California Supreme Court Cases (Insurance) Pending as of April 4, 2017

Heckart v. A-1 Self Storage, Inc., S232322.  (D066831; 243 Cal.App.4th 525; San Diego County Superior Court; 37-2013-00042315-CU-BT-CTL involves the issue of whether a self- storage facility rental agreement, which involved clauses that supposedly meet the definition of “insurance”, (Ins. Code sec. 22, 1758.75) are subject to regulation when the purpose of the agreement was to rent space, not shift or distribute risk.

Kim v. Toyota Motor Corp., S232754. (B247672; 243 Cal.App.4th 1366, mod. 244 Cal.App.4th 643b; Los Angeles County Superior Court; VC059206.) deals with the question of whether evidence of industry custom and practice is admissible in a strict products liability action.

King v. CompPartners, Inc., S232197. (E063527; 243 Cal.App.4th 685). The court indicates “this case presents the following issues: (1) Is a claim by an injured worker for medical malpractice, brought against a workers’ compensation utilization review company, barred by workers’ compensation as the exclusive remedy? (2) Does a workers’ compensation utilization review company, that performs medical utilization reviews on behalf of employers, owe a duty of care to an injured worker? (3) Did the CA err in finding that plaintiffs should be given leave to amend their complaint in this case”?

Liberty Surplus Ins. Corp. v. Ledesma & Meyers Construction Co., Inc., S236765. (9th Cir. No. 14-56120; __ F.3d __, 2016 WL 4434589; Central District of California; No. 2:12-cv-00900-RGK-SP.) This case is a request by the 9th Circuit that the California Supreme Court answer: “Whether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.”

McMillin Albany LLC v. Superior Court, S229762. (F069370; 239 Cal.App.4th 1132; Kern County Superior Court; CV279141DRL involves the question: “Does the Right to Repair Act (Civ. Code, § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home”?

Migdal Insurance Co. v. Insurance Co. of the State of Pennsylvania, S236177. (2nd Cir. No. 15-2588-cv; __ Fed.Appx. __, 2016 WL 3639102; Southern District of New York; No. 1:14-cv-00700-JPO-SN.) This case is a request by the United States Court of Appeal 2nd Circuit, under California Rules of Court, rule 8.548, that this court (California Supreme Court) decide questions of California law presented in a matter pending before the 2nd Circuit. “As restated by the court, the questions presented are: (1) When two primary liability insurers agree that their policies cover the same loss, may the primary insurer whose policy contains an “other insurance” clause (stating that its insurance is excess over any “other insurance or . . . self-insurance plan that covers a loss on the same basis”) enforce that clause in an action for equitable contribution brought by the primary insurer who defended and settled the insured’s claim and whose policy does not contain an other-insurance clause? (2) In the same equitable contribution action described in Issue 1, when the amount paid by the primary insurer that settled the claim exceeds the non-settling primary insurer’s liability policy limits, what is the effect, if any, of the non-settling insurer’s “limits reduction” clause (stating that “[a]ll payments made under any local policy issued to [the insured] by us or any other insurance company will reduce the Limits of Insurance of this policy”)?

Parrish v. Latham & Watkins, S228277. (B244841; 238 Cal.App.4th 81; Los Angeles County Superior Court; BC482394.) The lower court granted a special motion to strike in a civil action. This case presents the following issue: Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude their subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith?