California Court of Appeal

In an insured's petition for a writ of mandate challenging a pretrial order that decided three stipulated legal questions concerning the scope of the duty to defend under a liability insurance policy, the petition is granted where: 1) the umbrella coverage was primary coverage and the existence of a duty to defend with respect to that coverage did not depend on the exhaustion of any underlying insurance; 2) plaintiff need not show that the claims were actually covered under the policy in order to establish a duty to defend with respect to the primary coverage provided by the umbrella provision, but need only show a potential for coverage; and 3) a "retained limit" or "self-insured retention" provision in a policy providing primary coverage relieves the insurer of the duty to provide an immediate "first dollar" defense only if the policy expressly so provides, and as such, plaintiff need not have incurred a liability in excess of the retained limit described in the policy before the insurer's duty to defend could arise.

Appellate Information

• Decided 06/11/2010
• Published 06/11/2010

Judges

Court

• California Court of Appeal

Counsel

• For Appellant:
  
• Covington & Burling, Donald W. Brown, Wendy L. Feng and Stephen E. George for Petitioner., Duane Morris, Ray L. Wong, Paul J. Killion, Michael J. Dickman and Cyndie M. Chang for Real Party in Interest.


• For Appellees:
  
• No appearance for Respondent.