Unemployment Insurance Code section 1960 provides that any finding, judgment, or final order of the Unemployment Insurance Appeals Board shall not be used as evidence in any separate or subsequent action or proceeding between an employee and present or prior employer.
In Kurz v. Syrus Systems the Court of Appeals held that section 1960 operated as a bar to the maintenance of a cause of action for malicious prosecution in a cross-complaint Kurz’s prior employer asserted against Kurz. The offending cause of action alleged that Kurz had maliciously prosecuted a meritless claim for unemployment insurance benefits that terminated in Syrus’s favor when the claim was denied and the denial was upheld on appeal by a decision of the Board. Continue reading →
Underinsured motorist insurance covers the insured who is injured by an automobile even if the insured is a pedestrian. However, the statutorily required underinsured motorist coverage is specifically limited to the “insured.” If a person is not the insured, there is no statutorily required underinsured motorist coverage.
In Berendes v. State Farm a pedestrian was struck and killed by an automobile. She was a rated and listed driver on an insurance policy which named her father as the insured and which covered an automobile owned by her father. She was not an insured under the statutory definition and therefore the statutorily mandated underinsured motorist coverage was unavailable to her heirs. Continue reading →
Code of Civil Procedure section 437c governs the service and contents of motions for summary judgment and summary adjudication. The times specified for filing and service have been held to be jurisdictional in the sense that lack of proper notice defeats the motion. Continue reading →
1) Failure to timely demand a jury trial;
2) Failure to appear at trial;
3) By written consent;
4) By oral consent in open court, entered in the minutes;
5) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation;
6) By failing to pay jury fees as required by statute. Continue reading →
Revenue and Taxation Code § 23301 provides that the corporate powers, rights and privileges of a domestic taxpayer may be suspended if it fails to pay any tax, penalty, or interest that is due and payable to the Franchise Tax Board. Except for filing an application for tax-exempt status or amending the articles of incorporation to establish a new corporate name, a suspended corporation is disqualified from exercising any right, power or privilege. Continue reading →
Are the proceeds of a term life policy community property or separate property of the spouse who pays the final premium? Recognizing a split of authority, the Fifth Appellate District held in Marriage of Burwell that the characterization of term life insurance proceeds depends on multiple factors, including whether the policy contains certain contractual provisions, the insurability of the insured spouse, and on the characterization of the funds which paid the premium for the final term of the policy. Continue reading →
Rossberg v. Bank of America is a case about factual allegations which will not win the day in a suit to enjoin a nonjudicial foreclosure sale. The Rossbergs attempted to allege defects sufficient to invalidate the recorded Notice of Default and sought to enjoin the foreclosure sale of their residence. The take-a-ways: Continue reading →
The Fourth Appellate District holds that “[w]hen an insurance company issues a liability policy, agreeing to indemnify its insured against a third party claim for damages covered under the policy, and to defend the insured against any such claim,” the insurer’s duty to defend the insured against a third party lawsuit does not extend to a suit seeking injunctive relief only, where no compensatory damages are sought.
“The third party’s failure to seek compensatory damages against the insured means the dispute is not a claim for damages under the policy. The insurer’s defense obligation requires it to provide the insured with a defense against a claim seeking damages potentially payable under the policy, not to defend the insured’s honor or otherwise assist it in resolving a nonmonetary dispute.” San Miguel Community Assn. v. State Farm.
An insurer agrees to provide a defense with a reservation of rights and approves independent counsel selected by the insured to represent the insured in an underlying tort action, pursuant to Civil Code section 2860 and San Diego Federal Credit Union v. Cumis Ins. Society, Inc. The insurer subsequently withdraws all reservations of rights and coverage defenses that give rise to the insured’s right to Cumis counsel. Must the insurer continue to pay the insured’s Cumis counsel after the insurer’s withdrawal of the Cumis-triggering reservations eliminated the conflict that created the need for Cumis counsel? The answer to this question is no, pursuant to Swanson v. State Farm General Insurance.
Michael Daymude consults with clients and accepts cases involving disputes with insurance companies, including disputes related to a defense under reservation of rights and the right to Cumis counsel. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael at 818.971.9409.