Subsequently Joined Excess Insurer Can Disqualify Judge

By W. Bradley Ney, Esq.

The Home Insurance Co. v. Superior Court (Montrose Chemical Corp. of California)

An excess insurance carrier has interests substantially adverse to the primary carriers' interests for purposes of CCP 170.6, and as such the excess carrier may exercise a peremptory strike against the trial judge despite the fact that the primary carriers had already exercised one.

In 1990, Montrose Chemical Corp. brought an action against its primary liability insurers asking for a declaratory judgment that the insurers had a duty to defend the corporation in certain toxic tort litigation. The case was initially assigned to Judge Wisot, but one of the insurance carriers made a motion to disqualify the judge pursuant to CCP 170.6. The case was subsequently assigned to Judge Kalin.