Declaratory Relief Was Neither Unnecessary Nor Improper Under The Circumstances
Post 5423
Posted on August 13, 2026 by Barry Zalma
In Fox Paine & Company, LLC, et al. v. Twin City Fire Insurance Company et al., S287404, Supreme Court of California (July 27, 2026) Fox Paine & Company, LLC, Saul Fox, and related entities sued excess insurers after a long-running dispute between the Fox and Paine factions generated substantial litigation costs.
FACTS
The issue arises here after a dispute between former colleagues at an investment firm led to lengthy — and expensive — litigation.
Insurance is sometimes procured in a series of layers, with an insured acquiring a primary insurance policy that provides an initial layer of coverage. The insurance tower included a $10 million primary policy followed by four $10 million excess layers.
Plaintiffs allege that:
1. they suffered a loss;
2. the loss is covered by specific policy provisions described in the complaint;
3. they submitted "virtually all of their invoices" to defendants, seeking reimbursement; but
4. defendants have failed to reimburse them for these losses.
LAW
In the insurance context, the implied covenant of good faith and fair dealing prevents an insurer from impairing the insured’s right to receive policy benefits.
DISCUSSION
Although there is a categorical rule requiring an insured to plead actual exhaustion of all underlying insurance before seeking declaratory relief against excess insurers the Court reasoned that insurance coverage disputes often involve contingencies, and the mere existence of an exhaustion contingency does not make the dispute hypothetical.
Requiring insureds to litigate sequentially through each layer of an excess tower would create hardship, inefficiency, and a risk of inconsistent rulings, particularly where follow-form policies require interpretation of common coverage language.
ANALYSIS
The Court’s decision draws a distinction between attachment for payment and justiciability for adjudication. Actual exhaustion remains relevant to whether an excess insurer must presently pay benefits, but it is not an absolute prerequisite to adjudicating coverage obligations or bad-faith claims.
CONCLUSION
On remand, the Court of Appeal must determine whether plaintiffs adequately pleaded covered losses sufficient to create an actual controversy as to each excess policy and whether the bad-faith allegations satisfy the proper standard.
If the pleadings are deficient but curable, plaintiffs should be given leave to amend.
The Supreme Court reversed the Court of Appeal and remanded. It held that lack of actual exhaustion is not, by itself, fatal to claims for declaratory relief or tortious breach of the implied covenant of good faith and fair dealing against excess insurers.
The Supreme Court concluded that plaintiffs' inability to allege the exhaustion of all coverage underlying the St. Paul and Liberty Mutual policies is not by itself fatal to their claims for declaratory relief against these insurers.
The Supreme Court remanded the case to the Court of Appeal to reevaluate the adequacy of plaintiffs' allegations as they bear upon the existence of an actual controversy. Once the appropriate standard has been identified that court shall determine whether it has been met.
BAD FAITH
It has long been recognized in California that '[t]here is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement. An insurer's denial of or delay in paying benefits gives rise to tort damages, but only if the insured shows the denial or delay was unreasonable. Because the duty attaches at the inception of the insurance agreement, wrongful conduct by the insurer from that point forward can support a claim for bad faith.
Allegations that an excess insurer paid rival claimants a disproportionate share of the benefits available under its policy prior to the insureds' exhaustion of the primary policy stated a viable claim for bad faith.
Plaintiffs Need Not Plead Prior Exhaustion Of All Underlying Insurance To State A Claim For Bad Faith
Plaintiffs inability to plead that all underlying insurance has already been exhausted is not by itself fatal to their claims for bad faith.
But an insurer may breach the implied covenant of good faith and fair dealing while remaining in technical compliance with the express terms of its policy; indeed, that is the very reason for the implied covenant's existence.
ZALMA OPINION
When no insurer is willing to take on the entire risks of loss faced by an insured the insured buys a primary policy and a tower of excess insurance policies from multiple insurers all of whom promise to respond after each layer of insurance is exhausted by payment of claims or claims and defense clauses. When the excess insurers did not respond in accordance with their policies they claimed no coverage because the other insurers had not exhausted their limits. The California Supreme Court disagreed and allowed the declaratory relief action to go forward creating a new way to get to excess insurers without exhausting the primary and other insurers limits to seek declaratory relief.
(c) 2026 Barry Zalma & ClaimSchool, Inc.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to my substack at https://gbarryzalma.substack.com/subscribe
Go to X @bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/account/content?type=all; Go to Barry Zalma on YouTube- https://Cwww.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the InsuranceClaims Library – https://lnkd.in/gwEYk.
Insurance Expert May Not Testify to Speculative and Contains Unsupported Conclusions.
Posted on September 18, 2026 by Barry Zalma
See the full video at and at https://rumble.com/v7fmifw-expert-may-only-testify-to-what-experience-supports.html
In Michele A. Over, and The Estate Of Paul R. Over v. State Farm Mutual Automobile Insurance Company, and State Farm Fire And Casualty Company, Civil Action No. 23-cv-02243-PAB-STV, United States District Court, D. Colorado (September 14, 2026) Michele and Paul Over sued State Farm Fire and State Farm Auto over hail-damage and stolen-vehicle claims.
The operative dispute concerned State Farm Auto’s motion to exclude or limit opinions from plaintiffs’ insurance-industry expert, Aaron Castillo. Castillo.
Law
The proponent of expert testimony must establish by a preponderance of the evidence that an expert is qualified and that the opinions are helpful, sufficiently grounded, and reliably derived and applied. Experience-based opinions must explain how the...
150 Months in Prison for Tax Fraud
Post 4846
Posted on September 17, 2026 by Barry Zalma
See the full video at https://lnkd.in/g8rh3JBX and https://lnkd.in/gmkdy-9C, In United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
In United States Of America v. Thomas Addaquay, United States Of America v. Thomas Addaquay, Nos. 25-10609, 25-10611, United States Court of Appeals, Eleventh Circuit (September 9, 2026) the Eleventh Circuit affirmed all challenged convictions, the 150-month aggregate sentence, and the challenged $4,123,474.55 restitution award.
FACTS
Thomas Addaquay controlled United Consolidated Accounting and Business Services (UC), nominally a check-cashing business.
The government proved a three-stage tax-refund scheme that converted the resulting refund checks into usable funds through ...
Major Fraud Perpetrator Asserts Fifth Amendment Privilege to Avoid Prosecution
Post 5489
Posted on September 14, 2026 by Barry Zalma
Fraudster Refuses to Answer Questions About His Alleged Fraud
See the full video at https://lnkd.in/gvicAMDr and at https://lnkd.in/gvicAMDr
In Great American Insurance Co. v. Gemstone Property Management, LLC, et al., No. 23-cv-9100 (LJL), United States District Court, S.D. New York (September 8, 2026) Great American Insurance Company alleged that it was defrauded through a scheme in which Subin Associates, LLP recruited individuals to stage construction-site injuries, arranged unnecessary medical treatment and litigation funding, and pursued fraudulent personal-injury claims.
Luis Manuel Garcia Salcedo, resulted in a $6 million settlement. Non-party Jose Hernandez allegedly worked as an assistant manager at Subin, operated Hernandez Associates, and owned litigation-funding companies that shared office space with Subin and provided services to its clients.
After Great American ...
Sentence for Stealing from Veterans Administration Reasonably Considers State Insurance Fraud & Arson Convictions
Post 4863
Posted on October 14, 2026 by Barry Zalma
In United States Of America v. Anthony Curtis Brewer, No. 26-10745, United States Court of Appeals, Eleventh Circuit (October 8, 2026) Anthony Curtis Brewer became the fiduciary for an incapacitated recipient of Department of Veterans Affairs survivor benefits and agreed to use her funds solely for her care and support without commingling them with his own.
The VA determined that he misused $67,232.33 and removed him as fiduciary in 2022. Brewer pleaded guilty to theft of more than $1,000 in government property under 18 U.S.C. § 641. At sentencing, the district court attributed $53,567 in loss to him, producing an advisory Guidelines range of 15 to 21 months.
Citing the victim’s vulnerability, Brewer’s attempts to avoid responsibility, and his other fraudulent conduct — including state convictions for arson and insurance fraud — the court ...
Title Insurance Only Insures Real Property
Posted on October 13, 2026 by Barry Zalma
When a Seller Advised it Could Not Obtain Title to the Home Fraud Can’t be Proved
A Manufactured Home is Personal Property Until it Becomes Real Property
Post 4862
In Dale Johnson and Rose Johnson, Husband and Wife v. Stewart Title Guaranty Co., and Lennar Mortgage, LLC; Low Va Rates, LLC; Sandpoint Title Insurance, Inc.; Village Capital & Investment, LLC; and David Cassel, Engineer Agent; and Unknown Does 1-50, inclusively, No. 53126, Court of Appeals of Idaho (October 9, 2026) Dale and Rose Johnson purchased Idaho real property in 2012 with a manufactured home on it. Their purchase addendum acknowledged that the seller could not obtain title to the home, that evidence of title and an ALTA-7 endorsement might not be available, and that they accepted the home “as is.”
In 2020, after a HELOC application was denied, the Johnsons learned that the home had been wrecked and decertified in 2004 and that its 2006 conversion to real ...
Denial Of Mental Health Diversion And Probation Condition Were Affirmed
Posted on October 9, 2026 by Barry Zalma
Post 4860
In The People v. Nicholas Daniel Stiles, A173483, A173646, California Court of Appeals, First District, Second Division (September 29, 2026) Nicholas Daniel Stiles pleaded no contest to one count of insurance fraud arising from his purchase of automobile insurance after a June 2021 collision, and to grand theft arising from an April 2024 incident at a 7-Eleven.
In both cases, the trial court suspended imposition of sentence and placed him on two years’ probation. Before the pleas, Stiles sought mental health diversion in both matters and filed a written motion seeking substitute appointed counsel. The diversion applications were denied, and the court never held a hearing on the motion.
LAW
Penal Code section 1001.36 permits pretrial mental health diversion when a defendant is eligible and suitable and the proposed treatment will meet the defendant’s specialized needs; denial is reviewed for ...
