Your clients have been sued by their insurance company for Declaratory Relief. The insurer asserts that there is no coverage under your clients’ liability insurance policy for a claim made against them. In deciding how to proceed, there are a few things to remember in dealing with insurance litigation. First, the duty to defend is a legal question based upon the “potential” that the lawsuit against your client could result in damages covered by the insurance policy. Montrose Chemical Corp. v. Superior Court (1995) 6 Cal. 4th 287, 300 (pdf). For the duty to defend, therefore, think summary judgment, rather than trial. Second, for indemnity (actual coverage): is the carrier defending or not? With regard to indemnity, whether the insurance company is defending affects the burden of proof. Ultimately, the insured should be prepared to prove, in order to recover indemnity or settlement costs, that their liability is in fact covered by the insurance policy.
Continue Reading The First 120 Days of Insurance Litigation

As a discovery referee, I normally come into cases when there already is a problem. Either discovery in the case is out of control, or the antagonism among counsel is so great that the Law and Motion Judge is done dealing with the parties. In many instances, I see an all out war between counsel, with discovery being used as a weapon. There is no rhyme or reason to the 105 special interrogatories that were served, the 200 categories of documents being demanded or the 20 depositions that have been noticed. The meet and confer process has broken down into a rampage of insults. Yet nobody has bothered asking the demanding party the fundamental question “Why do you need this?” When that question is finally posed by me, too frequently that counsel cannot answer the question. In such circumstances, it is clear to me that the attorneys have no idea what direction they want to case to proceed, no plan of attack and no idea what they are trying to accomplish. In other words–No Discovery Plan!
Continue Reading Do You Have a Discovery Plan?