A recent decision from the Ninth Circuit Court of Appeals clarified an excess insurer’s options under California law when it is presented with a proposed settlement that invades its excess layer and has been approved by the insured and primary insurer. See Teleflex Medical Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2017 U.S.App.LEXIS 4996 (9th Cir. March 21, 2017). In Teleflex, the court applied the rule set forth in Diamond Heights Homeowners Ass’n v. Nat’l Am. Ins. Co. (1991) 227 Cal.App.3d 563 (“Diamond Heights”) stating that the excess insurer can: (1) approve the settlement; (2) reject the settlement and assume the defense of the insured; or (3) reject the settlement, decline the defense, and face a potential lawsuit by the insured seeking contribution.

In Teleflex, LMA became involved in a lawsuit with a competitor. LMA filed suit seeking recovery of damages for patent infringement and the competitor filed counterclaims for trade disparagement and false advertising. After several years of litigation, the parties agreed to settle their respective claims. As part of the settlement, LMA agreed to pay $4.75 million for the disparagement claims and LMA’s competitor agreed to pay $8.75 million for the patent claims. The settlement was contingent upon LMA obtaining approval and funding from its primary and excess insurers.

LMA’s primary carrier agreed to the settlement, but its excess insurer, National Union requested additional information which was provided by LMA, along with a demand that National Union could accept the settlement, reject the settlement and take over the defense, or reject the settlement, refuse to defend, and face a reimbursement claim. National Union ultimately rejected the settlement without offering to take over the defense.

LMA then brought suit against National Union for breach of contract and bad faith, where a jury awarded LMA damages for both. On appeal, National Union argued, among other things, that the district court erred in applying the rule articulated in Diamond Heights, asserting that it had effectively been overruled by Waller v. Truck Ins. Exch. (1995) 11 Cal.4th 1. National Union argued that under Waller, an insurer can only waive a policy provision through an intentional relinquishment of a known right. Accordingly, National Union asserted that LMA’s claims failed as matter of law because the “no voluntary payments” and “no action” clauses gave National Union the absolute right to reject the settlement. Disagreeing, the Ninth Circuit held that Waller did not mention Diamond Heights and reasoned that it simply reiterated general waiver principles that existed prior to and were not in conflict with Diamond Heights. In so holding, the Ninth Circuit reasoned that regardless of Diamond Heights use of the term “waiver” its rule is really about an insurer’s breach of its obligations under the policy and/or the implied covenant of good faith and fair dealing – not the waiver or expansion of a policy provision addressed by the Waller court.

Of note, the Ninth Circuit also expressed skepticism regarding the application of the “genuine dispute doctrine” to third party claims and held that an insurer was not entitled to a specific jury instruction regarding that defense. The court also affirmed the district court’s ruling that an insured was not entitled to Brandt fees associated solely to the insured’s bad faith and related punitive damages claims.

Based upon this decision, excess insurers should be cognizant of the pitfalls of withholding consents to settlements and should ensure that they have been afforded a reasonable opportunity to analyze the reasonableness of the settlement and adequate time to consider whether to participate or undertake the defense of the insured.