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Vol. 11 - Issue 4
August 15, 2022


Buss Celebrates Its 25th Anniversary

Lawyers Get On Board With Buss Articles








July 24th marked the 25th anniversary of the California Supreme Court’s landmark decision in Buss v. Superior Court of Los Angeles County (Transamerica Ins. Co.), 939 P.2d 766 (Cal. 1997).  This began in earnest the debate over reimbursement of defense costs.  In Buss, the court held that an insurer had a right to reimbursement of defense costs for claims that are not covered under the policy. The court concluded that the insurer’s right of reimbursement is one that is implied in law, to prevent unjust enrichment by the insured of defense costs for claims that were not covered by the policy, and, hence, for which the insured paid no premium.

Policyholders generally maintain that insurers may not defend, and then seek reimbursement of defense costs following a determination that there was no defense owed, as the policy does not include such right.  And, further, the policy cannot be modified by a reservation of the right to seek reimbursement.  Policyholders also view reimbursement of defense costs as a backdoor narrowing of the duty to defend.

Insurers generally say the opposite: since the insured accepted the defense, subject to the insurer’s reservation of the right to seek reimbursement, the right exists.  Insures also assert the Buss rationale of unjust enrichment.

In any event, the debate has raged and courts are pretty much split on the issue.  I have not looked lately at the exact scoreboard, but no side has a big margin of victory.

The arrival of Buss brought something else – articles about Buss.   It is a crowded field of articles by insurance commentators over the right way to address the reimbursement issue. 

One thing about these articles – some authors took the opportunity to take a bus ride in search of their titles.  As pun opportunities go, this is about as low-lying fruit as it gets.  Consider these articles that have addressed Buss and reimbursement of defense costs:

Insurer reimbursement: Get on the “Buss”
Gordon & Reese, March 2012

Don’t Miss The “Buss”
Gary W. Osborne and Dominic Nesbitt, Osborne & Nesbitt

Buss Stop: A Policy Language Based Analysis
Angela Elbert and Stanley Nardoni, Connecticut Insurance Law Journal, 2006-2007

Next Stop for Buss: California Appeals Court Addresses Coverage for Attorney’s Fees
Awarded for the Recovery of Uncovered Damages
Randy Maniloff, Binding Authority, 2009 [GUILTY!]

The Insurer’s Right to Seek Reimbursement: Will The Buss Stop in Oklahoma?
Melinda Kirk, Tulsa Law Review, 2000

Nevada Gets on the “Buss,” Adopts Insurer Right of Reimbursement for Uncovered Defense Costs
Andy Downs, Bullivant & Houser, 2021

Does Buss Stop Here? California’s Insurer Right to Recoup Rejected by Other State Courts
David O’Neill,, PolicyFind, 2015

Howard on Missing The “Buss”: Pennsylvania Supreme Court Refuses to Recognize Insurers' Right to Recover Defense Costs Expended With Respect to Non-Covered Claims
Ted Howard, Wiley Rein, 2010

For anyone considering writing an article on Buss, do not fret.  There are still plenty of good titles available.  Here are a few that I came up with.  Feel free to use one.  No need to give me credit.

Policyholder Counsel Says Buss Isn’t Fair
Wheels on the Buss Go Round and Round: Another Court Allows Reimbursement of Defense Costs

Hop Off the Buss Gus: Paul Simon Challenges Insurer’s Right to Reimbursement of Defense Costs

Court Throws Policyholder Under the Buss: Allows Reimbursement of Defense 

Hey Buss Driver, I’ll Keep The Change: Policyholder Fights Insurer’s Reimbursement Claim [For you Bruce fans out there.]

Court Gets On Board With Buss And Allows Reimbursement Of Defense Costs

No Magic Buss For Insurer: Court says No To Reimbursement

Double Decker Buss: Policyholders Lose Two Reimbursement Cases On The Same Day


That’s my time. I’m Randy Spencer.

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