliatory discharge liability was covered by workers’ compensation insurance and was not precluded by “accident” limitation or public policy; insurer was estopped from arguing that employer’s liability was not covered by its policy.

Milton v. Perceptual Development Corporation (1997) 53 Cal.App.4th 861; 62 Cal. Rptr. 2d 98. Default judgment could not stand where substantial evidence showed clients were not responsible for default because lawyer’s negligence was a cause in fact of default.

Ramirez v. St. Paul Fire & Marine Ins. Co. (1995) 35 Cal.App.4th 473; 41 Cal. Rptr. 2d 416. In bad faith action where judgment reversed on appeal, trial court lacked authority to grant motion to tax costs where appellate court’s remittitur provided only that appellant was entitled to its costs; only reviewing court was empowered to depart from usual rule for awarding costs.

Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247; 29 Cal. Rptr. 2d 144. A binding settlement agreement between corporation and insurance companies executed within five years from the commencement of the lawsuit rendered the mandatory dismissal statute legally irrelevant.

Cutler-Orosi Unified School Dist. v. Tulare County School etc. Authority (1994) 31 Cal.App.4th 617; 37 Cal. Rptr. 2d 106. Where damages were not available under the Voting Rights Act, insurance coverage provided by an insurer did not require it to provide school districts with a defense.

Ramirez v. State Farm Mut. Auto. Ins. Co. (1993) 21 Cal. Rptr. 2d 42. Policy language excluding coverage for non-owned vehicle unambiguous; consequently, there was no coverage and thus no bad faith on account of insurer’s denial of coverage.

Hartford Accident & Indemnity Co. v. Sequoia Ins. Co. (1989) 211 Cal.App.3d 1285; 260 Cal. Rptr. 190. For a policy to be deemed primary, it must be one in which the motor vehicle was described or rated as an owned automobile. Thus, excess policy was deemed excess to primary policy affording coverage for non-owned autos; and excess policy shared loss on pro rata basis with second excess policy covering driver.

Safeco Ins. Co. v. Gibson (1989) 211 Cal.App.3d 176; 259 Cal. Rptr. 206. Insurer did not have duty to defend ex-husband in a wrongful death action by ex-wife for death of couple’s son based on family member exclusion clause because son temporarily resided with ex-husband on the day of accidental death, even though custody changed weekly and ex-wife had custody of son for majority of time.

Western Carriers Ins. Exchange v. Pacific Ins. Co. (1989) 211 Cal.App.3d 112; 259 Cal. Rptr. 36. Company that loaned trailers to insured for valuable consideration was in business of leasing commercial vehicles for purposes of California Insurance Code § 11580.9(b); therefore, insurer of lessee was required to be considered primary insurer.

California State Auto. Assn. Inter-Ins. Bureau v. Carter (1985) 164 Cal.App.3d 257; 210 Cal. Rptr. 140. An insured could not collect punitive damages from her own insurer under the uninsured motorist coverage of automobile liability policy, although such damages would have been recoverable from intoxicated uninsured motorist.

Fireman’s Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988; 216 Cal. Rptr. 796. Determination of obligation to indemnify insured City for judgment is to be based on jury instructions and verdict, not on legal theories which could have been asserted based on evidence introduced but which were not in fact asserted.

Durbin v. Fletcher (1985) 165 Cal.App.3d 334; 211 Cal.Rptr. 483. In action for injuries arising out of a car accident, summary judgment proper where the last prior’s owner’s notice of sale was mailed to the DMV not more than five days after the sale.

Pacific Indem. Co. v. Transport Indem. Co. (1978) 81 Cal.App.3d 649; 146 Cal.Rptr. 648. Injury to employee exclusion inapplicable to entity which was not direct employer; in contribution action, PUC endorsement requiring mandatory coverage inapplicable for purpose of determining policy limits.

Douglas v. E. & J. Gallo Winery (1977) 69 Cal.App.3d 103; 137 Cal.Rptr. 797. The “dual capacity” doctrine removed an employer from the protection of the exclusive remedy provisions of the Worker’s Compensation statutes for injuries to employees while using a product manufactured by the employer for sale to the general public.

Bahten v. County of Merced (1976) 59 Cal.App.3d 101; 130 Cal.Rptr. 539. Compliance with the public entity claims presentation requirement did not have to be pled as an element of plaintiff’s negligence action because it was a procedural prerequisite, not an element of the suit.

E.B. Wills Co. v. Superior Court (1976) 56 Cal.App.3d 650; 128 Cal.Rptr. 541. Absent express contract of indemnity, employer not liable for comparative fault but instead was only liable for workers’ compensation benefits.

Foraker v. O’Brien (1975) 50 Cal.App.3d 856; 124 Cal.Rptr. 110. Affidavit in support of pre-judgment attachment sufficient despite absence of express declaration of personal knowledge.

Federal Appellate and District Court Decisions

Travelers Commercial Insurance Company v. New York Marine and General Insurance Company (C.D. Cal 2022) 2022 WL 100109. California Civil Code § 2860 requiring an insurer to appoint independent counsel when its reservation of rights creates an actual conflict of interest, even where applicable in a state outside of California because insurer’s policy was issues in California, does not compel appointment of independent counsel in case pending in Virginia (the Johnny Depp v. Amber Heard case) where case law holds that defense counsel has only the insured as a client.

Williamsburg National Insurance Company v. New York Marine and General Insurance Company (C.D. Cal. 2022) 2022 WL 3348935. Excess insurer not entitled to attorneys fees from primary insurer under “tort of another” doctrine in the absence of existence of a viable cause of action by the insured to which the excess insurer is subrogated.

Capitol Specialty Insurance Corporation v. GEICO General Insurance Company (2021) 562 F.Supp.3d 563. Insurer which had no information regarding pre-existing injuries, any estimation of future medical expenses or whether claimant’s condition had improved since the accident had no obligation to accept policy limits settlement demand absent its receipt of previously requested medical bills and records; excess insurer whose policy was not initially disclosed before settlement demand expired had no right to subrogation based on the assumption that injured party would have never discovered additional coverage and therefore equity did not support shifting of excess insurer’s settlement costs to primary insurer.

Government Employees Insurance Company v. Nadkarni (9th Cir. 2021) 842 Fed.Appx. 172. Personal injury consisting of “wrongful eviction” occurs when tenants move out of unit and lose any right to possess premises and did not only become “wrongful” when landlord failed to move into unit within ninety (90) days which, under rent control Ordinance, created presumption of improper motive for eviction.

Williamsburg National Insurance Company v. New York Marine and General Insurance Company (C.D. Cal. 2021) 2021 WL 4458952. MCS-90 endorsement requiring that insurer indemnify an insured notwithstanding otherwise applicable policy limitation does not apply to disputes between insurers.

Special District Risk Management Authority v. MunichRe (E.D. Cal. 2021) 2021 WL 4443391. Public entity self-insured risk pool may not maintain tort claims against reinsurers for breach of covenant of good faith and fair dealing or for violation of reinsurer’s duty of “utmost good faith.”

New York Marine and General Insurance Company v. Wherry (C.D. Cal. 2020) 506 F.Supp.Sd 1003. Liability insurer not barred by “implied-in-law co-insured” doctrine from subrogating against owner and sole shareholder of insured corporation who is not also insured under insurer’s policy.

Travelers Indemnity Company of Connecticut v. Newlin (S.D. Cal. 2020) 498 F.Supp.Sd 1262. No right to independent counsel where outcome of coverage issue is not dependent on an issue which can be controlled by insurer’s retained counsel.

Government Employees Insurance Company v. Nadkarni (N.D. Cal. 2020) 477 F.Supp.Sd 1091. Insurer’s defense under a reservation of rights, including the right to recover all defense costs, applies as of commencement of defense and includes right to recover pre-judgment interest at 7% where amount of damages are certain.

Tarakanov v. Lexington Insurance Company (2020) 441 F.Supp.3d 887. Insurer has no duty to pay extended replacement coverage cost until replacement costs are actually incurred, nor to confirm that such payment would be made.

Govindarajan v. Government Employee Insurance Company (2020) 437 F.Supp.3d 751. Personal umbrella liability insurer has no duty to defend defamation action where policy obligated insured to maintain underlying “auto” and “personal residence” insurance but insured only maintained auto insurance.

In re Brewer (E.D. Cal. 2020) WL 4551302. Judicial estoppel precludes creditor from withdrawing subpoena for medical records in underlying state court action and so representing to court in connection with motion to compel, and then re-subpoenaing same records in bankruptcy proceeding.

Government Employees Insurance Company v. Nadkarni (N.D. Cal. 2019) 424 F.Supp.3d 645. Offense of “wrongful eviction” is the injury and occurs upon tenant’s physical departure even though tenant’s personal property continued to be stored at premises after eviction.

Employers Ins. Co. v. Rick Concrete Constr. (9th Cir. 2016) (2016) WL 7321375.   Subsidence exclusion applied to preclude coverage for accident occurring when concrete pumper truck tipped over injuring workers who were working underneath extended boom where accident was caused by one of concrete pumper truck’s outriggers having been placed on uncompacted soil which suddenly caved in; inap­plicability of “concurrent cause” doctrine; and applicability of non-conflicting “other insurance” clauses.

Grange Insurance Association v. Sran (E.D. Cal. 2016) 184 F.Supp.Bd 799. Towing of trailer is a “use” of the trailer; trailer does not qualify as “mobile equipment” under excess policy; “concurrent cause” doctrine does not apply as such loading the forklift onto trailer is connected to use of excluded truck.

AIG Property Casualty Company v. William H. Cosby (2015) WL 9700994.  Extent of applicability of exclusion for personal injury arising out of an actual, alleged or threatened sexual molestation, miscon­duct or harassment.

Employers Ins. Co. of Wausau v. Lexington Ins. Co., EDCV 10-00810 VAP, 2014 WL 4187842 (C.D. Cal. Aug. 19, 2014). “Subsidence” exclusion precluding coverage for “earth movement of any kind whatsoever, including but not limited to…earth sinking …settling, falling away, caving in” applied to exclude coverage for liability arising when the outrigger of a parked concrete pumper truck sank into uncompacted soil causing the truck to tip and concrete boom to strike workers; to the extent general liability policy afforded coverage, it was excess to auto policy based on respective policies’ non-conflicting “other insurance” clauses.

Scottsdale Indem. Co. v. Lexington Ins. Co. (2012) 2012 U.S. Dist. LEXIS 179722.  General liability policy, not auto liability policy, applied to accident which occurred when funeral procession motorcycle-riding escort stopped traffic with green light, dismounted and began directing traffic when a motorcyclist collided with stopped traffic.

Am. Cas. Co. of Reading, PA. v. Western Envtl. Consultants, Inc. (E.D. Cal. 2011) 2011 U.S. Dist. LEXIS 98563. Pleading which does not allege locations of principal places of business of defendants is insufficient to demonstrate diversity jurisdiction.

Endurance Am. Specialty Ins. Co. v. Lance-Kashian & Co. (E.D. Cal. 2011) 2011 U.S. Dist. LEXIS 129330.  Counsel selected by insured did not have conflict of interest sufficient to trigger right to independent counsel under California Civil Code § 2860; insurer could not seek subrogation from third party where doing so would shift loss back to insured.

Endurance Am. Specialty Ins. Co. v. Lance-Kashian & Co. (E.D. Cal. 2010) 2010 U.S. Dist. LEXIS 100467.  Granting insured’s motion to dismiss insurer’s claims for Brandt fees and punitive damages because insurer’s “reverse bad faith” claim against insureds would not support award of such tort damages.

Blue Ridge Ins. Co. v. Jacobsen (9th Cir. 2009) 197 F.3d 1008. Issue of insurer’s right to recover settlement amounts paid under reservation of rights on account of non-covered claim certified by Ninth Circuit to California Supreme Court.

Ins. Co. of the State of Pa. v. City of Long Beach (9th Cir. 2009) 342 Fed. Appx. 274. A city’s attorneys’ fees constitute “damages” within the meaning of policy’s insuring language.

Lexington Ins. Co. v. Sentry Select Ins. Co. (E.D. Cal. 2009) 2009 U.S. Dist. LEXIS 109015.  In an action by excess insurer against primary insurer for failure to settle within limits, evidence of excess insurer’s claim handling is irrelevant and not discoverable since the primary insurer was in control of the defense.

Anderson v. Tamalpais Cmty. Servs. Dist. (N.D. Cal. 2009) 2009 U.S. Dist. LEXIS 103692.  Action against joint powers risk financing authority under 42 U.S.C. § 1983 not viable in absence of allegations of official policy of discrimination against third party plaintiff.

Clarendon Nat’l Ins. Co. v. H & G Transp (9th Cir. 2008) 290 Fed. Appx. 62.  MCS-90 endorsement does not make policy which it endorses primary since “primary purpose” of an MCS-90 endorsement is to assure that injured members of the public are able to obtain judgment from authorized interstate carriers.

Ins. Co. of the State of Pennsylvania v. City of San Diego (S.D. Cal. 2008) 2008 U.S. Dist. LEXIS 28280.  Communications between the insurance company counsel retained to investigate a claim and make coverage determination are privileged where the insurance company does not assert an advice of counsel defense but rather asserts that it acted as it did because the advice was, in its view, correct.

New Hampshire Ins. Co. v. Mendocino Forest Prods., Co., LLC (N.D. Cal. 2007) 2007 U.S. Dist. LEXIS 76147. Indemnity provisions in Buying Agreement required seller’s insurer to indemnify Buyer regardless of negligence of Sellers.

Mitsui Sumitomo Ins. Co. of Am. v. Delicato Vineyards (E.D. Cal. 2007) 2007 U.S. Dist. LEXIS 34428. Federal Court has subject matter jurisdiction over declaratory relief action in absence of evidence that it was filed as “reactive litigation” or in effort to “forum shop.”

Clarendon Nat’l Ins. Co. v. Ins. Co. of the West (E.D. Cal. 2006)  442 F.Supp. 2d 914. Even where misrepresentation or concealment need not be intentional to constitute a defense, rescission of a contract is not permitted for an incorrect or incomplete response if the applicant had no present knowledge of the facts sought or failed to appreciate the significance of information relayed to him.

Nat’l Union Fire Ins. Co. v. Am. & Foreign Ins. Co. (C.D. Cal. 2006) 2006 U.S. Dist. LEXIS 96778. Excess insurer’s policy issued as part of OCIP (“wrap-up”) program entitled insurer to equitable subrogation from insurer of subcontractor whose policy did not contain exclusion for OCIP or “wrap-up” projects.

City of Martinez v. New Hampshire Ins. Co. (9th Cir. 2005) 152 Fed. Appx. 669. Coverage for “personal injury” does not apply to leased premises where no actual physical intrusion.

Sierra Foothills Public Utility Dist. v. Clarendon America Ins. Co. (E.D. Cal. 2006) 2006 U.S. Dist. LEXIS 32221. Public officials errors and omissions policy applies even where public entity is the only defendant in the action if action is based on an act of a public official.

Am. Int’l Surplus Lines Ins. Co. v. City of San Diego (9th Cir. 2005) 121 Fed. Appx. 692; 2005. Allegations of trucks trespassing over property caused by City’s diversion of traffic potentially covered as both “property damage” and “personal injury.”

Pac. Lumber Co v. Nat’l Union Fire Ins. Co. (N.D. Cal. 2005) 220 F.R.D. 349; 2003 U.S. Dist. LEXIS 24585. Insured not entitled to protective order precluding insurer from undertaking depositions of persons with whom insured had previously settled.

Sierra Foothills Public Utility District v. Clarendon America Insurance Company (E.D. Cal. 2005) 2005 WL 2089832. Insured stated valid cause of action for fraud against insurer based on allegations that insurance policy promised coverage.

Twin City Fire Ins. Co. v. Ennen (9th Cir. 2003) 64 Fed. Appx. 47; 2003 U.S. App. LEXIS 7673. No coverage for judgment against insured based on failing to perform implied in fact contract where policy only extended to injury arising out of misappropriation of advertising ideas.

Wal-Mart Stores, Inc. v. RLI Ins. Co. (8th Cir. 2002) 292 F.3d  583, 594. Insurer whose insured had right of indemnity deemed excess to coverage afforded to named insured as an additional insured under vendor’s policy.

Blue Ridge Ins. Co. v. Jacobsen (9th Cir. 2001) 10 Fed. Appx. 563; 2001 U.S. App. LEXIS 11422. Insurer which defended personal injury suit under reservation of rights entitled to summary judgment for recovery of settlement payments made over insured’s objection where no coverage was afforded.

Clarendon Nat’l Ins. Co. v. Insurance Co. of the West  (2000) 2000 U.S. Dist. LEXIS 13920. Insurer whose policy specifically described vehicle involved in accident was primary despite MS-90 endorsement issued by second insurer.

Land Office v. Employers Reinsurance Corp. (9th Cir. 1999) 1999 U.S. App. LEXIS 1311. Insurer entitled to summary judgment in a breach of contract action because policyholders made material misrepresentations on their insurance application and failed to submit sufficient evidence to demonstrate waiver.

Blue Ridge Ins. Co. v. Stanewich (9th Cir. 1998) 142 F.3d 1145. Insurer which defends under a reservation of rights is not bound by the verdict in an underlying action where evidence showed that the insured’s acts of forcing his way into victim’s home, torturing them and attempting to rob them were not “accidental” as required to be covered as an “occurrence” under homeowner’s policy.

Allstate Ins. Co. v. Chubb Group (9th Cir. 1998) 1998 U.S. App. LEXIS 4479. Insureds who placed protesters under citizen’s arrest covered under homeowners policy because they did not intend battery to occur.

Conrad Assocs. v. Hartford Accident & Indem. Co., (N.D.Cal. 1998) 994 F.Supp. 1196. Absence of evidence sufficient to show amount in controversy would exceed $75,000 justified remand to state court.

Pena v. McArthur (E.D.Cal. 1994) 889 F.Supp. 403; 1994 U.S. Dist. LEXIS 20610, Action filed against insured, insurer and its employee properly removed to Federal Court on grounds of diversity of citizenship; action against insurer severed and claim against employee dismissed.

Gasnik v. State Farm Ins. Co. (E.D.Cal. 1992) 825 F.Supp. 245. Insurance agent not a proper party to action and therefore removal to Federal Court proper.

Aetna Cas. & Sur. Co. v. Dannenfeldt (D.Ariz. 1991) 778 F.Supp. 484. Summary judgment granted for insurers because insureds failed to make required factual showing that the civil lawsuits emanating from Lincoln Savings and Loan scandal triggered the insurers’ obligation to defend.

State Farm Mut. Auto. Ins. Co. v. Khoe (9th Cir. 1989) 884 F.2d 401. Conditional receipt clause in insurance application was unambiguous, but issue of fact existed as to whether temporary coverage was afforded as it was unclear if insurer actually explained clause to insureds.

Hartford Accident & Indemnity Company v. Continental National American Insurance Companies (9th Cir. 1988) 861 F.2d 1184. Primary insurer not entitled to recover defense costs from excess insurer without actual exhaustion of policy limits; tender of primary insurance policy limit insufficient to trigger excess insurer’s duty to defend.

Northern Assurance Co. v. Carr (9th Cir. 1988) 860 F.2d 934. Summary judgment upheld where policy exclusion, while unexpected and inconspicuous to some extent, was clearly explained in section of the policy dedicated to it.

United States Fire Ins. Co. v. Ganz (9th Cir. 1987) 818 F.2d 712. Claim against insured for wrongful dissemination of cremated human remains from trunk of vehicle does not arise out of use of vehicle.

Amicus Curiae

Waller v. Truck Ins. Exchange (1995) 11 Cal.4th 1; 900 P.2d 619; 44 Cal.Rptr.2d 370. No duty to defend complaint alleging investment loss and emotional distress emanating therefrom; no waiver or estoppel based on limited grounds of insurer’s denial letter.

La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal. 4th 27; 884 P.2d 1048; 36 Cal. Rptr. 2d 100. Workers’ compensation insurer not obligated to defend wrongful termination action.

Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254; 833 P.2d 545; 10 Cal. Rptr. 2d 538. Policy providing coverage for injury arising out of unfair competition occurring in course of an insured’s advertising activities only provided coverage for common law unfair competition claims, not statutory unfair competition.

J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal. 3d 1009; 804 P.2d 689; 278 Cal. Rptr. 64. A homeowner’s insurance policy did not provide liability coverage and plaintiff insurer was not required to indemnify insureds for damages caused by an insured’s sexual molestation of a child.

Doctors’ Co. v. Superior Court (1989) 49 Cal.3d 39; 775 P.2d 508; 260 Cal.Rptr. 183. No cause of action for conspiracy against an insurer, insured and attorney for conspiracy to commit violations of Unfair Practices Act.

General Casualty Ins. v. Workers’ Comp. Appeals Bd. (2004) 123 Cal.App.4th 202; 20 Cal. Rptr. 3d 58; In a workers’ compensation case, court affirmed a decision dismissing California Insurance Guarantee Association; general and special employers were jointly and severally liable, and special employer’s policy constituted other available insurance.

Aetna Casualty & Sur. Co. v. Superior Court (1994) 19 Cal.App.4th 320; 23 Cal. Rptr. 2d 442. Insurer had no duty to defend insured because the acts of inducing or contributing to patent infringement did not fall within the general liability insurance policy’s coverage for advertising injury.

United Pacific Ins. Co. v. McGuire Co. (1991) 229 Cal.App.3d 1560; 281 Cal. Rptr. 375. Potential for liability resulting from wrongful termination action brought against insured within definition of “occurrence” extending to “events” which required insurer to defend insured pursuant to a general liability policy.

Benge v. Superior Court (1982) 131 Cal.App.3d 336; 182 Cal.Rptr. 275. Whether attorney-client privilege protects communications from attorney to plaintiff where communications were source of knowledge of lead poisoning.

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