Late last week, we inaugurated a new biweekly series of posts on The Appellate Strategist analyzing the American Law Institute’s new Restatement of the Law of Liability Insurance. Since this week we’re beginning a new series taking a deep dive on the Court’s docket in various important areas of law, I thought we’d begin with insurance law cases. Today, we’re looking at how many insurance cases the Court typically decides in a year; how those cases shake out between plaintiff or defendant insurers; how many primarily involve coverage issues, liability issues, or something else; and most importantly of all – what is the insurance industry’s won-loss record at the Court since 1990. One caveat before we begin – obviously, insurers are heavily involved in a great many more cases than just the ones in which one or more insurer appears on one side or the other of the “v.” For our purposes here, we’re concentrating on litigation with an insurance company as a named plaintiff or defendant.
In Table 836, we track (1) the yearly number of insurance law cases decided by the Court; (2) the number that involved insurer plaintiffs; and (3) the number involving insurer defendants for the years 1990-1999. Of course, from time to time the Court decides insurance law cases with one or more insurers as both plaintiff and defendant – that’s why, for some years, adding our data for plaintiffs and defendants comes up with more cases than our data for total number of cases.
The trend level of total cases for this period was roughly three to four a year, with not infrequent spikes to as high as 6 (1992 and 1997) or valleys to zero (1996). For the decade, the Court decided thirty-two insurance cases. Plaintiff insurers were relatively rare – only thirteen for the decade, and none at all in 1994, 1996, 1998 or 1999. Insurers were defendants nineteen times.
The insurance docket picked up a bit of speed from 2000 to 2009, as the Court decided thirty-six insurance cases. The yearly trend number was about the same – three to four cases a year – with spikes to six in 2001 and 2005. Plaintiff insurers were comparatively rare – only nine in the 36 cases. Twenty-eight cases involved insurer defendants. Defendants cases were relatively steady throughout the decade.
Between 2010 and 2018, on the other hand, the Court’s insurance docket has been down. For those years, the Supreme Court has decided only eleven cases – five involving insurer plaintiffs, six involving insurer defendants.
Now, we go back to the beginning and divide the cases into matters primarily involving coverage issues, matters primarily about liability, and issues that don’t fit neatly into either category.
In the nineties, coverage cases heavily outnumbered insurance cases primarily involving liability issues – 21 coverage, 11 liability.
Between 2000 and 2009, coverage was virtually the only thing on the Court’s insurance law docket. In all, twenty-eight of the Court’s insurance cases were primarily about coverage issues. Only four involved liability questions, and another four were “other.”
As noted above, insurance cases have been rare on the Court’s docket during this decade, but coverage cases still dominated – ten coverage, one liability and no “other.”
Next, we arrive at the most crucial number of all: insurers’ winning percentage. For the 1990s, insurers won twenty cases and lost twelve – a winning percentage of 62.5%.
One hears fairly often in the defense bar that California is not an especially friendly venue for insurers. As the membership of the Court changed over the past two decades, we see some support for that claim. Between 2000 and 2009, insurers’ won-loss record dropped below .500 – 16 wins, 20 losses, for a winning percentage of 44.44%.
Things have ticked up only slightly in the most recent decade. The Court has decided eleven insurance cases, with the insurers winning five and losing six – a winning percentage of 45.45%.
Tomorrow, we’ll continue this work by consulting the individual Justices’ voting records in insurance law cases.