In Edleson v. Travel Insured International, Inc., a divided Ninth Circuit decided an appeal in favor of an insurance company, concluding in an unpublished memorandum that the insured was “not entitled to a return of any part of the premium for the travel insurance policy that he purchased for a trip that was later canceled due to COVID-19 because there was no unearned premium.” The dissenter was uncomfortable resolving the issue without the Supreme Court’s help.
The majority said, “Although California courts have not addressed this issue directly, other courts have reached the same conclusion as a matter of insurance law.” The dissenter, however, wasn’t as sanguine that the appeal was being correctly decided: “Because there is no indication that the California Supreme Court would follow the law of other states on this issue, the persuasive authority relied upon by the majority is of limited value in determining how the issue should be decided under California law.” She advocated for requesting the Supreme Court to answer this question: “If a short-term, single-pay, single-term, and non-renewable travel insurance policy terminates because the insured trip is canceled, is any portion of the premium for that policy an ‘unearned premium’ for purposes of California Insurance Code Section 481.5.”
Occasionally, the Ninth Circuit has changed its mind on rehearing or en banc about referring a state law question to California’s high court. (See here, here, and here.)
The Ninth Circuit hasn’t asked the Supreme Court to answer a question of California law since February, and that request, although granted, was later withdrawn after the parties settled.
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