Insurance Law

Plaintiffs filed declaratory judgment action to determine whether Defendant insurer was obligated to defend class action against its insured and to indemnify eventual settlement of that action. Insured faxed unsolicited advertisements to 3636 recipients, and one recipient filed class action under TCPA. All 3 counts of underlying complaint assert liability arising out of the TCPA. Allegations in underlying complaint were not vague or ambiguous, but were clearly predicated on same facts, and explicitly incorporated same allegations that formed basis of count for TCPA violations. Terms of settlement agreement and judgment entered in underlying case indicate that action was resolved on basis of TCPA liability alone. Policy's TCPA exclusions unambiguously applied to underlying complaint.(CONNORS and HARRIS, concurring.)

Executor of decedent's estate appeals from order denying her motion for summary judgment and granting summary judgment to Defendant insurer in declaratory judgment action. Decedent was riding his riding lawnmower on public street when he was rear-ended by a pickup truck whose driver was insured with policy limits of $30,000. Decedent was insured under auto policy with underinsured motorist liability limits of $100,000 per person, and also under auto policy with Defendant insurer with single underinsured-motorist liability limits of $1 million per accident. Defendant insurer denied coverage under policy exclusion for owned vehicle in underinsured-motorist coverage. The 1995 amendment of Section 143a of Insurance Code allows insurers to exclude unnamed owned vehicles from uninsured-motorist coverage. As underinsured motorist coverage is another form of uninsured motorist coverage, there is no rational basis to reach a different result in context of underinsured-motorist statute. Riding lawnmowers fit within definition of vehicle and motor vehicle in Vehicle Code,  and are not among exceptions listed in either definition.(ROCHFORD and DELORT, concurring.)

Insured, a company which entered into contract with Toll Highway Authority for construction on Tri-State Tollway; and insured entered into subcontract with traffic safety company.  filed declaratory judgment complaint against its insurer, seeking declaration that insurer owed it a duty to defend and indemnify in an underlying wrongful death case for fatal crash involving employee of a subcontractor on construction project. Court properly dismissed with prejudice the counts of insured's complaint relating to its duty to defend. Court properly denied Defendant's amended motion to reconsider, arguing for the first time that it should be allowed leave to replead, as Defendant did not propose amendment until after final judgment, and did not propose any facts to establish viable cause of action. Insured failed to show it suffered any prejudice from insurer's actions, and thus the "mend the hold" doctrine does not apply. (GORDON and LAMPKIN, concurring.)

Plaintiff insurer filed subrogation action against Defendant, seeking recovery for property damage to vehicle owned by its insureds.  Insureds had previously filed personal injury action against Defendant, alleging negligence for collision, which settled for policy limits. At direction of insureds' attorney, a portion of settlement proceeds ($3,333) was tendered to Plaintiff insurer. Defendant argues, in this appeal, that insurer's acceptance of tendered amount was an accord and satisfaction discharging subrogation claim. Check served as partial satisfaction of insureds' claim against Defendant, and was tendered to carry out Defendant's settlement with insureds, not with their insurer. (HUTCHINSON and SPENCE, concurring.)

Plaintiff demanded underinsured (UIM) benefits by mother, on behalf of her daughter, who was driving a motorcycle and was struck by rural mail carrier. Where by payment of $49,900, U.S. extinguished all liability in conjunction with the accident, daughter's insurer is not entitled to UIM setoff in that amount. Mail carrier's insurer paid his $25,000 policy limit for his single limit policy. Plaintiff is entitled to recover $75,000 of the $100,000 under the UIM coverage provided by daughter's insurer, and that insurer cannot deduct the amount paid by the U.S.to extinguish its liability.(SCHWARM and CATES, concurring.)