Wildfire Is Efficient Proximate Cause of Moisture Reaching Expansive Soils Under Residence
November 05, 2014 —
Tred R. Eyerly - Insurance Law HawaiiThe court considered whether a wildfire (covered risk) or moisture in the soils (excluded risk) was the cause of damage to the insureds' home. Encompass Ins. Co. v. Berger, 2014 U.S. Dist. LEXIS 142870 (C.D. Cal. Oct. 7, 2014).
In May 2009, the Jesusita Fire caused damage to the insureds' home and surrounding area. The west wall of the house was burned, causing damage to a bedroom. A shed, hot tub, wooden decks and some vegetation, including eucalyptus trees, were damaged.
The insureds submitted a claim to Encompass. Eventually, Encompass spent $400,000 repairing the property.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Claims against Broker for Insufficient Coverage Fail
May 10, 2021 —
Tred R. Eyerly - Insurance Law HawaiiAfter a coverage dispute for damage caused by Hurricane Harvey was settled, the insured's claims against its insurance broker for providing insufficient coverage were dismissed. Hitchcock Indep. Sch. Dist. v. Arthur J. Gallagher & Co., 2021 U.S. Dist. LEXIS 57452 (S.D. Texas Feb. 26, 2021).
The School District suffered $3.5 million in property damage after Hurricane Harvey struck. Its insurers denied coverage and the School District sued. During the litigation, the School District learned that the policies contained an arbitration clause and a New York choice of law provision. Rather than pursue its claims in arbitration, the School District settled with its insurers and sued its broker for failing to obtain insurance without arbitration or choice of law provisions. The broker moved to dismiss
The School District claimed that it had to settle with the insurers for less than what it would have settled had the arbitration and choice of law provisions not been in its policies. The court found this novel theory to be based upon pure speculation
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Claim for Punitive Damages Based on Insurers' Alleged Bad Faith Business Practices Fails
September 05, 2022 —
Tred R. Eyerly - Insurance Law HawaiiThe court granted the insurer's motion to dismiss the bad faith claim based upon allegations of a general business practice of acting recklessly toward an insured's rights under the policy. Sandpiper Isle Condo. Ass'n v. Empire Indem. Ins. Co., 2022 U.S. Dist. LEXIS 114279 (M.D. Fla. June 28, 2022).
Sandpiper suffered property damage from Hurricane Irma. Empire accepted the claim but there was disagreement on the value of the damage. An appraisal issued an award in favor of Sandpiper but Empire failed to pay the benefits for two years.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Insurer Doomed in Delaware by the Sutton Rule
September 12, 2023 —
Katherine Dempsey - The Subrogation StrategistIn Donegal Mut. Ins. Co. v. Thangavel, No. 379, 2022, 2023 Del. LEXIS 227, the Supreme Court of Delaware (Supreme Court) considered whether the Sutton Rule prevented the plaintiff from pursuing subrogation against the defendants. As applied in Delaware, the Sutton Rule explains that landlords and tenants are co-insureds under the landlord’s fire insurance policy unless a tenant’s lease clearly expresses an intent to the contrary. If the Sutton Rule applies, the landlord’s insurer cannot pursue the tenant for the landlord’s damages by way of subrogation. Here, the Supreme Court affirmed the trial court’s decision that the Sutton Rule applied because the lease did not clearly express an intent to hold the tenants liable for the landlord’s damages.
In Thangavel, the plaintiff, Donegal Mutual Insurance Company (Insurer), provided property insurance to Seaford Apartment Ventures, LLC (Landlord) for a residential property in Delaware. Sathiyaselvam Thangavel and Sasikala Muthusamy (Tenants) leased an apartment (the Premises) from Landlord and signed a lease. Insurer alleged that Tenants hit a sprinkler head while flying a drone inside the Premises which caused water to spray from the damaged sprinkler head, resulting in property damage to the Premises. Landlord filed an insurance claim with Insurer, who paid Landlord $77,704.06 to repair the damage. Insurer then sought to recover the repair costs from Tenants via subrogation.
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Katherine Dempsey, White and Williams LLPMs. Dempsey may be contacted at
dempseyk@whiteandwilliams.com
A New Perspective on Mapping Construction Sites with the Crane Camera System
November 10, 2016 —
Aarni Heiskanen – AEC BusinessIn this interview, Julian Norton, Business Development Manager of Pix4D, talks about the company’s innovative mapping system for construction sites. Pix4D has just launched an early adopter program and is looking for test users.
Can you say a few words about your company’s background and mission?
Pix4D was founded in 2011 as a spinoff of EPFL, a leading Swiss tech university. The years of leading scientific research in photogrammetry and computer vision done by our founders was applied to drones long before drone mapping became a “thing.” Fast forward through more years of hard work to now, and you’ll see Pix4D specialized in professional drone mapping software to produce orthomosaics, 3D models, digital surface models, point clouds and more, all from images.
Our solutions are purposed towards four main industries: surveying, agriculture, real estate and construction. We want our professional clients to benefit from our unique hybrid approach, which combines mobile data capture with cloud and desktop hardware, to conduct mapping in a way that fits them best.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aarni@aepartners.fi
The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction
December 20, 2021 —
Luke Mecklenburg - Snell & Wilmer Real Estate Litigation BlogLast year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2. Thus, Woodbridge II concluded, the claimants acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context. Id. That decision was up for review by the Colorado Supreme Court at the time of my prior post. It has now been affirmed, thereby settling an arguable appellate decision split created by Woodbridge II. See Lo Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 2021 CO 56 (“Woodbridge”).
“Like the division below, and for much the same reasons,” the Colorado Supreme Court affirmed in Woodbridge “that under Colorado law, a claimant’s acknowledgement or recognition of the owner’s title during the claimant’s asserted prescriptive period does not interrupt the prescriptive use or undermine the claimant’s adverse use.” Woodbridge, ¶ 2. Writing for a unanimous court, Justice Gabriel’s opinion agreed with the Court of Appeals’ reasoning “that although Woodbridge recognized that it did not hold title, no evidence indicated that it had acted in subordination to the owner’s title.” Id. ¶ at 13. The Court further agreed with Woodbridge II’srejection of Lo Viento’s “permissive use” argument because “the permission offered … was conditional and Woodbridge never agreed to any of the conditions set forth therein.” Id. On that basis, Woodbridge confirmed that “a claimant seeking to establish a prescriptive easement need not show that it asserted exclusive ownership of the property during the prescriptive period,” but only “that its use was without permission or otherwise unauthorized and that it interfered with the owner’s property interests.” Id. at ¶ 23.
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Luke Mecklenburg, Snell & WilmerMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
Does Your U.S. Company Pull Data From European Citizens? Fall In Line With GDPR by May 2018 or Suffer Substantial Fines
November 15, 2017 —
Jeff Dennis & Ivo Daniele – Newmeyer & Dillion, LLPThe European Union (“EU”) has enacted a strict, comprehensive framework of security regulations aimed to protect its citizens. These regulations, known as the General Data Protection Regulation (“GDPR”), provide a blueprint for a combination of required legal, technological and work habits within an organization. Although this is an EU regulation, the new laws will apply to any organization within or outside the EU that collects or processes data of EU citizens. Therefore, U.S. companies must analyze their data and processes to determine whether compliance with the GDPR is necessary. A quickly-approaching deadline of May 25, 2018 must be met to avoid massive fines.
What is the GDPR?
In order to address the creation of social networking sites, cloud computing, and location-based services, the EU set in motion a process to implement a vigorous set of rules to ensure the right to personal data protection for all European citizens. In April 2016 the European Parliament, the Council, and the Commission adopted a new GDPR, which will take affect on May 25, 2018.
This GDPR will streamline cooperation between the data protection authorities on personal data issues allowing companies to deal with one authority - not each of the 28 EU member states. This will allow for quicker decisions by the data protection authorities and greatly reduce the red tape in both compliance and enforcement under the GDPR. This will also create a level playing field by forcing non-EU companies to comply with the same strict regulations - regardless of whether or not the company is established in the EU.
Territorial scope of the GDPR
The GDPR applies directly to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU - regardless of whether the processing takes place in the EU. Additionally, there are specific provisions under the GDPR that apply to non-EU companies if their processing activities relate to (a) the offering of goods or services (irrespective of whether a payment of the data subject is required) or (b) monitoring the behavior of individuals within the EU. Therefore, all companies must determine whether they process or monitor information of EU citizens. If a company falls within one of these categories, compliance with the GDPR is mandatory.
What happens if a company fails to comply with the GDPR?
Failure to comply with the GDPR could subject a company to crushing administrative fines.
The supervisory authority has the power to impose administrative fines under the GDPR. The following violations and breaches would subject a company to administrative fines:
- Not adhering to the core principles of processing personal data,
- Breach of notification to EU citizens by controllers and processors,
- Wrongful transfer of personal data to non-EU countries,
- Breach of obligations regarding certification,
- Ignoring the mandates asserted by the supervisory authority,
- Breach by those responsible for impact assessment, and
- Wrongful processing of employee data.
The extent of the violation and type of personal data involved will dictate the severity of the administrative fines imposed on a company. For example, under the GDPR, a company could be subject to administrative fines up to 20,000,000 EUR, or up to 4% of the total worldwide annual revenue of the preceding financial year. Obviously, these fines would be financially crippling to any company.
Preparing for May 25, 2018
The May 25, 2018 deadline is fast approaching and preparing for full compliance with the GDPR is paramount. Simple steps should be taken to ensure compliance including to:
(1) Review and analyze data repositories for sensitive data,
(2) Perform an analysis/accounting of procedure for data collection, and
(3) Create an oversite committee dedicated to data activities and compliance.
Most importantly, however, is to determine whether compliance with the GDPR is necessary, and strictly follow the requirements of the GDPR to protect from potentially massive fines.
Jeffrey M. Dennis currently serves as Newmeyer & Dillion’s Managing Partner and as a business leader, advises his clients on cybersecurity related issues, introducing contractual and insurance opportunities to lessen their risk. You can reach Jeff at jeff.dennis@ndlf.com.
Ivo Daniele is a seasoned associate in Newmeyer & Dillion’s Walnut Creek office. His practice includes representing private and public companies with both their transactional and litigation needs. You can reach Ivo at ivo.daniele@ndlf.com.
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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Does Your U.S. Company Pull Data From European Citizens? Fall In Line With GDPR by May 2018 or Suffer Substantial Fines
Confidence Among U.S. Homebuilders Little Changed in January
January 28, 2015 —
Bloomberg News(Bloomberg) -- Confidence among U.S. homebuilders hovered in January close to a nine-year high, indicating the residential real estate market is poised to expand this year.
While the National Association of Home Builders/Wells Fargo builder sentiment gauge fell to 57 this month from 58 in December, readings greater than 50 mean more respondents report good market conditions, according to figures issued from the Washington-based group Tuesday. The median forecast in a Bloomberg survey called for 58.
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Bloomberg News
