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California Law: The Effect of an Insured's Failure to Comply with Policy Conditions
Most insurance policies, whether third-party liability policies or first-party policies, include a wide range of conditions. While different policies contain different conditions, fairly common conditions include provisions that:
- The insured promptly notify the insurance carrier of any claim or suit;
- The insured not voluntarily make a payment or incur any expense without the carrier's consent;
- The insured transfer any rights to recover all or part of a payment that the carrier has made to the carrier and do nothing after a loss to impair those rights;
- The insured cooperate with the carrier in the investigation, settlement, or defense of a loss, claim, or suit; and
- The insured authorize a carrier to obtain records and other information and provide the carrier with copies of demands, notices, summonses, and legal papers received in connection with a claim or suit.
In many instances, an insured does not comply with the terms of every condition stated in a policy. Sometimes this is because the insured is not aware of the particular requirements of the policy, sometimes it is because a carrier has not required (or has waived) compliance, and sometimes it is because it is simply not practical, or possible, to comply with all of the requirements of the conditions. In many of these circumstances, insurance carriers reserve a right to deny coverage, or deny coverage on the ground that an insured has failed to comply with one or more conditions in the policy. However, whether or not an insured has complied with all of the particulars of a condition in a policy does not determine whether the insured actually forfeits coverage under the policy.
The Actual and Substantial Prejudice Requirement
California courts long have held that '[a]n insurer may assert defenses based upon a breach by the insured of a condition of the policy such as a cooperation clause, but the breach cannot be a valid defense unless the insurer was substantially prejudiced thereby.' Campbell v. Allstate Ins. Co., 60 Cal. 2d 303, 305-06, 32 Cal. Rptr. 827 (1963). The Campbell court so held even though the insured had failed to cooperate with its carrier. It did so because the carrier had failed to show that it was prejudiced by the insured's failure to cooperate.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.