Ninth Circuit Court Weighs In On Insurance Coverage For COVID-19 Business Interruption Losses
October 11, 2021 —
Rondi J. Walsh - Newmeyer DillionOn October 1, 2021, the Ninth Circuit Court of Appeals ruled on a trio of cases involving COVID-19 business interruption losses, in a series of written opinions with results favoring the insurers. Despite the slate of wins for insurers in this round of cases, these rulings are limited to cases where policyholders either did not allege the presence of COVID-19 on their premises causing “physical alteration” of the property itself, or had a virus exclusion in their policy, or both. This leaves room for future cases potentially ruling in favor of coverage where the insureds allege the presence of coronavirus on the premises, and that there was a detrimental physical alteration of the property as a result. To date, the Ninth Circuit has not ruled on such a situation.
RULING 1: Mudpie v. Travelers Casualty Insurance Co. of America
The Ninth Circuit first considered a proposed class action brought by a children’s store operator, Mudpie. Mudpie sought business income and extra expense coverage from Travelers after California and local authorities issued shutdown orders impacting Mudpie’s operations due to COVID-19. (Mudpie, Inc. v. Travelers Casualty Insurance Company of America, Case No. 20-16858, --- F.4th --- (9th Cir. Oct. 1, 2021).) Travelers denied coverage, asserting that the claim did not involve “direct physical loss of or damage to” property “caused by or resulting from a covered Cause of Loss.” Travelers also denied coverage under language excluding “loss or damage caused by or resulting from any virus…that induces…physical distress, illness or disease.” Applying California law, the trial court agreed with Travelers on both accounts.
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Rondi J. Walsh, Newmeyer DillionMs. Walsh may be contacted at
rondi.walsh@ndlf.com
Former NYC Condo Empire Executive Arrested for Larceny, Tax Fraud
March 11, 2024 —
Ava Benny-Morrison - BloombergA former New York executive facing lawsuits over the collapse of real estate empire HFZ Capital Group has been arrested in Miami, charged with grand larceny and tax fraud.
Nir Meir, 48, was arrested Monday, a spokesperson for the Miami-Dade Police Department confirmed. Meir was detained on an out-of-state warrant, suggesting his arrest may be the result of an investigation by law enforcement in New York.
A spokesperson for the Manhattan District Attorney’s Office didn’t immediately respond to a request for comment. Meir’s attorney also didn’t immediately respond to an email.
Meir, the former managing principal of HFZ Capital Group, has been battling multiple lawsuits in New York over his involvement in the once-prominent real estate firm. He’s denied wrongdoing.
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Ava Benny-Morrison, Bloomberg
Architecture, Robotics, and the Importance of Human Interaction – An Interview with Prof. Kathrin Dörfler
September 21, 2020 —
Aarni Heiskanen - AEC BusinessWe sat down with Professor Kathrin Dörfler of the Technical University of Munich (TUM) in advance of WDBE 2020. We discussed the importance of innovation and how her research focuses on the need for practical and productive solutions when it comes to on-site support.
Digital and technical innovation plays an essential role in optimizing the modern built environment. Now leading the Augmented Fabrication Lab (AFAB) in TUM, Professor Kathrin Dörfler quickly saw the need for practical solutions early in her career.
The Importance of ‘Need’
“I’m originally an architect,” she says. “I studied digital art and architecture and my tendency to go toward digital fabrication came from this proximity to computational design and the need to use robots for fabrication. There was no other way to build the things you created in your virtual space without using machinery.”
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Collapse Claim Dismissed
December 04, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe complaint alleged collapse, but the claimed cause of the collapse was not a covered cause under the insured's policy, mandating a dismissal of the complaint. Coonce v. CSSA Fire & Cas. Ins. Co., 2018 U.S. App. LEXIS 25010 (10th Cir. Sept. 4, 2018).
The ceiling in the insured's living and dining areas caved in. An engineering survey determined that the nails used in the construction had failed to hold. The insured made a claim on her policy issued by CSAA. Coverage was denied and the insured sued.
The insured was given two opportunities to amend her complaint by the district court, but the motion to dismiss for failure to state a claim was eventually granted.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Become Familiar With Your CGL Policy Exclusions to Ensure You Are Covered: Wardcraft v. EMC.
December 31, 2014 —
Heather M. Anderson – Colorado Construction LitigationIn a recent case arising out of a denial of coverage for alleged construction defect claims concerning a pre-fabricated home, the U.S. District Court for the District of Colorado applied the 10th Circuit’s determination of what can constitute an “occurrence” under a commercial general liability (“CGL”) policy. See Wardcraft Homes, Inc. v. Employers Mutual Cas. Co., 2014 WL 4852117 (D. Colo. September 29, 2014). William and Grace Stuhr sued Wardcraft, which manufactured pre-fabricated homes at a facility in Fort Morgan, Colorado, because their home was not completed as scheduled and contained various defects. The Stuhrs filed suit against Wardcraft alleging negligence, breach of warranty, and deceptive trade practices in violation of the Colorado Consumer Protection Act.
Wardcraft tendered the Stuhrs’ complaint to Employers Mutual Casualty Company (“EMC”), which denied coverage under its policy and denied any duty to defend. According to EMC, the Stuhrs’ alleged construction defects were not property damages and there was no occurrence in connection with faulty workmanship. Approximately two and a half years after they filed their initial complaint, the Stuhrs filed an amended complaint. Wardcraft did not tender this amended complaint to EMC, and first informed EMC about the amended complaint about a year after it was filed. A month prior, Wardcraft settled with the Stuhrs.
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Heather M. Anderson, Higgins, Hopkins, McLain & Roswell, LLCMs. Anderson may be contacted at
Anderson@hhmrlaw.com
Manufacturer of Asbestos-Free Product May Still Be Liable for Asbestos Related Injuries
July 30, 2015 —
Kristian B. Moriarty, R. Bryan Martin and Lee Marshall – Haight Brown & Bonesteel LLPIn Sherman v. Hennessy Industries, Inc. (No. B252566, filed June 18, 2015), the Court of Appeal, Second District, reversed a trial court’s grant of summary judgment in favor of a manufacturer of a brake grinding machine. The Court cited an exception to the general rule that manufacturers may not be held liable, under a strict products liability theory, where the plaintiff’s injuries arise from other products that are used in conjunction with the defendant’s product.
Plaintiff and appellant, Michael Sherman, was an automobile mechanic from 1962 to 1977. Mr. Sherman alleged that during this period he used an arcing machine, which abraded brake linings by means of sand paper moving at high speeds. Sherman alleged the machine released asbestos dust, which he then brought home, exposing his wife Debra Sherman to asbestos. Ms. Sherman developed mesothelioma and passed away from exposure to the asbestos dust carried home by her husband.
Reprinted courtesy of
Kristian B. Moriarty,
R. Bryan Martin and
Lee Marshall of Haight Brown & Bonesteel LLP
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
Mr. Martin may be contacted at bmartin@hbblaw.com
Mr. Marshall may be contacted at lmarshall@hbblaw.com
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140 Days Until The California Consumer Privacy Act Becomes Law - Why Aren't More Businesses Complying?
September 09, 2019 —
Kyle Janecek and Jeff Dennis – Newmeyer DillionCalifornia, for better or for worse, has a reputation as being a trendsetter, and has taken the lead in the United States by passing the "California Consumer Privacy Act," or "CCPA." This massive law has been on the books since 2018, but hasn't taken effect yet. However, the timeframe for businesses to be in compliance is rapidly diminishing. Currently, there are less than five months for businesses to (a) familiarize themselves with what the law requires; (b) determine how and if they are affected by the law; and (c) determine how to be in compliance with the law's demands. Right now, companies aren't making a rush to become CCPA compliant, but this is a mistake. Below are a few of the misconceptions that businesses have, as well as the realities.
MISCONCEPTION 1: It doesn't apply to my company.
For many businesses, it will apply. The baseline of the CCPA is: (1) does the business do anything with California residents (including employees); (2) is it for-profit; and (3) it either has $25 million annual revenue, "sells" 50,000 pieces of personal information or receives 50% or more of its revenue from personal information.
It does not matter if the business is in Nevada, Arizona, Texas or Delaware. So long as there is some connection to Californian residents, exists to make a profit, and otherwise satisfies either the profit, volume, or revenue percentage requirements, it applies. On that note, even if a business does not sell personal information, it does not mean it does not "sell" personal information under the law, as it includes any exchange of personal information for valuable consideration, such as the exchange of consumer data between companies, or the sale of information to a University for study.
MISCONCEPTION 2: The Federal Government will stop it.
One of the main reasons we have the CCPA is because the Federal Government has not acted on this issue. Furthermore, there is a high likelihood that any Federal law will not be substantially different from the CCPA, keeping the core principles in place. It's also unlikely that such a law will take effect and be passed in the remaining five months before the CCPA begins enforcement. Companies must accept that ideals of transparency, choice, consent and reasonable security as they relate to consumers' personal information are here to stay.
MISCONCEPTION 3: California is still changing the law, so I should wait.
California is still in the process of fine-tuning the CCPA, but this is no reason to wait. Fixes to questions arising regarding the CCPA have come out piecemeal, and continued changes, including expansions are likely. For example, employees were previously not addressed specifically within the CCPA, but are being addressed in the planned AB 25, excluding employees from some of the CCPA's protections. Conversely, there have also been planned provisions to expand on the protections and enforcement mechanisms of the CCPA, including a broad and expansive private right of action to permit individuals to sue for technical violations of the statute, like having to wait too long for a response to the demand, even if no actual damage is suffered. Again, the foundational requirements of the CCPA will not change via amendment – so companies should act now.
MISCONCEPTION 4: It's too expensive.
Actually no. Many of the basic actions are not cost-prohibitive, and are actions a business would want to do anyways: (a) Employee training to avoid data breaches and how to respond to user requests; (b) data mapping to quickly find, access, and arrange protections for consumer data; and (c) ensuring you have reasonable cyber security. This can even be turned into a competitive advantage, as consumers increasingly value companies that share their interests, including their privacy.
A compliance mistake could be extraordinarily costly. Currently, a violation for statutory violations of the CCPA can carry a penalty between $2,500 to $7,500 per individual violation. Furthermore, there is a private right of action with statutory damages of $100 to $750 per individual violation that could quickly balloon to exceed $5 million at a minimum, and invites class action/lawsuits for a data breach.
While this is true of almost every legal risk, an ounce of prevention is worth a pound of cure. The penalties on the higher end of the spectrum are for willful violations, and attempts to comply with the law can act to curb potential risks.
What Should I Do?
If you feel CCPA compliance is important to your business, and decide to prepare for the CCPA with us, our firm has created a 90-day CCPA compliance program where our team will collaborate with you to determine a scalable, practical, and reasonable way for you to meet your needs, without breaking the bank. Let us provide you a free initial consultation to see if our CCPA compliance program works for you.
Kyle Janecek is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis is the head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that align with the business objectives of clients in diverse industries. With over 70 attorneys working as an integrated team to represent clients in all aspects of business, employment, real estate, privacy & data security and insurance law, Newmeyer Dillion delivers tailored legal services to propel clients' business growth. 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 Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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ETF Bulls Bet Spring Will Thaw the U.S. Housing Market
April 08, 2014 —
Corinne Gretler – BloombergBuild it and they will come, if it’s not too chilly.
Traders have turned bullish on a security that tracks home construction companies, appliance makers and furniture retailers as spring finally ends the harsh winter.
As the SPDR S&P Homebuilders ETF (XHB) heads for its first weekly gain since February, investors are buying options betting that the rebound will keep going. The cost of bullish contracts has risen to the highest versus bearish ones in 2 ½ years. The ETF has gained 2.2 percent this week.
The exchange-traded fund of companies such as Ryland Group Inc., Whirlpool Corp. and Home Depot Inc. has rebounded 8 percent after reaching its lowest level this year on Feb. 3 as investors attribute weakness in the housing market to winter weather. Between December and February, snow covered 1.42 million square miles of the continental U.S., the 10th-largest snow cover in records going back to 1966, according to the National Climatic Data Center.
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Corinne Gretler, BloombergMs. Gretler may be contacted at
cgretler1@bloomberg.net
