Seattle Washington Building Expert Directory

Applying Mighty Midgets, NY Court Awards Legal Expenses to Insureds Which Defeated Insurer’s Coverage Claims

February 10, 2020 — Anthony L. Miscioscia & Timothy A. Carroll - White and Williams LLP
Is an insured (or putative insured) entitled to recover its legal expenses if it is successful in coverage litigation? In some states, no. In many other states, yes – based on either a statute or the common law. In New York, an insured may recover such expenses if it was “cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations,” and, while forced into that posture, the insured defeats the insurer’s claim. Mighty Midgets, Inc. v. Centennial Ins. Co., 389 N.E.2d 1080, 1085 (N.Y. 1979). As a corollary to that rule, the insured is not entitled to its expenses “in an affirmative action brought by [the insured] to settle its rights. . . .” Id. at 1085. Earlier this week, the New York federal court in United Specialty Ins. Co. v. Lux Maint. & Ren. Corp., 2019 U.S. Dist. LEXIS 201805 (S.D.N.Y. Nov. 20, 2019) became the latest to apply the Mighty Midgets rule, awarding several insureds their legal expenses after defeating the insurer’s declaratory judgment action. In Lux, the CGL insurer of a façade-renovation contractor sued the contractor (its named insured) and several owners of a hospital (putative additional insureds) at which the façade-renovation work took place, claiming that the insurer did not owe a defense or indemnity to any of those companies in connection with an underlying bodily injury action brought by an employee of the contractor who was injured while performing the work. The insurer and the putative additional insureds filed cross-motions for summary judgment on the coverage issues, with the putative additional insureds also seeking to recover their legal expenses for defending against the insurer’s action. The U.S. District Court for the Southern District of New York concluded that, based on the contractor’s agreement to provide coverage for the hospital owners, and a comparison between the underlying allegations and the policy, the insurer owed the hospital owners coverage as additional insureds to the contractor’s policy; the court also concluded that the insurer owed coverage for the contractor’s contractual defense and indemnity obligations to the hospital owners. After concluding that the insurer’s claim that it did not owe coverage lacked merit, the court turned to the additional insureds’ request for their legal expenses. The court examined the “well settled” rule under New York law “that an insured cannot recover his legal expenditure in a dispute with an insurer over coverage, even if the insurer loses and is obligated to provide coverage,” but also New York’s “limited exception” to that rule, “under which an insured who is ‘cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations, and who prevails on the merits, may recover attorneys’ fees incurred in defending against the insurer’s action.’ ” Lux, 2019 U.S. Dist. LEXIS 201805, at *18 (quoting Mighty Midgets, 389 N.E.2d at 1085). Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Timothy A. Carroll, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Read the court decision
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New York Court of Appeals Finds a Proximate Cause Standard in Additional Insured Endorsements

June 15, 2017 — Geoffrey Miller - Saxe Doernberger & Vita, P.C.
In The Burlington Insurance Company v. NYC Transit Authority, et al., No. 2016-00096, the New York Court of Appeals issued a landmark decision with regard to the meaning of “caused, in whole or in part, by” in the additional insured context. In a split decision, the court rejected Burlington Insurance Company’s argument that the language implied a “negligence” standard, but held that coverage was provided to the additional insured only where the named insured’s acts or omissions were the proximate cause of the injury:

While we [the majority] agree with the dissent that interpreting the phrases differently does not compel the conclusion that the endorsement incorporates a negligence requirement, it does compel us to interpret ‘caused, in whole or in part’ to mean more than ‘but for’ causation. That interpretation, coupled with the endorsement’s application to acts or omissions that result in liability, supports our conclusion that proximate cause is required here.[1]

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Reprinted courtesy of Geoffrey Miller, Saxe Doernberger & Vita, P.C.
Mr. Miller may be contacted at gjm@sdvlaw.com

Where Standing, Mechanic’s Liens, and Bankruptcy Collide

September 17, 2018 — Christopher G. Hill - Construction Law Musings
I have spoken often about mechanic’s liens and the implications of such liens as they relate to bankruptcy here at Construction Law Musings. A recent case out of Loudoun County, Virginia added another wrinkle to this discussion, that of standing and what happens on conveyance of the property and what interest in the property is required to allow a party to seek removal of the mechanic’s lien. In Leesburg Bldg. P’rs LLC v. Mike Berger Inc. the Loudoun County Circuit Court faced the following scenario. Leesburg Building Partners developed certain condominiums and hired Lansdowne Construction to perform the work as general contractor and paid Landsdowne in full for the work. Lansdowne hired Mike Berger, Inc. (“MBI”) to perform concrete work for the project. Landsdowne didn’t pay MBI approximately $48,000.00 and subsequently filed for bankruptcy. MBI, seeking to protect it’s interest in the money it was owed, recorded a mechanic’s lien on the property. Leesburg Building Partners filed an action to declare the lien invalid and have it removed from the property based upon its “payment defense” and the fact that it had paid Landsdowne in full. A relatively simple scenario and one that has been discussed before here at Musings. Not so fast. . . Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Super Lawyers Selects Haight Lawyers for Its 2024 Southern California Rising Stars List

February 05, 2024 — Haight Brown & Bonesteel LLP
Congratulations to the following Haight attorneys who were selected to the 2024 Southern California Rising Stars list:

Kyle DiNicola
Patrick McIntyre
Kathleen Moriarty
Kristian Moriarty
Austin Smith

Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. Read the court decision
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Reprinted courtesy of Haight Brown & Bonesteel LLP

BWB&O Partners are Recognized as 2022 AV Preeminent Attorneys by Martindale-Hubbell!

December 06, 2021 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Congratulations to BWB&O Partners on their recognition in Martindale-Hubbell® as AV Preeminent attorneys. This honor is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers. Newport Beach Partner, Nicole Whyte Newport Beach Partner, Keith Bremer Newport Beach Partner, John Toohey Newport Beach Partner, Jeremy Johnson Woodland Hills Partner, John O'Meara Woodland Hills Partner, Patrick Au Arizona Partner, John Belanger Las Vegas Partner, Peter Brown Las Vegas Partner, Lucian Greco Las Vegas Partner, Anthony Garasi San Diego Partner, Vik Nagpal San Diego Partner, Alexander Giannetto Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Meet BWBO’s 2024 San Diego Super Lawyers Rising Stars!

April 29, 2024 — Bremer Whyte Brown & O'Meara LLP
BWB&O is proud to announce San Diego Partner Johnpaul Salem, and Associates Christina Matian and Angelo Perillo have been selected in the 2024 San Diego Super Lawyers list as Rising Stars for their work in Civil and Personal Injury Litigation. To read Super Lawyers’ digital publication, please click here. SELECTED AS RISING STARS Johnpaul Salem: 2023-2024 Christina Matian: 2024 Angelo Perillo: 2024 Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The objective of Super Lawyers’ patented multiphase selection process is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

Formal Opinion No. 2020-203: How A Lawyer Is to Handle Access to Client Confidential Information and Anticipation of Potential Security Issues

December 07, 2020 — Bremer Whyte Brown & O'Meara LLP
Recently, the California Bar Association (“CBA”) published Formal Opinion No. 2020-203[1] concerning a lawyer’s ethical obligations with respect to unauthorized access to electronically stored client information. The onset of the COVID-19 pandemic greatly accelerated the growing trend of storing and maintaining data and information online so that employees and clients can access the data from anywhere in the world at any time. Now, in today’s working world, the reality is nearly all information and data is stored and shared digitally online for ease of access, use, and dissemination. Unfortunately, a major draw-back of this switch to a cyber paradigm is serious exposure to data breaches as a result of hacking, inadvertence, or theft. Formal Opinion No. 2020-203 outlines how a lawyer is to handle access to client confidential information and anticipation of potential security issues. This article will briefly cover the key aspects addressed in Formal Opinion No. 2020-203. What is the duty owed by a lawyer to his or her client regarding the use of technology? At the outset, the CBA reminds lawyers of the ongoing duty of competence (Rule 1.1) and the duty to safeguard clients’ confidences and secrets (Rule 1.6; Cal. Bus. & Prof. Code, § 6068(e)) which impose the requirement that a lawyer must have a basic understanding of the risks posed when using a given technology and (if necessary) obtain help from appropriate experts to assess those risks and take reasonable steps to prevent data breaches. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

Partners Nicole Whyte and Karen Baytosh are Selected for Inclusion in Best Lawyers 2021 and Nicole Nuzzo is Selected for Inclusion in Best Lawyers: Ones to Watch

September 28, 2020 — Bremer Whyte Brown & O’Meara, LLP
Bremer Whyte Brown & O’Meara, LLP is proud to announce that Partners Nicole Whyte and Karen Baytosh have been chosen for inclusion in Best Lawyers 2021 Edition! CEO/Founding Partner Nicole Whyte has been selected for the 2nd time by her peers for inclusion in the 27th Edition of The Best Lawyers in America, for her work in Family Law. Reno Partner Karen Baytosh is also being recognized by her peers for her work in Commercial Litigation. This is an outstanding recognition as only the top 5% of talent in the United States are chosen for inclusion in this publication. BWB&O is also excited to share Partner Nicole Nuzzo has been selected by her peers for her inclusion in the edition of Best Lawyers: Ones to Watch, for her work in Family Law. The “Ones to Watch” award gives recognition to attorneys who are earlier in their careers for outstanding professional excellence in private practice in the United States. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O’Meara, LLP

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