2019 looks to bring substantive and compelling new developments in insurance law around the country. Take the following, for example:
• The California Supreme Court is poised to decide whether a policyholder must horizontally exhaust all lower-level insurance policies at each coverage level and for each year before it can access its higher-level policies. The trial court held that such complete horizontal exhaustion was necessary to access the higher-level coverage, but the court of appeals disagreed and reversed the trial court in part, holding that it depended on the language of each higher-level insurance policy. The opinion from which the appeal to the Supreme Court was taken is Montrose Chem. Corp. v. Superior Court, 14 Cal.App.5th 1306, 222 Cal.Rptr.3d 748 (2017), as modified (Sept. 8, 2017), review granted, 225 Cal.Rptr.3d 796, 406 P.3d 327 (2017). To date, briefing appears to be complete, but oral argument remains to be scheduled.
• The Connecticut Supreme Court will decide whether the “unavailability of insurance rule” applies under Connecticut law. The rule provides that defense and indemnity costs cannot be prorated to an insured for periods where insurance was unavailable to the insured. The trial court held that the rule applied, and the court of appeals agreed. The opinion from which the appeal to the Supreme Court was taken is R.T. Vanderbilt Co., Inc. v. Hartford Accident & Indem. Co., 171 Conn.App. 61, 156 A.3d 539 (2017), review granted in part, 327 Conn. 923, 171 A.3d 63 (2017). To date, briefing continues, and oral argument remains to be scheduled.
• The Georgia Supreme Court is considering whether correspondence from an insured to its insurer put the insurer on sufficient notice of an opportunity to settle a claim within policy limits. The insurer did not settle the claim before the insured obtained a civil judgment for over five million dollars in excess of the policy limits; and the insured pursued the insurer for that full amount under the theory of negligent or bad faith refusal to settle. The trial court held that the correspondence was too vague to constitute sufficient notice of an opportunity to settle and, therefore, granted the insurer summary judgment. The court of appeals reversed the trial court in part, holding that the correspondence created a genuine issue of material fact for trial. The opinion from which the appeal to the Supreme Court was taken is Hughes v. First Acceptance Ins. Co. of Georgia, Inc., 343 Ga.App. 693, 808 S.E.2d 103 (2017), cert. granted (June 4, 2018). Briefing appears to have concluded in October 2018, but oral argument remains to be scheduled.
Although these are matters of law specific to each state, the decisions will no doubt serve as guideposts in the development of the law in other jurisdictions. Stay tuned . . .