Additional Insured is Loss Payee after Hurricane Damage
October 01, 2024 —
Tred R. Eyerly - Insurance Law HawaiiConstruing the policy language, the federal district court found that the policy's additional insured was the loss payee for damage caused by Hurricanes Laura and Delta. TCP Ryan St. LLC v. Weschester Surplus Lines Ins. Co., 2024 U.S. Dist. LEXIS 125529 (W.D. La. July 16, 2024).
Hurricanes Laura and Delta caused damage to TCP Ryan Street, LLC's (TCP) property. Westchester had issued a policy to MRI Heritage Brand, Inc. (MRI). MRI, as lessee, was obligated pursuant to the lease terms to "purchase and maintain . . . a policy of fire, extended coverage, vandalism and malicious mischief (or 'all risk') insurance coverage on all real property situated at the Lease Premises." The lease also required MRI to obtain coverage under a policy naming only the landlord as the sole insured and provided that the proceeds would be payable to the landlord.
The policy provided that no entity was covered unless Westchester had received identifying information for the entity during the application process or the entity was added by endorsement.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Indiana Court of Appeals Holds That Lease Terms Bar Landlord’s Carrier From Subrogating Against Commercial Tenant
April 03, 2019 —
Gus Sara - The Subrogation StrategistIn Youell v. Cincinnati Ins. Co., 2018 Ind. App. LEXIS 497 (2018), the Court of Appeals of Indiana considered whether a landlord’s carrier could bring a subrogation claim against a commercial tenant for fire-related damages when the lease, which did not reference subrogation, explicitly required the landlord to maintain fire insurance coverage for the leased premises. The court held that subrogation was barred because the provision requiring the landlord to maintain fire insurance established an agreement to provide both parties with the benefits of insurance. The Youell case establishes that, in Indiana, if the lease explicitly states that the landlord will maintain fire casualty insurance for the building, the lease evidences an agreement by the parties to shift the risk of loss to the insurer. This agreement bars a landlord’s insurance carrier from subrogating against a commercial tenant in the event of a casualty.
In 2013, the building owner, Greg Dotson, began leasing a commercial building to Robert Youell for his tire business, Best One Giant Tire, Inc. (collectively, Youell). The lease agreement required that the landlord maintain fire and extended coverage insurance on the building and the leased premises. The lease also required the tenant to purchase fire and extended coverage insurance for its personal property. The lease did not mention subrogation. Dotson obtained a property insurance policy through Cincinnati Insurance.
Read the court decisionRead the full story...Reprinted courtesy of
Gus Sara, White and Williams LLPMr. Sara may be contacted at
sarag@whiteandwilliams.com
Hunton Andrews Kurth Insurance Attorney, Latosha M. Ellis, Honored by Business Insurance Magazine
May 03, 2021 —
Andrea DeField & Michael S. Levine - Hunton Andrews KurthWe are proud to share that Business Insurance has named Hunton Andrews Kurth insurance coverage associate, Latosha M. Ellis, one of the magazine’s 2021 Break Out Award winners. Business Insurance’s Break Out Awards honor 40 top professionals from around the country each year who are expected to be the next leaders in risk management and the property/casualty insurance field. Business Insurance reviewed hundreds of nominees, all of whom have worked in commercial insurance or related sectors for under 15 years. Out of those hundreds, Latosha was selected as one of the 40 honorees for 2021.
Latosha is well-deserving of this honor. She is committed to excellence in the practice of law and in her service to clients, both of which have earned her a sterling reputation in the Virginia and District of Columbia legal communities. In addition to her litigation success and excellent client service skills, Latosha is a leader, both in the firm and in the legal community. Latosha not only serves as a mentor to several young attorneys at our firm, but she is also a board member of the University of Richmond Law School Alumni Board (currently serving on a three-year term) and a planning member of the American Bar Association’s (ABA) professional development committee. She also co-chaired the 2021 ABA Insurance Coverage and Litigation Committee Annual CLE Conference, for which she implemented new diversity and inclusion standards and ensured several program sessions geared towards young lawyers. In addition, Latosha was selected as the firm’s 2019 Pathfinder for the Leadership Council for Legal Diversity, serves on the executive board of the Women’s Bar Association of the District of Columbia, and was inducted into the American Bar Association’s Section of Litigation Young Lawyer Leadership Program.
Reprinted courtesy of
Andrea DeField, Hunton Andrews Kurth and
Michael S. Levine, Hunton Andrews Kurth
Ms. DeField may be contacted at adefield@HuntonAK.com
Mr. Levine may be contacted at mlevine@HuntonAK.com
Read the court decisionRead the full story...Reprinted courtesy of
BWB&O’s Los Angeles Partner Eileen Gaisford and Associate Kelsey Kohnen Win a Motion for Terminating Sanctions!
April 25, 2023 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPCongratulations to Bremer Whyte Brown & O’Meara, LLP Partner Eileen Gaisford and Associate Kelsey Kohnen for successfully arguing and winning a Motion for Terminating Sanctions for BWB&O’s client, a hotel in Los Angeles County. The court granted BWB&O’s Motion for Terminating Sanctions and Plaintiff’s Complaint was dismissed with prejudice.
Plaintiff filed a complaint alleging she sustained multiple injuries after a slip and fall in a hotel. Plaintiff’s complaint alleged that BWB&O’s client was negligent, careless, and reckless in the ownership, care, control, and maintenance of the premises. BWB&O aggressively defended its client and filed several motions, arguing Plaintiff’s conduct abused the discovery process. The Court sided with BWB&O and granted its Motion for Terminating Sanctions, and the lawsuit was dismissed with prejudice.
Read the court decisionRead the full story...Reprinted courtesy of
Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
DOI Aims to Modernize its “Inefficient and Inflexible” Type A Natural Resource Damages Assessment Regulations
March 25, 2024 —
Amanda G. Halter, Jillian Marullo & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law BlogThe U.S. Department of the Interior (DOI) published a
proposed rule aimed at modernizing and streamlining the “Type A” Natural Resource Damage Assessment (NRDA) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Water Act (CWA). (The comment deadline was later
extended.) The revisions,
first previewed in a January 2023 Advanced Notice of Proposed Rulemaking (ANPR), are intended to fulfill “the original statutory purpose of providing a streamlined and simplified assessment process” with the overarching goal of facilitating settlements and expediting restoration efforts following injury resulting from pollution in a broader range of cases.
The NRDA regulations provide two paths to assessing natural resource damages (NRD): (1) the more complex, site-specific Type B procedures for detailed NRDAs and (2) what is intended to be the standard, simplified Type A assessment procedures requiring minimal field observation. Particularly, the Type A process is reserved for two specific aquatic environments (coastal and marine areas or Great Lakes environments) when a relatively minor release of a single hazardous substance occurs, resulting in a smaller scale and scope of natural resource injury, and the rebuttal presumption for the Type A procedure is limited to damages of $100,000 or less under the current version of the rule.
Reprinted courtesy of
Amanda G. Halter, Pillsbury,
Jillian Marullo, Pillsbury and
Ashleigh Myers, Pillsbury
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Up in Smoke - 5th Circuit Finds No Coverage for Hydrochloric Acid Spill Based on Pollution Exclusion
October 19, 2020 —
Kerianne E. Kane & David G. Jordan - Saxe Doernberger & VitaThe Fifth Circuit Court of Appeals recently held that an insurer was not obligated to pay damages associated with a hydrochloric acid spill based on a pollution exclusion in the policy.
In Burroughs Diesel, Inc. v. Travelers Indemnity Co. of America,1 a trucking company sued its property insurer, Travelers Indemnity Company of America (“Travelers”) when it refused to pay a claim for a storage tank leak which resulted in over 5,000 gallons of hydrochloric acid entering the property and causing significant damage to buildings, vehicles, tools, and equipment. The acid was initially dispensed in liquid form, but quickly became a cloud that engulfed the property. Travelers denied coverage for the claim based on the pollution exclusion because “acids” fell within the policy’s definition of “pollutants.”
The trucking company sued Travelers in the United States District Court for the Southern District of Mississippi, alleging breach of contract and breach of good faith and fair dealing for refusing to pay the claim. The trucking company argued that coverage was warranted because there is an exception to the pollution exclusion if “the discharge, dispersal, seepage, migration, release or escape is itself caused by any of the ‘specified causes of loss,’” and the hydrochloric acid cloud was a form of “smoke,” which is a specified cause of loss covered by the policy. The District Court entered summary judgment in favor of Travelers, finding that the trucking company failed to demonstrate that an exception to the pollution exclusion applied. The trucking company appealed to the Fifth Circuit Court of Appeals.
Reprinted courtesy of
Kerianne E. Kane, Saxe Doernberger & Vita and
David G. Jordan, Saxe Doernberger & Vita
Ms. Kane may be contacted at kek@sdvlaw.com
Mr. Jordan may be contacted at dgj@sdvlaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Nine Newmeyer & Dillion Attorneys Recognized as Southern California Super Lawyers
February 11, 2019 —
Newmeyer & Dillion LLPProminent business and real estate law firm Newmeyer & Dillion LLP is pleased to announce that nine of its Newport Beach attorneys have been selected to the 2019 Southern California Super Lawyers list. Each year, no more than 5 percent of lawyers are selected to receive this honor.
Attorneys named to the Southern California Super Lawyers list include:
Michael Cucchissi
Jeff Dennis
Greg Dillion
Joseph Ferrentino
Charles Krolikowski
John O'Hara
Jane Samson
Michael Studenka
Paul Tetzloff
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.
About Newmeyer & Dillion
For almost 35 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, privacy & data security 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.
Read the court decisionRead the full story...Reprinted courtesy of
Nevada’s Home Building Industry can Breathe Easier: No Action on SB250 Leaves Current Attorney’s Fees Provision Intact
June 21, 2017 —
Aaron Lovaas – Newmeyer & Dillion LLPConstruction and design professionals in Nevada’s home building industry breathed a collective sigh of relief on June 5, 2017 when the 79th Session of the Nevada Legislature adjourned without entertaining Senate Bill 250, which sought to reinstate homeowner plaintiffs’ nearly automatic right to recover attorneys’ fees, expert costs, and costs of investigation when bringing suit for alleged constructional defects.
Until 2015, homeowners’ recovery of such damages was the reality of the construction defect landscape in Nevada. While Chapter 40 of the Nevada Revised Statutes specifically allowed for recovery of “reasonable” attorneys’ fees, expert costs, and costs of investigation, the trend in Nevada was that plaintiffs were all but guaranteed awards of all such sums. Of course, this environment incentivized plaintiffs’ lawyers to bring claims of questionable or little repair value in cases where the attorney’s fees and expert costs often far exceeded the costs of repair.
HOW AB125 CHANGED THE LANDSCAPE
Such was the reality in Nevada until 2015 and the passage of Assembly Bill 125, which eliminated the nearly automatic award of attorneys’ fees and expert costs and overhauled Chapter 40 in many other respects. AB125 made over portions of Chapter 40 by:
- Placing awards of attorneys’ fees into the framework of offers of judgment, utilized extensively in other fields of civil litigation and available equally to homeowner plaintiffs as well as construction industry defendants; and
- Reworking expert costs and costs of investigation to allow for the award of those items only in the case of proven defects and only as to those costs directly related to the investigation and proof of those defects.
INTRODUCING SB250
The 2017 Legislative Session saw efforts to return Chapter 40 to its pre-2015 version through the introduction of SB250. Fortunately for construction and design professionals in the home building industry in Nevada, the State Senate Judiciary Committee did not act upon the bill and the effort died having never made it to a floor vote. Considering that Nevada’s Legislature meets biannually, the current framework of Chapter 40 is intact until at least 2019. The 2017 Legislative Session, however, is an illustration to how quickly those of the construction defect plaintiffs’ bar can move to initiate efforts to turn back the clock to a much riskier time for construction and design professionals.
Those in the industry should remain vigilant and monitor future legislative efforts to reinstate such awards or other clearly anti-builder measures. Such measures simply drive-up the overall cost and expense of home construction and, in turn, home ownership, which it is often said, is one of the cornerstones of the American dream.
Aaron Lovaas is a partner in the Las Vegas office of Newmeyer & Dillion. As a transactional attorney and business litigator, Aaron has the ability to evaluate legal issues from both points of view and help his clients understand their best option. He can be reached at aaron.lovaas@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.
Read the court decisionRead the full story...Reprinted courtesy of
