Top 10 Insurance Cases of 2020
January 11, 2021 —
Grace V. Hebbel, Andrew G. Heckler & Jeffrey J. Vita - Saxe Doernberger & Vita P.C.COVID-19 business interruption coverage litigation may have stolen the show in 2020, but those cases should not eclipse other important insurance coverage cases decided throughout this past year. As the courts nationwide struggled with the insurance coverage implications of COVID-19 related business loss, other significant coverage decisions were overshadowed. Read on to learn about how computer glitches, biometric privacy, and a falling wheelbarrow have all played a role in\ shaping some of the most interesting and influential insurance coverage decisions of 2020, as well as get a sneak peek at the key coverage decisions looming in 2021. Enjoy!
1. Nash Street, LLC v. Main Street America Assurance Company,
No. 20389, 2020 WL 5415325 (Conn. 2020)
Do exclusions k(5) and k(6) absolve an insurer of its duty to defend its insured for allegations of faulty workmanship?
Reprinted courtesy of
Grace V. Hebbel, Saxe Doernberger & Vita P.C.,
Andrew G. Heckler, Saxe Doernberger & Vita P.C. and
Jeffrey J. Vita, Saxe Doernberger & Vita P.C.
Ms. Hebbel may be contacted at GHebbel@sdvlaw.com
Mr. Heckler may be contacted at AHeckler@sdvlaw.com
Mr. Vita may be contacted at JVita@sdvlaw.com
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New 2021 ALTA/NSPS Land Title Survey Standards Effective February 23, 2021
March 01, 2021 —
Emily K. Bias & Josh D. Morton - Gravel2Gavel Construction & Real Estate BlogThe “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys” is a document jointly promulgated by the American Land Title Association (ALTA), representing the title insurance industry, and the National Society of Professional Surveyors (NSPS), representing professional land surveyors, which describes the uniform minimum standards with which surveyors must comply when preparing a survey to be used by a title insurance company for the purpose of deleting the general survey exception from ALTA title policy forms. The first such set of standards was developed in 1962 and has since been revised 10 times. The standards are currently updated every five years and are relied on by real estate professionals, including purchasers, lenders, title insurers and their attorneys, nationwide. In October 2020, a joint committee comprising representatives of both ALTA and NSPS adopted the “2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” which will become effective on February 23, 2021. The significant changes between the 2021 standards and the previous 2016 standards are summarized below.
Survey Matters
The 2021 standards clarify that only survey-related matters must be summarized on the survey. This revision was intended to foreclose a practice common among some institutional lenders to require that the survey list all items shown in Schedule BII of the title commitment on the face of the survey regardless of whether those items may in fact be survey related. The 2021 standards also add a requirement that the surveyor include a note specifying whether the location of a right of way, easement or other survey-related matter is shown on the survey. This change incorporates common lender and purchaser requirements that were not previously enumerated in the survey standards.
Reprinted courtesy of
Emily K. Bias, Pillsbury and
Josh D. Morton, Pillsbury
Ms. Bias may be contacted at emily.bias@pillsburylaw.com
Mr. Morton may be contacted at josh.morton@pillsburylaw.com
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Congratulations to Nine Gibbs Giden Partners Selected to the 2023 Southern California Super Lawyers List
January 23, 2023 —
Gibbs Giden Locher Turner Senet & Wittbrodt, LLPNine Gibbs Giden partners have been selected to the 2023 Southern California Super Lawyers list for the third year in a row!
Congratulations to partners
Jason Adams
Barbara Gadbois
Sara Kornblatt
William Locher
Christopher Ng (Managing Partner)
Glenn Turner, III
Ted Senet
Richard Wittbrodt
Philip Zvonicek
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Home Prices in 20 U.S. Cities Rose at a Faster Pace in October
January 06, 2016 —
Victoria Stilwell & Michelle Jamrisko – BloombergHome values in 20 U.S. cities rose at a faster pace in the year ended October as lean inventories of available properties combined with steadily improving demand.
The S&P/Case-Shiller index of property values climbed 5.5 percent from October 2014 after rising 5.4 percent in the year ended September, the group said Tuesday in New York. The median projection of 21 economists surveyed by Bloomberg called for a 5.6 percent advance. Nationally, prices rose 5.2 percent year-over-year.
A limited supply of properties for sale has helped prop up home values, boosting the household wealth levels of U.S. homeowners in the process. Faster wage growth and continued low borrowing costs will be needed to keep low-income and first-time buyers in the market and provide the next leg of growth in the housing recovery.
Reprinted courtesy of
Victoria Stilwell, Bloomberg and
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Life After McMillin: Do Negligence and Strict Liability Causes of Action for Construction Defects Still Exist?
January 24, 2018 —
Thomas Balestreri and Amanda Crawley - Balestreri, Potocki, & HolmesThe ruling is in but the battle will likely continue over the practical application of SB 800. On January 18, 2018 the California Supreme Court issued its decision in
McMillin Albany, LLC v. Superior Court (Van Tassel) (January 18, 2018, S229762) __ Cal.4th __, holding that the statutory prelitigation scheme in The Right to Repair Act (“the Act”) that provides for notice and an opportunity for the Builder to repair defects applies to all claims for construction defects in residential construction sold on or after January 1, 2003, regardless whether the claim is founded on a violation of the Act’s performance standards or a common law claim for negligence or strict liability. (
McMillin Albany, LLC v. Superior Court (Van Tassel) (January 18, 2018, S229762) __ Cal.4th __.) With this holding, has the Court ruled that common law causes of action for construction defect still survive? If so, what will they look like and what standards will be applied?
The short answer is that it appears that common law causes of action still survive, at least for now, but it is not clear from this decision what they will look like and what standards will apply.
Portions of the decision seem to suggest that the Act is the sole and exclusive remedy for construction defect claims: “…even in some areas where the common law had supplied a remedy for construction defects resulting in property damage but not personal injury, the text and legislative history [of the statute] reflect a
clear and unequivocal intent to supplant common law negligence and strict product liability actions under the Act.” (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 6].) (Italics added for emphasis) However, at the end of the decision, the Court seems to be saying that there may still be a place for common law claims for negligence and strict liability alongside the Act but that these causes of action may be subject to the performance standards in the Act.
The
McMillin case went up to the Supreme Court on a procedural issue: whether a common law action alleging construction defects resulting in both economic loss and property damage is subject to the Act’s prelitigation notice and cure procedures. The Van Tassels had dismissed their claims under the Act opting to proceed solely on their common law claims including negligence and strict liability. McMillin sought a stay to force the Van Tassels to comply with the Act’s prelitigation procedures. The Supreme Court held that the Van Tassels must comply with the statutory procedures and affirmed the stay issued by the trial court. But the question remained: now that the Van Tassels were left only with common law claims, how would they proceed under the Act?
To understand how the Court dealt with this question, one must first understand how the Court dealt with the narrow procedural question presented by the case. The Court provides a very detailed, clear explanation of the reasons why it felt the Legislature intended for all construction defect claims involving residential construction must comply with the prelitigation requirements of the Act. In summing up its conclusions the Court makes three definitive holdings.
First, for claims involving economic loss only—the kind of claims involved in
Aas—the Court holds that the Legislature intended to supersede
Aas and provide a statutory basis for recovery. (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 10].) In other words, the Court clearly agrees that the Act was meant to allow recovery of damages based solely on economic damages. No surprise there. Second, the Court held for personal injuries, the Legislature made no changes to existing law that provides common law remedies for the injured party. (Id.) Nobody has ever contested that. Finally, the Court held that for construction defect claims involving property damage and not just economic loss “the Legislature replaced the common law
methods of recovery with the new statutory scheme.” (
Id.,) (Italics added for emphasis.)
In other words, the Court is not saying that negligence and strict liability are not permitted causes of action. The Court is merely stating that these causes of action must comply with the Act’s statutory scheme just as the same as a claim for economic loss. Here the Court is focusing on the procedure that must be followed. “The Act, in effect, provides that construction defect claims not involving personal injury will be treated the same procedurally going forward whether or not the underlying claims gave rise to any property damage.” (
Id.)
Having laid out its fundamental premise, the Court then deals with Plaintiff’s arguments regarding the intent of the Legislature and makes light work of them all. In the process, the Court disapproves
Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal. App. 4th 98, and
Burch v. Superior Court (2014) 223 Cal. App. 4th 1411, to the extent they are inconsistent with the views expressed in the
McMillin opinion.
This is where the decision gets interesting. The Court reminds us that the Van Tassels had dismissed their statutory causes of action for violation of the performance standards under Section 896. One would think at that point that Plaintiffs had to be wondering if they had any claims left given that the Court had ruled that the Act was the sole means of recovery for construction defects. Not so fast. The Court points out that the complaint still rests on allegations of defective construction and that the suit remains an “ ‘action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction’ of the plaintiffs’ homes (§896)
and McMillin’s liability under the Van Tassels’ negligence and strict liability claims depends on the extent to which it [McMillin] violated the standards of sections 896 and 897.” (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 19].) (Emphasis added.) WHAT DID THE COURT JUST SAY? Did the Court just say that a plaintiff could bring a common law cause of action for negligence or strict liability based on a violation of the performance standards under Section 896? What exactly would that claim look like? What would be the elements of such a cause of action?
To answer these questions, the Court states in the very next paragraph, which also happens to be the last paragraph in the decision: “In holding that claims seeking recovery for construction defect damages are subject to the Act’s prelitigation procedures regardless of how they are pleaded,
we have no occasion to address the extent to which a party might rely upon common law principles in pursuing liability under the Act.” (
McMillin (January 18, 2018, S229762) __Cal.4th.__ [p. 19].) (Italics added for emphasis) Is the Court answering “No” to the questions posed above? Probably not. It is simply following the age old rule that an appellate court will
not rule on an issue that is not specifically presented by an appeal, leaving that question for another day.
All we know for sure from
McMillin is that every claim for construction defects falling within the scope of the Act must follow the prelitigation procedure. There are no hall passes for negligence and strict liability. The larger question posed by the last two paragraphs in the decision, is whether the law recognizes a cause of action for negligence and strict liability for construction defects based on the standards in Section 896. The answer will have to be worked out by judges and trial attorneys in courtrooms across the State! The parameters of this hybrid cause of action that the Court seems to have posited will need more careful consideration than can be offered on first reading of
McMillin v. Superior Court.
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Balestreri, Potocki, & Holmes
New Jersey Law regarding Prior Expert’s Testimony
April 15, 2014 —
Beverley BevenFlorez-CDJ STAFFMary Pat Gallagher writing for the New Jersey Law Journal reported that “[l]awyers who track down an opposing expert's testimony from prior cases must disclose that fact during discovery but need not say whether they plan to use it in cross-examining the expert at trial, a New Jersey appeals court says.” In Dalton v. Crawley, the Appellate Division held that “[d]ecisions about cross-examination ‘involve the attorney's mental processes, so they are inherently work product.’”
The issue began when “one of the defense lawyers, Michael McGann, figured out from the deposition questions Mahoney directed at one of his experts that he had transcripts of testimony from earlier cases,” according to the New Jersey Law Journal. “Hit with a notice to produce the transcripts, [Plaintiff attorney Brian] Mahoney refused, saying they were ‘attorney work product and we will not be telling you what we have developed regarding this expert.’"
The New Jersey Law Journal declared that the “ruling means both sides will have to indicate what transcripts they have gathered for use—giving the name of each expert as well as the name and docket number of the prior cases where those experts testified. “
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Were Quake Standards Illegally Altered for PG&E Nuclear Power Plant?
October 29, 2014 —
Beverley BevenFlorez-CDJ STAFFAn environmental group has brought a lawsuit alleging that “[f]ederal regulators secretly and illegally revised the license for California’s last nuclear power facility — PG&E’s Diablo Canyon — to mask the aging plant’s vulnerability to earthquakes,” according to SF Gate.
Friends of the Earth’s “suit claims that the Nuclear Regulatory Commission and Pacific Gas and Electric Co. last year changed a key element of the plant’s license related to seismic safety without allowing public input as required by law — or even notifying the public at all.”
However, spokesman Blair Jones claimed that “Friends of the Earth continues to mischaracterize the facts regarding seismic safety at Diablo Canyon. The facts are Diablo Canyon was built with earthquake safety at the forefront, is a seismically safe facility, and is in compliance with NRC licensing requirements.”
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Los Angeles Tower Halted Over Earthquake and other Concerns
December 04, 2013 —
CDJ STAFFPlans to build the Millennium Hollywood project have been halted over lawsuits alleging that the Hollywood fault line runs under the site and would render it unsafe. Additional claims are that the buildings would block views of the Hollywood sign. But Robert Silverstein alleges in his suit that the buildings would endanger lives.
The Millennium claims that the project would create about 3,000 construction jobs, and that after the building were complete, they would create 1,000 jobs.
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