Home Ins. Co. v. Superior Court

Latham & Watkins, David L. Mulliken, San Diego, Diana Strauss Casey, and Marc D. Halpern, Menio Park, for Real Party in Interest.

No appearance for Respondent.

MIRIAM A. VOGEL, J.

In 1990, an insured sued its primary insurers to determine whether they had a duty to defend their insured in an environmental clean-up action. Over the course of 11 years and long after one of the primary insurers exercised a peremptory challenge against the judge to whom the case was originally assigned (Code Civ. Proc., § 170.6), the insured settled with all of the primary carriers, dismissed them from this action, and filed an amended complaint in which it added its excess insurer as a defendant and asked for a determination that the excess carrier had a duty to indemnify its insured. The excess insurer answered and filed a peremptory challenge against the judge to whom the case had been re-assigned in 1993. The insured objected, claiming the excess insurer was on the same "side" as the primary insurers and that the defense "side" had used its peremptory challenge. The trial court agreed with the insured and denied the motion for disqualification. In response to the excess carrier's writ petition,…