California Supreme Court Holds “Notice-Prejudice” Rule is “Fundamental Public Policy” of California, May Override Choice of Law Provisions in Policies
November 12, 2019 —
Anthony L. Miscioscia & Timothy A. Carroll - White and Williams LLPOn August 29, 2019, in Pitzer College v. Indian Harbor Insurance Company, 2019 Cal. LEXIS 6240, the California Supreme Court held that, in the insurance context, the common law “notice-prejudice” rule is a “fundamental public policy” of the State of California for purposes of choice of law analysis. Thus, even though the policy in Pitzer had a choice of law provision requiring application of New York law – which does not require an insurer to prove prejudice for late notice of claims under policies delivered outside of New York – that provision can be overridden by California’s public policy of requiring insurers to prove prejudice after late notice of a claim. The Supreme Court in Pitzer also held that the notice-prejudice rule “generally applies to consent provisions in the context of first party liability policy coverage,” but not to consent provisions in the third-party liability policy context.
The Pitzer case arose from a discovery of polluted soil at Pitzer College during a dormitory construction project. Facing pressure to finish the project by the start of the next school term, Pitzer officials took steps to remediate the polluted soil at a cost of $2 million. When Pitzer notified its insurer of the remediation, and made a claim for the attendant costs, the insurer “denied coverage based on Pitzer’s failure to give notice as soon as practicable and its failure to obtain [the insurer’s] consent before commencing the remediation process.” The Supreme Court observed that Pitzer did not inform its insurer of the remediation until “three months after it completed remediation and six months after it discovered the darkened soils.” In response to the denial of coverage, Pitzer sued the insurer in California state court, the insurer removed the action to federal court and the insurer moved for summary judgment “claiming that it had no obligation to indemnify Pitzer for remediation costs because Pitzer had violated the Policy’s notice and consent provisions.”
Reprinted courtesy of
Timothy Carroll, White and Williams and
Anthony Miscioscia, White and Williams
Mr. Carroll may be contacted at carrollt@whiteandwilliams.com
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
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District Court's Ruling Affirmed in TCD v American Family Mutual Insurance Co.
May 10, 2012 —
CDJ STAFFIn the case, TCD, Inc. v American Family Mutual Insurance Company, the district court’s summary judgment was in favor of the defendant. In response, the Plaintiff, TCD, appealed “on the ground that the insurance company had no duty to defend TCD under a commercial general liability (CGL) insurance policy.” The appeals court affirmed the decision.
The appeals ruling provides a brief history of the case: “This case arises out of a construction project in Frisco, Colorado. The developer, Frisco Gateway Center, LLC (Gateway), entered into a contract with TCD, the general contractor, to construct a building. TCD entered into a subcontract with Petra Roofing and Remodeling Company (Petra) to install the roof on the building. The subcontract required Petra to "indemnify, hold harmless, and defend" TCD against claims arising out of or resulting from the performance of Petra’s work on the project. The subcontract also required Petra to name TCD as an additional insured on its CGL policy in connection with Petra’s work under the subcontract.”
Furthermore, “TCD initiated this case against Petra and the insurance company, asserting claims for declaratory judgment, breach of insurance contract, breach of contract, and negligence. The district court entered a default judgment against Petra, and both the remaining parties moved for summary judgment. The court granted summary judgment on the entirety of the action, in favor of the insurance company, concluding that the counterclaims asserted by Gateway against TCD did not give rise to an obligation to defend or indemnify under the CGL policy.”
The appeals court rejected each contention made by TCD in turn. First, “TCD contend[ed] that Gateway’s counterclaims constitute[d] an allegation of ‘property damage,’ which is covered under the CGL policy.” The appeals court disagreed. Next, “TCD argue[d] that [the court] should broaden or extend the complaint rule, also called the ‘four corners’ rule, and allow it to offer evidence outside of the counterclaims to determine the insurance company’s duty to defend in this case.” The appeals court was not persuaded by TCD’s argument.
The judgment was affirmed. Judge Roman and Judge Miller concur.
Read the court’s decision…
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Lewis Brisbois Launches New Practice Focusing on Supply Chain Issues
April 04, 2022 —
Sean Shecter - Lewis BrisboisFt. Lauderdale, Fla. (March 31, 2022) - Lewis Brisbois has formed a Supply Chain Due Diligence Practice that will assist clients in navigating the issues they continue to face as a result of the many forces currently impacting the global supply chain. The attorneys who comprise Lewis Brisbois' new practice will advise companies on the complex and multi-disciplinary legal matters arising from, among other things, environment, social, and governance (ESG) policies, trade bans (i.e., "deglobalization"), and the U.S. government's efforts to emphasize "green investigations." Fort Lauderdale Partner Sean P. Shecter, a former federal prosecutor, will chair the new practice.
“Companies need to be aware that several methodologically distinct forces are reshaping the global supply chain. Most law firms are not paying attention to this critical area," Mr. Shecter noted when discussing why the firm formally established this practice. "Lewis Brisbois recognizes that companies need trustworthy legal advice to navigate these multi-faceted legal issues, and so it has established this Supply Chain Due Diligence Practice and resource page. With its expansive network, Lewis Brisbois is well-positioned to help companies navigate and address these complex and multi-disciplinary legal issues.”
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Sean Shecter, Lewis BrisboisMr. Shecter may be contacted at
Sean.Shecter@lewisbrisbois.com
Insurer's Quote on Coverage for Theft by Hacker Creates Issue of Fact
December 16, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe appellate court found that the insurer's quote created an issue of fact on whether loss caused by a computer hacker would be covered. Metal Pro Roofing, LLC v. Cincinnati Ins. Co., 2019 Ind. App. LEXIS 355 (Ind. Ct. App. Aug. 9, 2019).
The insureds, Metal Pro Roofing, LLC and Cornett Restoration, LLC ("LLC's") discovered that their bank accounts had been hacked and over $78,000 stolen. They submitted claims to their insurer, Cincinnati. Coverage was denied, and the LLCs filed suit. Cross-motions for summary judgment were filed, and the court granted summary judgment to Cincinnati.
The "Forgery or Alternation" coverage applied to losses resulting directly from the "'forgery' or alteration of checks, drafts, promissory notes, or similar written promises, order or directions to pay a sum of money." "Forgery" was defined as "the signing of the name of another person or organization with the intent to deceive." The LLCs did not cite any evidence that the hacker "signed" anything, let alone that they signed "the name of another person or organization."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
California Commission Recommends Switching To Fault-Based Wildfire Liability Standard for Public Utilities
June 25, 2019 —
Lawrence J. Bracken II, Sergio F. Oehninger, Paul T. Moura & Alexander D. Russo - Hunton Insurance Recovery BlogA state-appointed panel advised last week that California should change the standard for determining whether utilities are liable for wildfires. Under the current system, California’s Public Utilities Code § 2106 provides a private right of action by any person or entity that has suffered loss, damages, or injury caused by prohibited or unlawful acts of a public utility. Relying on this statute, property owners have asserted wildfire-related claims directly against allegedly culpable electric utility companies. Public utilities in California also face inverse condemnation claims arising out of wildfires. Under inverse condemnation, where private property is taken for public use and later damaged by the state or its agency, the state or agency is strictly liable to the property owner.
In an effort to reduce the financial impact on public utilities resulting from wildfires—as exemplified by Pacific Gas and Electric Co.’s recent filing for Chapter 11 protection in January—the California Commission on Catastrophic Wildfire Cost and Recovery recommended changing the current laws to reflect a fault-based standard. According to the panel, this change would reduce the risk of bankruptcy and decrease the cost of capital. The commission also recommended establishing a wildfire victims’ fund and setting up an electric utility wildfire board to handle the prevention and mitigation of utility-related wildfires.
Reprinted courtesy of Hunton Andrews Kurth attorneys
Lawrence J. Bracken II,
Sergio F. Oehninger,
Paul T. Moura and
Alexander D. Russo
Mr. Bracken may be contacted at lbracken@HuntonAK.com
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Paul may be contacted at pmoura@HuntonAK.com
Mr. Alexander may be contacted at arusso@HuntonAK.com
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Claimants’ Demand for Superfluous Wording In Release Does Not Excuse Insurer’s Failure to Accept Policy Limit Offer Within Time Specified
September 15, 2016 —
Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLPIn Barickman v. Mercury Casualty Co. (No. B260833, filed 7/25/16, ord. pub. 8/15/16) a California appeals court affirmed a $3 million bad faith award against Mercury Casualty Co. based upon its failure to accept a policy limit demand within the time provided, finding that wording inserted by the claimants’ counsel into the release did not affect the insured’s rights such that the refusal to agree to the wording was unreasonable and in bad faith, exposing the insurer to liability for the insured’s stipulated judgment.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com
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Newmeyer & Dillion Selected to 2017 OCBJ’s Best Places to Work List
July 26, 2017 —
Newmeyer & Dillion LLPProminent business and real estate law firm Newmeyer & Dillion LLP is proud to be one of the selected companies in the
Best Places to Work in Orange County – 2017 Survey in the category of medium sized companies. This marks the sixth consecutive year Newmeyer & Dillion LLP has made the list, affirming that its profound commitment to professionalism and client service is shared among its workforce. The firm was honored in the July 24 issue of the Orange County Business Journal.
Jeff Dennis, Newmeyer & Dillion's Managing Partner, commends the effort and commitment of each employee in achieving this result. "We strive to make Newmeyer & Dillion a great place to be, but we only set the goal. It is our employees and their ongoing loyalty and commitment to our mission that makes it happen. Together, we create a culture here that cannot be matched anywhere else."
Created in 2009, the awards program evaluates entries based on workplace policies, practices, demographics, and also collects employee surveys to measure overall satisfaction and experience. The Best Companies Group worked alongside the Orange County Business Journal in collecting and analyzing the data and is a partner in the project.
About Newmeyer & Dillion
For more than 30 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, construction 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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BWB&O ranks as a 2025 Best Law Firm by Best Lawyers®
December 10, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is honored to announce the firm has been recognized for its fifth consecutive year in the 2025 edition of Best Law Firms® and is ranked by Best Lawyers® regionally in three practice areas. To read the publication, please click here.
Metropolitan Tier 1
Las Vegas: Litigation – Construction
Orange County: Litigation – Construction
Metropolitan Tier 2
Orange County: Family Law
San Diego: Litigation – Real Estate
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
