Last time, we reviewed how the insurance industry has fared over the past twenty-nine years as a party to litigation at the California Supreme Court. This time, we’re turning to the voting records of individual Justices: irrespective of whether the insurer was plaintiff or defendant, whether the case involved coverage or liability issues, and whether the insurer ultimately won or lost, how often did each Justice vote for an insurer party.
In Table 845, we report voting for insurer parties between 1990 and 1999. Although in most years, the number is limited to one or two votes, what stands out here is 1992, when the Court decided six insurance law cases. Chief Justice Lucas and Justices Panelli, Arabian and Baxter supported the insurer’s position all six times, and Justice George did so in five cases.
In Table 846, we report votes against insurer parties over the same period. In many of the ten years, these numbers trend a bit higher than votes for – Justices Broussard and Mosk voted against insurers four times in 1990, Justices Kennard, Mosk, George and Wedegar did so three times in 1995, and Justices Kennard, Mosk and Baxter voted against insurers four times in 1997.
Next, we report yearly votes for insurer parties between 2000 and 2009. Justices Kennard and Werdegar supported insurer positions four times in 2001. All the active Justices voted with insurers three times in 2003. In 2005, Chief Justice George and Justices Baxter and Moreno voted the insurers’ position in four cases. In 2009, every active Justice – Chief Justice George and Justices Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan – supported insurers three times.
Votes against insurers were relatively constant for these years, except for 2004, when the Chief Justice and Justices Werdegar and Moreno voted against insurers three times. The following year, Justice Kennard sided against insurers four times.
As we noted in our last post, insurance law cases have been quite rare in the Court’s docket, so of course votes for and against have been flat too. For the entire period, Justices Chin and Corrigan supported insurers in four cases each, and Chief Justice Cantil-Sakauye and Justices Werdegar and Liu did so in three cases apiece.
Votes against insurers are reported below. Justices Chin and Corrigan voted against insurers seven times apiece. Justice Werdegar did so six times. Chief Justice Cantil-Sakauye voted against insurers’ positions in five cases, and Justices Kennard, Baxter and Liu did so four times.
Since 1990, insurers have had a win-loss record of 41-38 at the Supreme Court, for a winning percentage of 51.9%. We calculate the percentage of total cases in which each Justice voted the insurer’s position. We then divide the Justices into two groups: Justices who voted the insurers’ position more often than the Court as a whole, and Justices who were less likely to support insurers’ position than the majority.
During 1990 (his last year on the Court), Justice Kaufman supported insurers in 100% of his cases. Justice Arabian supported insurers 70% of the time. Two Justices were in the sixties – Justice Panelli at 64.71% and Chief Justice Lucas, 63.64%. Four Justices were narrowly above the courtwide winning percentage: Justice Baxter at 58.82%, Justice Brown, 56.67%, Justice Chin, 54.55% and Chief Justice George at 53.13%.
Finally, below we show the Justices’ rates who were less likely than the courtwide average to vote for the insurers’ position. Justice Moreno supported insurers half the time. Six Justices were in the forties: Justice Kennard at 47.3%, Justice Werdegar, 46.55%, Justice Corrigan, 45.46%, Justice Liu, 42.86% and Justices Kruger and Cuellar, 40%. Chief Justice Cantil-Sakauye has supported insurers in 37.5% of their cases, and Justice Mosk did so 31.58% of the time. Justice Eagleson supported the insurers’ position in 25% of his cases, and Justice Broussard never did.
The Justices’ voting records in insurance law cases suggest that the industry’s below-.500 record is likely to continue for the next several years. Only Justice Chin among the active Justices voted for insurer parties at a higher rate than the Court, while the Chief Justice and Justices Corrigan, Liu, Kruger and Cuellar were all less likely to vote for insurers than the Court.
Join us back here next week as we review parties’ record in another area of law.