No Duty to Defend under Homeowner's Policy Where No Occurrence, No Property Damage
October 10, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe federal district court for the district of Hawaii granted the insurer's motion for summary judgment determining there was not duty to defend and no duty to indemnify the insured under a homeowner's policy. Allstate Ins. Co. v. Rosfeld, 2022 U.S. Dist. LEXIS 139123 (D. Haw. Aug. 4, 2022).
The insured homeowners were sued in the underlying case for alleged failure to disclose poor flooding and plumbing issues during a December 2016 sale of the residence on Kauai. The disclosure statement purportedly made false representations and omitted material facts regarding various issues with the residence. The disclosure statement noted no sewage, drainage, water-related, or grading problems on the property, no damage to structures from flooding or leaks, no defects in the foundations or slabs, and no defects in the interior walls, baseboards or trim despite the insureds having experienced such issues during their ownership. The underlying complaint further alleged that the property had a history of drainage problems dating to 2006 and 2007, which the insureds knew about, or should have known about, when completing the disclosure statement. The insureds made a claim with Allstate in 2014 under their flood and homeowners policies for flooding or seepage into the basement of the house.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
BOO! Running From Chainsaw Wielding Actor then Falling is an Inherent Risk of a Haunted Attraction
December 10, 2015 —
Laura C. Williams, R. Bryan Martin & Lawrence S. Zuckerman – Haight Brown & Bonesteel LLPIn Griffin v. The Haunted Hotel, Inc. (filed 10/23/15; certified for publication 11/20/15), the California Court of Appeal, Fourth Appellate District, affirmed summary judgment in favor of the defendant haunted attraction operator holding that the risk of a patron being frightened, then running away and falling is inherent in the fundamental nature of a haunted house attraction. The Court further determined there was no evidence the operator acted recklessly or unreasonably increased such risks beyond those inherent in the attraction.
In October 2011, Plaintiff attended The Haunted Trail attraction, which featured actors in costumes jumping out holding prop weapons to scare patrons walking along a trail through Balboa Park. The Haunted Trail also employed a scare tactic known as the “Carrie” effect, in which the patrons walk through a fake exit and suddenly a chainsaw wielding actor appears and charges at the patrons for one final jolting scare.
It was during this final scene of The Haunted Trail’s “Carrie” effect that Griffin became frightened by an actor brandishing a chainsaw causing him to suddenly run away in fear. As he was fleeing, Griffin fell and injured his wrist.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Laura C. Williams,
R. Bryan Martin and
Lawrence S. Zuckerman
Ms. Williams may be contacted at lwilliams@hbblaw.com
Mr. Martin may be contacted at bmartin@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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Corporate Formalities: A Necessary Part of Business
February 18, 2020 —
Hannah Kreuser - Porter Law GroupMany benefits exist in choosing to create a corporation or limited liability company (“LLC”) as your business entity. However, what attracts most people to these entities is the protection they afford the business owner(s) against personal liability for the business’ obligations, debts, and other liabilities. Whatever reason prompts your decision to form a corporation or LLC, if you are like many smaller businesses, once the formation process is over its back to business as usual.
However, in order to keep the protection against personal liability associated with a corporation or LLC, the business must engage in, what are known as corporate formalities. Corporate formalities are formal actions that must be taken by a corporation or LLC in order to maintain the benefits associated with that business entity. These corporate formalities may be required under California law, by the bylaws, and/or by the operating agreement of your business.
When your business is formed as a corporation, many of the corporate formalities exist as part of California’s Corporations Code (“CCC”). These formalities include: (1) holding annual meetings (CCC § 600); (2) regularly electing directors (CCC § 301); (3) keeping meeting minutes (CCC § 1500); and (4) maintaining accurate corporate records (CCC § 1500). While these are only a few of the corporate formalities existing for corporations in the State of California, these formalities are often overlooked or put off by smaller businesses because they are either unknown to the business or are intended to be complied with later, as the actual running of the business takes priority.
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Hannah Kreuser, Porter Law GroupMs. Kreuser may be contacted at
hkreuser@porterlaw.com
Nonparty Discovery in California Arbitration: How to Get What You Want
March 02, 2020 —
Leilani E. Jones - Payne & FearsThis article was originally published for the Association of Business Trial Lawyers (ATBL) Report, Volume XX, No. 3, Winter 2018 by attorney Leilani L. Jones.
Opting for arbitration requires attorneys to balance efficiency and procedural protections. The implications of arbitration are something clients certainly have to carefully consider both when drafting arbitration provisions, and after initiating a demand. While arbitration can in many respects streamline the civil discovery process, one of the largest roadblocks for cases in California arbitrations is “streamlining” discovery from nonparties. This article explores the challenges presented by third party discovery in arbitration, and proposes strategies for obtaining such discovery efficiently and expeditiously.
Alternative dispute resolution tends to make sense to most businesses implementing preventive measures for future litigation. Clients, lawyers, and judges can generally agree that arbitration is the more “cost-effective” way to resolve disputes, especially in California. While arbitration is theoretically a lowcost option for dispute resolution, almost all parties (particularly the party defending) bristle at climbing expenditures during discovery. This is all despite the perception of more “streamlined” processes in arbitrations. On balance, arbitrators, employing less formal procedures for discovery disputes, can typically cut to the chase faster than a civil judge. Parties often resolve issues via letter brief and telephonic hearing, if necessary, instead of formal noticed motions with accompanying separate statements. The Judicial Arbitration and Mediation Services, Inc.’s (“JAMS”) own “Arbitration Discovery Protocols” specifically “ensure that an arbitration will be resolved much less expensively and in much less time than if it had been litigated in court.” Accessed at https:// www.jamsadr.com/arbitration-discovery-protocols.
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Leilani E. Jones, Payne & FearsMs. Jones may be contacted at
llj@paynefears.com
Construction Defect Suit Can Continue Against Plumber
June 28, 2013 —
CDJ STAFFThe Kansas Court of Appeals has reversed a district court ruling that a homeowner’s suit against a plumber was barred under the economic loss doctrine. However, subsequently the Kansas Supreme Court “refused to extend the economic loss doctrine to homeowner claims against construction contractors.” In light of this, the appeals court sent the case back to the lower court.
The case, Coker v. Siler, was brought by Gregory Coker, who had bought a home from J.M.C. Construction. JMC purchased an unfinished house from Michael D. Siler in August 2006. As part of the completion process, John M. Chaney, the president of JMC, installed the water line into the residence. Mr. Coker bought the home in September 2007.
Starting in April 2008, Mr. Coker noticed that his water bills had increased. Mr. Coker could find “no evidence of a leak above the ground,” so he contacted JMC Construction. Mr. Chaney had R.D. Johnson Excavation dig up the water line, after which a gap was discovered that had been allowing water to flow under the foundation. In addition to the higher water bills, an engineer determined that the water “resulted in cracks in the wall and uneven doors.”
Mr. Coker sued, Siler, J.M.C. and Chaney for negligence, breach of implied warranty, strict liability, and breach of express warranty. J.M.C. and Chaney requested a summary judgment. The court dismissed Mr. Coker’s claims of negligence, strict liability, and breach of implied warranty on the basis of the economic loss doctrine, rejecting a petition from Mr. Coker to reconsider. The court, however, allowed Mr. Cocker to proceed with his claim of express warranty. In December, 2011, Mr. Coker accepted an offer from J.M.C. of $40,000.
Mr. Coker then appealed the summary judgment, making the claim that while the court’s decision was based on Prendiville v. Contemporary Homes, Inc., this has now been overruled by David v. Hett. In this case, “the court ultimately found the rationale supporting the economic loss doctrine failed to justify a departure from a long time of cases in Kansas that establish a homeowner’s right to assert claims against residential contractors.” The appeals court concluded that “although the district court properly relied on the law as it existed at the time of its ruling, the intervening change in the law necessarily renders the conclusion reached by the district court erroneous as a matter of law.”
In sending this case back to the district court, the appeals court noted that the lower court will need to determine if the “defendant accused of negligence did not have a duty to act in a certain manner towards the plaintiff,” in which case “summary judgment is proper. Mr. Coker claims that Mr. Chaney did indeed have this duty.
Further, Mr. Coker claimed that Mr. Chaney had a duty arising out of implied warranty. The appeals court questioned whether the district court properly applied the economic loss doctrine to this claim, because despite being president of the construction company, Mr. Chaney “in his individual capacity as a plumber performing work for Coker, was not a party to the J.M.C. contract.” The court found that “Coker’s claim that Chaney breached an implied duty within such a contract fails as a matter of law.”
However, the court did uphold Cocker’s claim of a contractor liability for injury to a third party, noting that “Chaney owed Coker a legal duty independent of Coker’s contact with J.M.C.” The appeals court left it to the district court to determine if the defect that caused the damage was present when the house left J.M.C.’s possession.
The case was reversed and remanded “with directions to reinstate Coker’s claim of negligence against Chaney in his individual capacity as a plumber.”
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No Coverage for Collapse of Building
January 04, 2021 —
Tred R. Eyerly - Insurance Law HawaiiDamage to a building caused by the break of a water pipe was not a collapse under the policy. Naabani Twin Stars v. Travelers Cos., 2020 U.S. Dist. LEXIS 196443 (D. N. M. Oct. 22, 2020).
An underground water line ruptured on plaintiffs property This caused a collapse under the adjacent parking lot, which in turn caused land beneath the building go change positions and damage the building. A geotechnical consultant concluded that a material change in the site conditions occurred as a direct result of the rupture of the water pipe in the parking lot, and that those changes directly affected the settlement of the building.
Travelers denied coverage for the damage. Travelers concluded that the building settlement was the result of subsurface movement, which invoked the earth movement exclusion. Travelers inspection concluded that the building was not in a state of collapse. The policy defined collapse as "an abrupt falling down or caving in of a building or structure, or any part of a building or structure, with the result that the building, or part of the building, cannot be occupied for its intended purpose."
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Haight’s John Arbucci and Kristian Moriarty Selected for Super Lawyers’ 2020 Southern California Rising Stars
July 20, 2020 —
T. Giovanni “John” Arbucci & Kristian B. Moriarty - Haight Brown & BonesteelCongratulations to attorneys T. Giovanni “John” Arbucci and Kristian Moriarty who were selected to the Super Lawyers 2020 Southern California Rising Stars list. Each year, no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.
Reprinted courtesy of
T. Giovanni “John” Arbucci, Haight Brown & Bonesteel and
Kristian B. Moriarty, Haight Brown & Bonesteel
Mr. Arbucci may be contacted at jarbucci@hbblaw.com
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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Spencer Mayer Receives Miami-Dade Bar Association's '40 Under 40' Award
March 04, 2024 —
Lewis Brisbois NewsroomMiami, Fla. (February 23, 2024) – Miami Associate Spencer Mayer received the 2024 Miami-Dade Bar Association Young Lawyers Section’s '40 under 40' Award at the association's annual "Miami Nights" event on February 22.
Mr. Mayer serves on the Board of Directors of the Miami Dade Bar Association’s Young Lawyers Section. Lewis Brisbois was a proud sponsor of this event, which raised funds for the organization's community service initiatives and pro bono programming.
Mr. Mayer is a member of the General Liability Practice. His practice focuses on all aspects of civil litigation, including complex commercial litigation, products liability, premises liability, wrongful death, catastrophic injury, and insurance coverage.
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Lewis Brisbois
