In its recent decision in ACE Capital v. Eplanning, Inc., 2013 U.S. Dist. LEXIS 32613 (E.D. Cal. March 8, 2013), the United States District Court for the Eastern District of California had occasion to consider California rules concerning settlement of competing claims to limited insurance proceeds, particularly in a situation where some of the claims are not covered.
Underwriters insured Eplanning under a $5 million claims made and reported professional liability policy. A number of claims were made and reported during the policy period, the total of which far exceeded the policy’s limit of liability. While Underwriters initially undertook the defense of Eplanning and settled some of the underlying claims, it eventually interpleaded the remainder of the policy proceeds - just in excess of $300,000 - into the court to be allocated among the various remaining claimants. At issue in the interpleader was whether Underwriters’ conduct was in bad faith, pursuant to Schwartz v. State Farm, 88 Cal.App.4th 1329 (2001), for not having commenced its interpleader earlier. This bad faith claim, however, was asserted by underlying plaintiffs who had brought four individual suits not covered under the policy since their claims were first made after the policy’s expiration. These plaintiffs, as the assignees of the insured, argued that an insurer can still act in bad faith, even where no policy benefits are ultimately due, “where there are numerous covered claims asserted against the policy” and where there is a potential for coverage. Thus, plaintiffs argued that Underwriters committed bad faith in its settlement of other claims, and that this bad faith cause of action was assignable notwithstanding the fact that plaintiffs’ underlying suits were not otherwise covered under the policy.
The court disagreed, noting that given the claims made and reported nature of Underwriters’ policy, and given the fact that the four suits brought by underlying plaintiffs were commenced after the policy’s expiration, there never was a potential that these particular claims would be covered under the policy. The court concluded that the decision in Schwartz only extended to claims for which insurers can have a coverage obligation and where this coverage obligation is breached. Thus, Underwriters were not required to consider plaintiffs’ four suits in making its decisions concerning settlement and interpleader. The court agreed that Underwriters could have no bad faith exposure to underlying plaintiffs given the correctness of Underwriters’ disclaimer of coverage. As the court explained, “an insurer cannot be held liable on a bad faith claim for doing what is expressly permitted in the agreement.”