United Policyholders Amicus Project
Amicus Curiae Briefs
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Ieyoub, Richard P. v. The American Tobacco Company, (1998)
No. 97-31222 Court of Appeals, 5th Circuit, United States
Issue: Arbitration.
Insurance Commissioner of CA v. Golden Eagle Insurance Co., (2002)
Court of Appeal of CA, 1st Appellate District, Div. 3, OSC No. 638
Issue: Scope of pollution exclusion/commercial policy.
International Recovery Corporation v. National Union Fire Insurance Company of Pittsburgh, PA, (1995)
No. 95-1852 District Court of Appeals, 3rd District, Florida
Issue: Absolute polluter's exclusion; inconsistent coverage positions
Iowa Comprehensive Petroleum Underground Storage Tank Fund Board v. American States Insurance Company, (1996)
No. 96-510, Supreme Court of Iowa
Issue: Polluter's Exclusion; drafting history
Iowa Comprehensive Petroleum Underground Storage Tank Fund Board v. Farmland Mutual Insurance Company
No. 96-512, Supreme Court of Iowa
Jamaica Hospital Medical Center, Inc. et al, vs. United Health Group, Inc. et al., (2007)
United States District Court, Eastern District of New York, Civil Case No. 07-0506 (SJ)
Issue: Request to Intervene. It is unfortunate and unfair that mandatory arbitration is growing rapidly as a requirement for patients to receive necessary medical services. This Court should refuse to compel arbitration and allow the instant case to move forward to trial.
Download Brief Amicus Curiae of United Policyholders (doc)
Johnson Controls v. Employers Insurance of Wausau, (2003)
No. 01-1193 Supreme Court of Wisconsin
Issue: CGL coverage by a utility must include costs of clean up
for historical property damage including environmental response costs.
Johnson, Greg et al. v. Ford Motor Co., (2005)
No. S121723, Supreme Court of CA
Issue: The permissible ration of punitive to compensatory damages
after Campbell should not be limited to a bright line ratio.
Download Brief Amicus Curiae of United Policyholders (1.9MB pdf)
Jonathan Neil & Associates v. Jones et al., (2002)
98 Cal. App. 4th 434
Request for Depublication
Issue: Court held that the plaintiff could not state a cause of action for bad faith
for the failure to settle claims against him because the conduct in question
did not involve the payment of claims by the insured or the failure to settle
claims made against the insured. In the Court's point of view, a tort recovery
for an insurer's bad faith breach is available only in cases involving "the
limited issues of bad faith payment of claims and unreasonable failure to
settle."
Jones, Janet and Terry v. Allstate Insurance Co et al., (2000)
No. 46005-6-1 Supreme Court, Washington
Issue: Allstate cannot be allowed to deceive policyholders and
third party claimants by failing to inform them they may be in an adversarial
position with the insurance company and that the insurance company has no
obligation to protect the victim.
Julian v. Hartford Underwriters Ins. Co., (2005)
No. S109735, Supreme Court of California
Issue: UP took position that the scope of landslide exclusion
should not encompass damage from a tree that crashed into a home.
Download Brief Amicus Curiae of United Policyholders (68K pdf)
Download recent CA. Supreme Court decision referencing amicus brief of United Policyholders (64K pdf)
Kazi, Zubair and Khatija Kazi v. State Farm Fire and Casualty Company, (2000)
>No.B089804 Supreme Court, California
Issue: An easement must be considered tangible property and injury
there from must be covered under "property damage."
Kent Farms, Inc. v. Zurich Insurance Company, (1999)
No. 67635-6 Supreme Court, Washington
Issue: Insurance companies cannot abrogate their insurance
policies by applying in practice a more restrictive interpretation of coverage
than what was represented to the insurance commissioners in order to obtain
approval of the language of the policy and associated premiums.
Kentucky Farm Bureau Mutual Insurance Company v. Tina Rodgers, (2003)
Kentucky Supreme Court
Issue: Punitive Damages; public service nature of insurance.
Ketzner v. John Hancock Mutual Life Insurance Co., (2004)
USCA No. 03-4870, 3rd Circuit
Issue: Post complaint bad faith, RICO violations
Knotts v. Zurich Insurance Co., (2005)
No. 000-400, Supreme Court of Kentucky
Issue: Insurance Company has a continuing duty of good faith and fair dealing after a
lawsuit has been filed.
Koken v. Legion & Villanova Ins., (2003)
Nos. 204, 205, 211, 212, MAP, Pennsylvania. 2003
Issue: A reinsurer's obligation to make payments to the insured does not diminish
after insolvency.
Kransco v. American Empire Surplus Lines Insurance Company, (2000)
977 California p.2d 692 (1999)
Issue: An insurance company can no longer use the affirmative
defense of comparative bad faith to escape liability for bad faith claims
handling practices. Although this is a third party case, the reasoning has
been applied to first party cases as well. See Hale, above.
Kuwahara v. 20th Century Insurance, (1999)
No. S083217 Supreme Court, California
Issue: Statute of Limitations should not be invoked to deny coverage when the
untimliness of the claim was based on the insurance company's inadequate
investigation and misrepresentations regarding coverage.
Kvaerner Metals V. Commercial Union, (2004)
Supreme Court of Pennsylvania
Issue: Reasonable expectations of coverage; rules of interpretation; duty of good
faith and fair dealing
Labarre, Ann M. et al v. Credit Acceptance Corporation, (1999)
No. 9803097 Court of Appeals, 8th Circuit, United States
Issue: Case applying Minnesota law. RICO assists and does not impair
the stats in their battles against insurance company fraud. RICO does not
conflict with Minnesota's regulatory system. Policyholders must be allowed to
pursue all other non-I insurance common law and statutory remedies.
Download Brief Amicus Curiae of United Policyholders (3.7MB pdf)
Landry et al., v. Louisiana Citizens Property Insurance Corporation (2008),
Supreme Court of Louisiana docket No. 2007-C-1908. Companion case to Williams, consolidated for oral argument with Sher v. Lafayette Ins. Co. UP filed amicus briefs both in the Louisiana Supreme Court and the Louisiana Court of Appeal for the Third Circuit.
Issue: Value Policy Law requires the insurer to make full payment to the insureds regardless that the total loss was a result of a combination of covered and excluded perils under the insurance policy so long as the efficient proximate cause of the loss was a covered peril.
Download Brief Amicus Curiae of United Policyholders (496Kpdf)
Download Amicus Brief in Louisiana Supreme Court (872Kpdf)
Download Read Court of Appeal decision quoting from UPH brief (200Kpdf)
Larsen Oil Company v. Federated Service Insurance Company, (1995)
859 F. Supp. 434, Oregon, No. 94-35891 Court of Appeals, 9th Circuit, United States
Issue: Scope of absolute pollution exclusion.
2130 Leavenworth Homeowners Assoc. v. State Farm Ins. Co., (2006)
Case No. A109367, Supreme Court, California
Issue: Request for Rehearing—UP argued that the Court of
Appeal improperly ignored the State Farm policy language obligating the insurer
to defend both claims and suits. By ignoring this language the First District
violated the rule in California that "insurance contracts are construed to
avoid rendering terms surplusage." Since State Farm's policy used both "claims"
and "suits" it clearly intended those terms of art to have separate and
different meanings.
Lebas Fashion Imports of USA v. ITT Hartford Insurance Group, (1996)
No. B083983 Court of Appeals, 2nd Appellate District, Division 3, California
Issue: advertising injury; quasi-estoppel.
Lionel Simon v. San Paolo RS Holding Company, Inc., (2004)
No. S121933, Supreme Court of California
Issue: A careful reading of Campbell shows that the Supreme Court
did not lay down a single digit ratio for punitive damages and the decision was
not intended to deprive states of the ability to exercise their legitimate
state interests in deterring and punishing unlawful conduct through the use of
reasonable punitive damage awards.
See related case and brief in Johnson, Greg et al. v. Ford Motor Co.
Liristis, Carla et al v. American Family Mutual Insurance Co., (2001)
No. CV 99-00046 Div. One Court of Appeals, Arizona
Issue: The cost of removing mold should be covered if the mold
occurred because of a covered loss.
Lititz Mutual Insurance Company v. Steely, (2000)
Appellate Division New York State
Issue: Reasonable expectations; "absolute" polluter's exclusion.
Lockheed Corp. v. Continental Ins.Co., (2005)
137 Cal. App. 4th 187
Issue: Interpretation of the personal injury liability ("PIL") coverage provision in
comprehensive general liability policies and its application to environmental
liability. Long standing positions taken by the insurance industry flatly
contracts the current position of the industry that violation or infringement
of property or contract rights claims are not with the PIL coverage. Insurance
companies must be prevented from contradicting positions taken by them at the
time the provisions at issue were drafted and in other insurance coverage
actions simply when it serves their own financial interests to do so. When
construing an insurance policy, the primary focus should be on the reasonable
expectations of the insured at the time the coverage was purchased.
Loyal Crownover v. Traveler's Casualty & Surety, (2003)
No. 40234 Superior Court Nevada
Issue: Exclusions in a policy cannot be buried in the boilerplate verbiage of the
grant of coverage. In this policy the promise of a defense under these
circumstances was clear and invoked the insurer's duty to defend.
Download Brief Amicus Curiae of United Policyholders (1.8MB pdf)
Maremont Corporation v. Edward William Chesire, (1996)
No. 96-0146 Appellate Court, 1st Judicial District, Division 3, Illinois
Issue: Estoppel; inconsistent coverage positions; public policy;
clean-up costs as damages.
Marselis, Anne v. Allstate Insurance Co., (2004)
CA Court of Appeal 2nd Appellate District, Division 3, 1st Civil No. A100860
Issue: Because it did not rely on the statute of limitations in
denying the claim, Allstate should be estopped from raising it as an
affirmative defense in a bad faith lawsuit filed against it by its
policyholder.
Mathis v. State Farm Mutual Automobile Insurance Company, (1999)
No. 98-36001 Court of Appeals, 9th Circuit, United States
Issue: Court should unequivocally declare that the termination of an
insurance company employee for refusal to engage in bad faith conduct
contravenes a clear mandate of public policy and subjects the insurance company
employer to liability in tort for wrongful discharge.
Download Brief Amicus Curiae of United Policyholders (4.8MB pdf)
McKendry, Steven v. General American Life Insurance Company, (2001)
No. CV 96-0754-PKX-PGR, United States District Court, Arizona
Issue: UP sought to intervene in an action to unseal exhibits
that demonstrated Paul Revere's motives to deny claims. UP was allowed to
intervene but Court would not unseal documents.
Medallion Industries, Inc. v. Atlantic Mutual Insurance Company, (1997)
No. 97-35317 Court of Appeals, Ninth Circuit, United States
Issue: Doctrine of insurability; Discrimination; accident.
Medical Society of the State of New York v. Gregory Serio, Superintendent of Insurance State of New York, (August 2002)
No. 116519/01 Supreme Court of the State of New York
Issue: UP supported the challenge to a regulation shortening the
amount of time injured parties have in which to bring an insurance claim.
Download Brief Amicus Curiae of United Policyholders (2.5MB pdf)
Medill v. Westport Insurance Corporation, (October 4, 2006)
143 Cal. App. 4th 819, 2006 Cal. App LEXIS 1537
Issue: Volunteer Board of Directors should be covered under D
& O policy and the Court should not so broadly construe the exclusion for
breach of contract so as to apply to tort claims because the lawsuit remotely
related to the corporation's breach of its bond obligations. Moreover, the
burden of proof to disprove the application of the breach of contract
exclusion, simply because the exclusion was hidden in the definition of a term
contained in the insuring clause of the policy. California Courts have always
held that the insurer bears the burden to prove that an
exclusion precludes coverage.
Download Brief Amicus Curiae of United Policyholders (108K pdf)
Medill v. Westport Insurance Company, (October 4, 2006)
143 Cal.App.rth 819.
Issue: Request for Depublication stating that the underlying case abandons long
standing precedent that an insurer has the burden of proof to the policyholder
to negate the application of an exclusion to a potentially covered claim.
Mesa Operating Company v. California Union Insurance Company, (1998)
No. 05-06-00986-CV Court of Appeals, 5th District, Texas
Issue: The evidence presented supports the conclusion that the
insurance industry represented that the State Board of Insurance understood the
"sudden and accidental" pollution exclusion did not reduce existing coverage
for pollution damages that were neither expected nor intended.
Metz, John v. Superior Court of California, (2004)
No. B175073, Court of Appeal, State of California, 2nd Appellate District
Issue: Up supports relief under section 1871.7 which deputizes
private citizens to act on behalf of the state claiming that Farmers Insurance
Co. makes misrepresentations in its handling of private passenger vehicle
physical damage claims and in the sale and marketing of its private passenger
vehicle physical damage related insurance policies.
Download Brief Amicus Curiae of United Policyholders (560K pdf)
Millers Capital Insurance Company v. Gambone Brothers Dev. Co., et al., (2007)
Docket No. 420 EDA 2007 (Pa Super.)
Issue: Case involves insurance coverage for property damage resulting from faulty
workmanship by an insured contractor and its subcontractors. The standard form
general insurance liability policy ("CGL") was intentionally designed to cover
the underlying claims of faulty workmanship.
Download Brief Amicus Curiae of United Policyholders (1.5MB pdf)
Monticello Insurance Company v. Baecher, (1996)
No. 960193 State Supreme Court, Virginia
Issue: Trigger of coverage: occurrence: application of absolute polluter's exclusion
Morris, Martin v. Paul Revere Life Insurance Company, (2003)
No. G030567, 4th Appellate District, Division 3
Issue: Request for depublication of opinion which held that bad faith liability
cannot be imposed upon an insurer as a matter of law where there are
uncertainties in controlling case law even if the insurer is wrong on the law.
Motiva Enterprises, LLC v. St. Paul Fire & Marine Ins. Co. etc., (2005)
Case No. 05-20139, USCA, 5th District
Issue: The insurer should not forfeit coverage by settling without
insurance company's authority when the insurance company intentionally place
itself in an adversarial position with its insured by issuing a Reservation of
Rights.
Download Brief Amicus Curiae of United Policyholders (68K pdf document)
Court's Decision (248K pdf)
Impact of Decision (52K pdf)
Mealey's Article re: Decision (4MB pdf)
National Union Fire Insurance Company of Pittsburgh v. Beatrice Crocker, (2000)
Supreme Court of Texas, Docket No. 06-0868
Issue: The Court should confirm the well-established rule that
insurance companies owe their policyholders and additional insureds a duty to
disclose coverage. Moreover, an insurance company cannot rely on lack of
formal notice when it (a) receives actual notice or (b) has not been prejudiced
by a lack of notice.
Download Brief Amicus Curiae of United Policyholders (4.4MB pdf)
Nationwide Mutual Fire Insurance Company v. Beville , (2003)
(companion case) Nationwide Mutual Insurance v. Richardson, (2004)
No. SC02-2385 Supreme Court of Florida
Issue: Court should consider the historical circumstances surrounding the drafting of
the Absolute Pollution Exclusion (APE) and limit its application to long-term
industrial pollution of the environment and should not allow insurance
companies to apply the APE to cases that do not involve environmental pollution.
Download Brief Amicus Curiae of United Policyholders of Nationwide Mutual Insurance v. Richardson companion case (8.1MB pdf)
Nationwide Mutual Insurance Company v. Chillura, (2005)
No. 2D04-4906, In the District Court, 2nd District, Florida
Issue: A building's foundation system is an integral component of
any building. Accordingly, declaring a foundation system part of the "land"
and not part of the building in order to deny coverage is misconstruing and
misapplying both Florida Statute No.627.706 and related insurance policy
provisions. In many or all property liability insurance contexts, (e.g., fire,
windstorm, water, etc.), a property's infrastructure, internal, and its
external components are examined to determine the full extent of damage or
loss. There is no valid reason for treating sinkhole damaged property any
differently.
Download Brief Amicus Curiae of United Policyholders (132K pdf)
Norfolk Southern et al v. California Union Insurance Co., (2002)
No. 2002-CA-371 Court of Appeal, First Circuit, State of Louisiana, October 2002
Issue: The Court should affirm its decision to allow joint and
several liability where the loss may be covered by several insurance policies
and not allow the insurer's pro-rata allocation scheme which puts the burden on
insureds.
Norman, George v. State Farm Mutual Automobile Insurance Company, (2002)
No. CV-01-04554-PR Supreme Court, Arizona
Issue: UP argued that the Court should not use admittedly bad
facts to justify insurer's failure to satisfy Arizona's auto insurance
cancellation provisions.
Download Brief Amicus Curiae of United Policyholders (220K pdf)
Old United Insurance Company, dba Vantage Casualty Company v. Don Buhrman, (2006)
Fourth Appellate District, California
Issue: Insurance Policy contained a compulsory arbitration clause which Insurance
Company ignored forcing insured to incur expenses for litigation as well as
loss of time. Under these circumstances, damages for breach of contract are
insufficient. Only a tort rationale will provide compensation for the
consequential damages suffered by the policyholder.
Download Brief Amicus Curiae of United Policyholders (2.5MB pdf)
Padilla Construction Company, Inc., v. Transportation Insurance Company, (2007)
Case No. G036451, In the Court of Appeal of California, Fourth Appellate District, Division Three.
Issue: Request for modification of previous decision.
The CGL policies at issue potentially cover all damages because of the property damage alleged in the Padilla
lawsuit, including property damage
that may have occurred prior to inception of the Stage 4 Primary Insurer's
policies. Therefore, the Padilla lawsuit
was not a "mixed action." That means that Stage 4 Primary Insurer's duty to defend the entire lawsuit was a
contractual duty rather than the prophylactic duty discussed in Buss
and the Stage 4 Primary Insurer would not be entitled
to seek reimbursement of defense costs related solely to damages because of
property damage that occurred outside of the Stage 4 Primary Insurer's policy
period. Thus, the portions of the Court's Opinion that discuss the defense
obligations of insurers in "mixed" actions and an insurer's right to seek
reimbursement of defense costs are not necessary to the Court's holding.
Download Brief Amicus Curiae of United Policyholders (192K pdf)
Read Proof of Service (76K pdf)
Patrick, Patricia v. UNUM, (2001)
No. S098602 California Supreme Court
Issue: The scope of ERISA preemption should not be extended
beyond congress' intent and should not be allowed to preempt first party
insurer bad faith tort claims.
Paul Revere Life Insurance Company v. Taylor, (2004)
Case No. C99-21104JF
Issue: Paul Revere must expressly inform its policyholder that it
is reserving its right to exercise its discretion in making a disability
determination.
Payton, Dolores v. Aetna/US Healthcare, (1990)
No. 99/100440 Supreme Court, County of New York, New York
Issue: Tutorial for the Court re: Insurance Ethics; duty of good
faith and fair dealing; insurance as a product; insurance companies as
fiduciaries; public service nature of insurance.
Download Court Order referencing UP amicus brief
Peerless Lighting Company v. American Motorists Ins. Co., (2000)
No. AO 82975, AO83487, AO84373 1st Appellate Dist., Alameda County, CA
Issue: Request to Grant Petition for Review. Duty to Defend Case. UP supported the position that the duty to defend attaches as soon as there is
a possibility that the allegations of the complaint fall within the coverage of
the policy.
Penn-America v. Mike's Tailoring, (2005)
S131639, Supreme Court of California
Issue: Scope of water damage exclusion involving issues of proximate
and concurrent causation.
Download letter ( 101K pdf)
Penn Erie Insurance Exchange v. Hollock: See under Hollock, (2004)
Issue: Involved an uninsured motorist's claim. UP brief supported
insured's position that the claim was handled in bad faith.
Download Brief Amicus Curiae of United Policyholders (2.9MB pdf)
Download Companion Brief Amicus Curiae of United Policyholders (1.1MB pdf)
Perez v. Fire Insurance Exchange, (2005)
Civil No. F043931, Court of Appeal, 5th Appellate District, California.
Issue: Corporate Structure of Farmer's Insurance Exchange.
Download Brief Amicus Curiae of United Policyholders (952K pdf)
Permanent General Assurance Corp. v. SCOC (Hernandez), (2004)
S129123, Supreme Court of CA
Issue: The discovery and admissibility of evidence of pattern and
practice of unfair claims handling. Request for depublication.
Philip Morris USA v. Mayola Williams, (2006)
In the Supreme Court of the United States, No. 05-1256
Issue: Review of Court's previous decisions regarding punitive damages. The Court
should not be setting substantive due process standards for punitive damage
cases. Lower Courts have interpreted the Court's opinion in Campbell V.
State Farm Mut. Auto Ins. Co., as requiring a single digit ratio for the
award of punitive damages. UP does not agree with this interpretation. UP
takes that position that Campbell is unclear on this issue and before
state courts automatically apply the single digit ratio, which is often in
conflict with state law requirements for such as award, the Supreme Court of
the United States must clarify its position.
Download Brief Amicus Curiae of United Policyholders (196K pdf)
Pilkington North America v. Travelers, (2005)
In the Supreme Court of Ohio, Case No. 2005-0378
Issue: Relying on the majority rule, UP supported the argument that a corporate policyholder is
entitled to a defense and indemnity for pre-acquisition liabilities because
liability insurance coverage follows the alleged liability by operation of law.
The majority of courts have held that anti-assignment clauses do not apply to
the transfer of coverage rights or choses in action after a loss has taken
place. This position also is consistent with the custom and practice of
insurance companies and corporate policyholders alike.
Pincheira v. Allstate Insurance Company, (2002)
No. 22,760 Court of Appeals, State of New Mexico
Issue: UP opposes Allstate's attempts to shield important
documents regarding claims handling practices based on trade secrecy status.
Secrecy allows corporate misdeeds by insurers to continue unchecked.
Download Brief Amicus Curiae of United Policyholders (1.8MB pdf)
Powerline Oil Company, Inc. v. Superior Court of California (Central National Fire Insurance
Company), (2003)
Supreme Court, State of California, Case No. S 113295
Issue: When a policy uses the terms "suit" and "claim" in its "ultimate net loss provision",
the insurer must provide coverage for a lawsuit in a court of law and other
judicial proceedings.
Download Brief Amicus Curiae of United Policyholders (84K pdf)
Quan v. Truck Exchange, (1999)
Case No. 5071510, California Appellate Court.
Issue: Amicus in support of request for review. Duty to Defend.
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