A Tale of Two “Refusal to Consent to Settlement” Cases

June 2018

June 2018
A Tale of Two 
“Refusal to Consent to Settlement” Cases

Published: ABA TIPS Excess, Surplus Lines and 
Reinsurance Newsletter

Timothy Thornton, Jr.
A pair of decisions last year reached different results where an excess insurer failed or refused to consent to a settlement by the insured. In a Ninth Circuit Court of Appeals case, an excess insurer monitoring the underlying lawsuit was found liable after it refused to fund a settlement or to timely take over the defense. In a First Circuit case, the excess insurer was found not liable, not because it failed to consent to a reasonable settlement; but rather because of the structure of the underlying settlement.

                            Read the full article.

So You Think You Know The Law?

True or False?
The “no action” and “no voluntary payment” clauses create absolute rights for excess insurers to veto settlements.

True or False? 
An excess insurer has no duty to indemnify under a Settlement Agreement it does not agree to because only a judgment can “legally obligate” a party to pay “damages.”

True or False? 
When a primary insurer and the insured propose a settlement that includes payment by the excess insurer, the excess insurer must agree and pay the settlement.

True or False? 
A primary insurer must exhaust the full limits of its coverage before an excess insurer can be required to contribute to a compromise settlement or judgment.

Gray·Duffy Bolsters Real Estate Practice with Addition of Jesshill Love as Of Counsel 

Jesshill Love
Gray·Duffy has strengthened its expanding real estate practice with the addition of Jesshill Love, who joins the firm’s Redwood City office as Of Counsel.
Mr. Love’s practice focuses on commercial and residential real estate, and includes extensive litigation and transactional experience. As lead counsel in hundreds of successful cases, Mr. Love has represented clients in matters involving real estate partnership resolutions and dissolutions, easements, fraud and various real estate related matters. He has served as counsel to syndicated and private equity funds, as well as developers in conjunction with real estate developments.
Mr. Love has been recognized on the list of Northern California Super Lawyers and received the distinguished AV Preeminent Rating from Martindale-Hubbell.
Prior to joining Gray·Duffy, Mr. Love was Chair of the Real Estate Practice Group for Ropers, Majeski, Kohn & Bentley and the firm’s Chief Operating Officer. Mr. Love has served as a real estate referee for San Mateo County Superior Court and is also an active real estate investor. Having purchased his first rental property at 19, he is now the CEO of three active real estate portfolios in California.
Mr. Love is a member of the State Bar of California and is admitted to practice in the United States District Court for the Central, Eastern, Northern and Southern Districts. He obtained a B.A. from Connecticut College, an M.B.A. from Golden Gate University and J.D. from Golden Gate University School of Law. Mr. Love is fluent in Spanish and literate in French.

Attorney Spotlight: Nathan Lee

Nathan Lee
Attorney Nathan Lee joined Gray·Duffy in 2012 and focuses his practice on civil litigation matters, including personal injury
insurance coverage
  and business-related disputes. He has particular expertise pertaining to asbestos issues and also represents subcontractors in cases involving construction-related claims and defects.

Notably, Nathan, along with Partner Richard Williams, led a team that successfully settled a nationwide class action against a major food manufacturer/distributor for approximately 1% of the total amount claimed. After several years of extensive written and expert investigation and discovery, two lengthy mediations and prior to the certification of the case as either a California or a nationwide class action, the case was settled in its entirety.
With a focus on educating clients about issues that may impact their business and livelihood, Nathan has authored articles in leading industry publications, including “Best Methods for Setting Aside a Default Judgment” and 
Determining Loss of Earnings Claims During a Despondent Economy.”
Nathan obtained his J.D. from Southwestern Law School where he received the Hon. Tom Bradley and Hon. Gilbert Lindsay Scholarship. He earned a B.A. in Political Science and Communications from the University of California, Davis.
Nathan is admitted to the State Bar of California and the United States District Court for the Central District and Northern District of California.
Outside of the office, Nathan dedicates his time to family activities with his wife and their 2-year-old and 5-year-old.
In the News
Partner Timothy Thornton Selected as a 2018 Southern California Super Lawyer
Partner Timothy Thornton has been selected for inclusion on the 2018 Southern California Super Lawyers list for his work in the area of Insurance Coverage. Timothy has been named a Super Lawyer for six consecutive years.

Super Lawyers is a rating service of the top five percent of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
Erin Tenner Speaks at National Association of Dealer Counsel Conference
Partner Erin Tenner
spoke on the panel “Latest Legal Trends in Sexual Harassment Law and What Attorneys Advising Auto Dealers Need to Be Thinking About” at the 14th Annual National Association of Dealer Counsel (NADC) Member Conference. The panel provided an overview of sexual harassment law, and discussed legal trends and risks to dealers. Speakers also addressed best practices on policies, training, investigations and accountability. 

The presentation was so well received, Ms. Tenner has been invited to expand the talk and present at the 2018 NADC Fall Conference in October.
Timothy Thornton 
“Extra Contractual Insurance Claims” at 
ABA TIPS 4th Annual Conference
Partner Timothy Thornton spoke on the panel “Extra Contractual Insurance Claims: Preparing and Responding to Policy Limit and Time Demands” at the 4th Annual American Bar Association Tort Trial & Insurance Practice Section (TIPS) conference. The TIPS conference took place May 2-5, 2018 at the Loews Hollywood Hotel in Los Angeles.
Gray·Duffy Sponsors Bragg Companies’ 3rd Annual Charity Golf Tournament

Gray·Duffy participated in and sponsored Bragg Companies’ Annual Charity Golf Tournament on April 28, 2018. Proceeds of the event went to Long Beach Ronald McDonald House, the Long Beach Education Foundation and For The Child in Long Beach.
Real Estate Corner
Is the Buyer’s Offer Sharp Enough? 

Steven Wood
When the residential housing market overheats, with shrinking inventories, multiple offers, bidding wars and sizzling sale prices, buyers often take desperate
measures. Not satisfied with traditional contractual constraints, such buyers may surrender their right to choose the ultimate sales price and approve their agent’s submission of a “sharp offer.”

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Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.