Court of Appeals Discusses the Difference Between “Claims-Made” and “Occurrence-Based” Insurance Policies
May 31, 2021 —
Garret Murai - California Construction Law BlogAs most contractors know, scope, price and time are the “big” three in any construction contract. Nearly as important, however, are the insurance provisions. Patricularly, when things go bad on a construction project. As the next case, Guastello v. AIG Specialty Insurance Company 61 Cal.App.5th 97 (2021) discusses, the difference between “claims-made” versus “occurrence-based” coverage can be extremely important.
The Guastello Case
In 2003 and 2004, subcontractor C.W. Poss Inc. built retaining walls in the Pointe Monarch housing development in Dana Point, California. Poss performed all related excavation, ground and grading work.
In 2006, Thomas Guastello purchased a home in the development, and in January 2010, a retaining wall close to his lot suffered a massive failure that causing over $700,000 in damages.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
First Circuit Rules Excess Insurer Must Provide Coverage for Fuel Spill
January 18, 2021 —
Syed S. Ahmad & Adriana A. Perez - Hunton Andrews KurthThe First Circuit recently held that a “Special Hazard and Fluids Limitation Endorsement” was ambiguous and therefore there was excess coverage for a fuel spill that occurred after a tanker-truck overturned.
In Performance Trans. Inc. v. General Star Indem. Co., the First Circuit reversed the District Court’s grant of summary judgment in favor of General Star Indemnity Company. The District Court held that the excess policy General Star issued to Performance Trans. Inc. precluded coverage for a spill that resulted in the leaking of thousands of gallons of fuel. The District Court relied on the existence of a total pollution exclusion to bar coverage and held that the policy’s Special Hazards and Fluids Limitation Endorsement could not create an ambiguity that would afford coverage.
Reprinted courtesy of
Syed S. Ahmad, Hunton Andrews Kurth and
Adriana A. Perez, Hunton Andrews Kurth
Mr. Ahmad may be contacted at sahmad@HuntonAK.com
Ms. Perez may be contacted at pereza@HuntonAK.com
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Make Your Business Great Again: Steven Cvitanovic Authors Construction Today Article
April 20, 2017 —
Steven M. Cvitanovic - Haight Brown & Bonesteel LLPThere is a lot of uncertainty regarding how President Trump’s immigration and trade policies will affect the construction industry. In his Construction Today article, Partner Steven Cvitanovic discusses how businesses can remain competitive and profitable during this period of uncertainty, including updating contract documents, recruiting and retaining employees, and increasing cybersecurity efforts.
“If you do not know when your contract documents were last updated, it’s probably been too long,” writes Cvitanovic. “Unlike wine, contract documents only get worse with age.” Cvitanovic advises teams to sit down together and review contracts to see if they still meet the firm’s needs.
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Steven M. Cvitanovic, Haight Brown & Bonesteel LLPMr. Cvitanovic may be contacted at
scvitanovic@hbblaw.com
In One of the First Civil Jury Trials to Proceed Live in Los Angeles Superior Court During Covid, Aneta Freeman Successfully Prevailed on Behalf of our Client and Obtained a Directed Verdict and Non-Suit
July 05, 2021 —
Aneta B. Freeman – Chapman Glucksman Dean & Roeb News AlertIn one of the first civil jury trials to proceed live in Los Angeles Superior Court during Covid, Aneta Freeman obtained a rare directed verdict and nonsuit in a complex, high exposure action, after seven days of trial. The dismissal was obtained after the parties rested after the liability phase of the bifurcated trial.
Ms. Freeman represented a general contractor in an action in which Plaintiff alleged that the general contractor and the County of Los Angeles (which was dismissed earlier on statutory immunity grounds) created a dangerous condition when they allegedly allowed mosquitos to breed in 2015 during construction at a flood retention basin in Marina Del Rey.
Plaintiff contracted West Nile Virus, and subsequently developed myasthenia gravis and a myriad of other conditions and ailments. Plaintiff relied heavily on a 2015 report from the Los Angeles West Vector Control District which suggested that the construction was the source of mosquitos which resulted in a “cluster” of West Nile Virus cases in the Marina Del Rey and surrounding areas.
In pretrial motions, Ms. Freeman successfully excluded that report, opinion testimony from the vector control former executive director, narrowed the scope of plaintiff’s entomologist testimony, and excluded Brad Avrit from testifying for the Plaintiff on construction standard of care.
The matter proceeded with a stipulated a 10 person jury, and all participants socially distanced and masked throughout the trial. Witnesses appeared live, with the exception of Plaintiff’s entomologist, portions of whose video deposition were played.
Following seven days of trial after both parties rested, Judge Mark Young granted the general contractor’s nonsuit and also, in the alternative, a directed a verdict for our client.
Plaintiff had demanded $10,000,000 of the County and the general contractor globally prior to trial, and $5,000,000 from the general contractor. The general contractor issued two CCP 998s, which were ignored by Plaintiff.
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Aneta B. Freeman, Chapman Glucksman Dean & RoebMs. Freeman may be contacted at
afreeman@cgdrlaw.com
North Carolina Supreme Court Addresses “Trigger of Coverage,” Allocation and Exhaustion-Related Issues Arising Out of Benzene-Related Claims
January 04, 2023 —
White and Williams LLPOn December 16, 2022, the North Carolina Supreme Court decided Radiator Specialty Co. v. Arrowood Indem. Co., 2022 N.C. LEXIS 1122 (Dec. 16, 2022), in which it addressed coverage issues arising out of claims by individuals alleging injury from exposure to benzene contained in the insured’s products. Affirming in part and reversing in part the intermediate appellate court’s decision, the court held: (1) an “exposure trigger” applied; (2) defense and indemnity costs were subject to pro-rata allocation; and (3) vertical exhaustion applied to the duty to defend under certain umbrella policies. Two justices concurred in part and dissented in part.
I. Background
In Radiator Specialty, the insured (RSC) was named in hundreds of underlying suits arising from individual plaintiffs’ alleged exposure to benzene contained in its products. Between 1971 and 2012, RSC was insured under primary, umbrella and excess liability policies issued by various insurers. In 2013, RSC sued the insurers in North Carolina state court, seeking coverage for approximately $45 million in defense and indemnity costs incurred for the underlying claims. In 2016, the trial court decided motions for summary judgment on a number of coverage issues. Following a bench trial in 2018, the trial court entered final judgment, which required the insurers to reimburse $1.8 million of RSC’s past costs. The rulings were appealed to the North Carolina Court of Appeals, which issued a decision in 2020. In 2021, the North Carolina Supreme Court granted RSC’s and certain insurers’ petitions for discretionary review of the Court of Appeals’ decision.
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White and Williams LLP
Newmeyer & Dillion Announces New Partner Bahaar Cadambi
May 06, 2019 —
Newmeyer & DillionProminent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that Newport Beach attorney Bahaar Cadambi has been elected to partnership.
"Bahaar has worked hard to become an integral part of the firm's litigation practice, delivering exceptional value to her colleagues and clients at every opportunity," said the firm's Managing Partner, Paul Tetzloff, "We are proud to count her among our partners and look forward to her continued success and contributions."
Cadambi concentrates her practice in business, insurance, and real estate litigation. She represents businesses, homebuilders, developers, and general contractors in complex, multi-party real estate, construction defect, and insurance disputes. She also represents individuals and businesses across a variety of business litigation matters. Her approach to litigation ensures that clients are informed of all potential strategies, the consequences of those strategies, and how the implementation of those strategies will affect their business.
Passionate about the legal community, Cadambi is an adjunct professor at the University of Southern California Gould School of Law and an active member of CREW (Commercial Real Estate Women Orange County). She is also a Barry's Bootcamp and yoga enthusiast, lover of all things interior design, avid traveler, devoted wife, and favorite aunt to two energetic nieces and one cheerful nephew.
Bahaar earned her B.A. from the University of California, Los Angeles and her J.D. from the University of California, Hastings College of Law. Prior to joining Newmeyer & Dillion, she served as a Judicial Extern for the Honorable William Alsup in the U.S. District Court for the Northern District of California.
Bahaar Cadambi: bahaar.cadambi@ndlf.com
Practice Areas
- Business Litigation
- Construction Litigation
- Insurance Law
About Newmeyer & Dillion
For almost 35 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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Montana Supreme Court Tackles Decade-Old Coverage Dispute Concerning Asbestos Mineworker Claims
December 20, 2021 —
Patricia B. Santelle & Paul A. Briganti - White and WilliamsOn November 23, 2021, the Montana Supreme Court issued an almost unanimous decision in National Indemnity Company v. State of Montana, a ten-year-old coverage dispute arising from claims against the State of Montana alleging it had failed to warn of asbestos dust conditions at vermiculite mining and milling operations in and around Libby, Montana (the Libby Mine) run by W.R. Grace & Company and its predecessors. Affirming in part and reversing in part rulings by the trial court that culminated in a $98 million judgment against the State’s CGL insurer from 1973 to 1975, the court addressed issues including the duty to defend/estoppel, the number of occurrences, “trigger of coverage,” and, in a case of first impression, allocation under Montana law.
Whether the Insurer Breached the Duty to Defend Depended Upon the Timeframe
The court looked at whether (1) the insured provided sufficient information to bring the claims within the possibility of coverage under the subject policy and (2) the insurer gave “the necessary substance to” fulfilling its duty to defend at four points in the relevant timeframe:
- The insurer did not breach its duty at the time the State initially tendered the Libby Mine claims because the State defended the claims through its self-insurance program, hired its own counsel, managed the litigation, made its own defense decisions, and took the position with the insurer that the matter was “under control” and “nothing was left to be done[.]”
Reprinted courtesy of
Patricia B. Santelle, White and Williams and
Paul A. Briganti, White and Williams
Ms. Santelle may be contacted at santellep@whiteandwilliams.com
Mr. Briganti may be contacted at brigantip@whiteandwilliams.com
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Will Protecting Copyrights Get Easier for Architects?
November 28, 2022 —
Scott L. Baker - Los Angeles Litigation BlogLike any creative business, architects rely on their intellectual property. Their designs are at the center of their work. For example, as we discussed in a previous post, many architects nowadays focus on creating new ways for their building designs to be environmentally friendly and sustainable.
However, nearly every form of intellectual property faces the risk of theft or infringement in the business world.
Architects face unique challenges with their copyrights – as well as risks.
Copyright Issues in the Architecture World
One of the biggest issues, of course, is that there are many aspects of building designs that architects
cannot protect by copyright. This is simply because various details are fundamental in the construction of every building. One person cannot own the rights to such a common design.
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Scott L. Baker, Baker & AssociatesMr. Baker may be contacted at
slb@bakerslaw.com
