Low, Ball & Lynch’s
WEEKLY LAW RESUME
September
22, 2005 Issue By: Ray Coates
Coverage – Statute of Limitations
– Suit Against Excess Carrier
Eaton Hydraulics, Inc. v.
Continental Casualty Company, et al.
Court of Appeal, Second Appellate
District
(September 1, 2005)
Established case law provides that the statute of limitations in a
general liability insurance case accrues when the insurer refuses to defend the
insured in the underlying litigation. However, the statute is tolled
until the underlying action is terminated by final judgment. This case
examined whether a suit against primary insurers, which designated excess
insurers as DOE defendants, has any bearing on the accrual or tolling of the
statute of limitations as to the excess insurers.
Eaton Hydraulics, Inc. filed this lawsuit against its insurers, including
Continental Casualty Company and CNA Casualty of California (“CNA”) on
September 28, 2001. CNA was one of the excess, or umbrella,
insurers. The suit alleged that Eaton’s primary and umbrella insurers
refused to defend and indemnify it with regard to an underlying environmental
lawsuit brought against Eaton and others by Federal and State government
entities. The claims arose in 1990 and culminated in a lawsuit filed
against Eaton in 1999, which was globally settled in August of 2000.
Eaton sued its primary insurers on April 11, 2026 in a prior lawsuit and
included excess insurers as DOE defendants. That case was eventually
dismissed. CNA demurred to Eaton’s first amended complaint, contending
the suit was barred by the statute of limitations. The trial court
sustained the CNA demurrer and dismissed Eaton’s complaint as to CNA.
Eaton appealed.
The Court of Appeal reversed. The Court noted that a cause of action
for refusal to defend accrues when the insurer refuses to defend. The
Court found it impossible to determine from the allegations of the underlying
complaint when Eaton’s cause of action against CNA accrued. This was
because the lawsuit filed in 1996 did not name CNA and CNA was never served as
a DOE defendant in that case. There was no showing that CNA had refused
to defend at the time the first lawsuit was filed.
Second, the Court stated the duty to defend is continuing, so that the
limitations period is equitably tolled from the time the cause of action accrues,
that is upon refusal to defend, until the underlying lawsuit is terminated by
final judgement. Thus, while a lawsuit can be commenced once an insurer
has refused to defend, an insured is not obliged to do so. The insured
has the option to wait until the underlying suit is concluded. Thus the
fact that Eaton had sued its primary insurers and unknown excess insurers was
of no importance. The issue depended upon whether and when CNA refused to
defend Eaton, not on when Eaton sued other insurers.
Third, CNA was an umbrella or excess insurer. Its obligation to defend
did not arise until the primary insurance was exhausted. A primary
insurer’s refusal to defend does not trigger an excess insurer’s duty to
defend. Thus, CNA’s duty to defend required exhaustion of the
underlying limits prior to tender of defense and indemnity. The statute
would then begin to run upon denial of that tender.
Since neither the amended complaint nor the judicially noticed underlying
complaint disclosed that the statute of limitations had run, the trial court
erred in sustaining CNA’s demurrer to the amended complaint. The
judgement was reversed with orders to overrule the demurrer.
COMMENT
This case is interesting for its discussion of the statute of limitations on
a refusal to defend case by an excess carrier. We recommend reading it
for that reason.
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