Monday, January 08, 2007

Requirement of Manifestation Changes Occurrence Based Policy to Claims Made Policy

Under the continuous injury trigger rule, continuous or progressive property damage is deemed to occur over the entire process of the continuing injury. The damages suffered can begin as early as the time of the negligent construction and continue through manifestation, even though a lapse of time exists between the initial negligent act and the occurrence of the ultimate damage. Pepperell v. Scottsdale Insurance Company (1998) 62 Cal. App. 4th 1045, 1053.

The Court in Montrose II rejected any attempt to deny a defense or coverage based on a “manifestation” trigger of coverage theory and adopted the continuous injury trigger for defining the trigger of coverage under a third party liability policy. The Montrose II Court based its decision on the rationale that the insurer was attempting to transform an “occurrence” based policy into a “claims made” policy. The Court held that utilizing a manifestation trigger of coverage in a third party liability policy would contravene public policy. The Court reasoned that it would not adopt the Manifestation Trigger analysis to third party liability policies, as it already had done with first party policies, based on the fact that the premiums charged for an occurrence based policy are much higher than a claims made policy, and due to the fact that different risks are involved (first party
policy being the property damage itself, wherein third party policy would be the named insured’s liability to a third party). Finally, legal scholars have questioned whether a policy modification requiring manifestation of property damage or bodily injury during the policy period in an “occurrence” based policy is enforceable due to public policy concerns.

In a third party liability policy, the insured party does not have first hand knowledge of damages until a claim is made by a third party. Therefore, the insured has no control to protect its interest in a policy of insurance by providing adequate notice of the date that damage first “manifested.” The third party plaintiff has no requirement to provide notice of the damage caused by the alleged negligence of the named insured until the statutory limit for commencement of an action against the named insured has passed. Furthermore, the third party claimant has no obligation to prove the date of manifestation of damages beyond the scope of the statute of limitations.

Saturday, January 06, 2007

The Mere Potential of Coverage Triggers the Duty to Defend

The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Montrose Chemical Corp. v Superior Court, 6 Cal.4th 287, 295 (1993). Facts extrinsic to the complaint also give rise to the duty to defend when they reveal a possibility that the claim may be covered by the policy. The carrier must defend a suit which potentially seeks damage within the coverage of the policy. Gray v Zurich Insurance Co., 65 Cal.2d 263 (1966). A liability insurer owes its insured a broad duty to defend its insured against claims that create a potential for indemnity. Horace Mann Ins. Co. v Barbara B., 4 Cal.4th 1076 (1993). The duty to defend may exist even where the coverage is in doubt and ultimately does not develop. Montrose I citing Saylin v California Ins. Guarantee Assn., 179 Cal.App.3d 256, 263 (1986).

The Court in Montrose II held that coverage may be sought for continuous or progressively deteriorating property damage or bodily injury losses insurable under a third party CGL policy, as long as there remains uncertainty about damage or injury that may occur during the policy period and the imposition of liability upon the insured, and no legal obligation to pay third party claims has been established. Montrose Chemical Corp. v Admiral Insurance Company, 10 Cal. 4th 645, 677-678 (1995).

Travelers Casualty and Surety Company v Employers Ins. of Wausau held that an insurer is liable for defense fees from the date of tender if the potential for coverage was present. 130 Cal. App. 4th 99 (2005). The burden of proof shifts to the nonparticipating insurer to prove the absence of actual coverage once a prima facie showing of coverage is established by the settling insurers. Safeco Ins. Co. of America v The Superior Court of Los Angeles County, 140 Cal. App.4th 874 (2006).