California Superior Court Overrules Insurer's Demurrer on COVID-19 Claim
February 15, 2021 —
Tred R. Eyerly - Insurance Law HawaiiA Superior Court in California overruled the insurer's demurrer to the policy holder's complaint seeking business interruption coverage after government shutdown orders were issued because of the coronavirus pandemic. Goodwill Industries of Orange County, California v. Philadelphia Indemnity Ins. Co., Cal. Superior Ct., Civil No. 30-2020-01169032-CU-IC-CXC (Minute Order Jan. 28,, 2021). The minute order is here [Goodwill Decision].
The insurer demurred on the ground that the insured had not alleged sufficient facts to show "direct physical loss" under the business income, extra expenses and civil authority provisions in the policy because coronavirus and COVID-19 did not physically alter the structure.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
UPDATE: Trade Secrets Pact Allows Resumed Work on $2.6B Ga. Battery Plant
April 19, 2021 —
Mary B. Powers - Engineering News-RecordConstruction on a $2.6-billion battery manufacturing plant near Atlanta can continue under an agreement reached April 11 between two rival South Korean auto battery makers—including SK Innovation, which is owner of the half-completed project.
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Mary B. Powers, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Woodbridge II and the Nuanced Meaning of “Adverse Use” in Hostile Property Rights Cases in Colorado
November 23, 2020 —
Luke Mecklenburg - Snell & Wilmer Real Estate Litigation BlogEarlier this year, the Colorado Court of Appeals issued an opinion addressing at length “whether the requirement that the use be ‘adverse’ in the adverse possession context is coextensive with adverse use in the prescriptive easement context.” See Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2, cert. granted, No. 20SC292, 2020 WL 5405376 (Colo. Sept. 8, 2020). As detailed below, the Woodbridge II court concluded that the meanings of “adverse” in these two contexts are not coextensive—while “hostility” in the adverse possession context requires a claim of exclusive ownership of the property, a party claiming a prescriptive easement is only required to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Thus, the Woodbridge II court reasoned a claimants’ acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context.
This significant ruling is at odds with a prior division’s broad statement, while considering a prescriptive easement claim, that “[i]n general, when an adverse occupier acknowledges or recognizes the title of the owner during the occupant’s claimed prescriptive period, the occupant interrupts the prescriptive use.” See Trask v. Nozisko, 134 P.3d 544, 553 (Colo. App. 2006). Perhaps for that reason, Woodbridge II is currently pending certiorari review before the Colorado Supreme Court in a case that should provide some much-needed clarity on what constitutes “adverse use” in the context of a prescriptive easement. As we await the Colorado Supreme Court’s decision, I thought it worthwhile to provide a brief analysis of the Woodbridge II court’s deep dive into the nuances of “adverse use” in this field of Colorado law.
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Luke Mecklenburg, Snell & WilmerMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
New York Appellate Court Addresses “Trigger of Coverage” for Asbestos Claims and Other Coverage Issues
November 30, 2020 —
Paul A. Briganti - Complex Insurance Coverage ReporterOn October 9, 2020, the New York Supreme Court, Appellate Division, Fourth Department, decided an appeal from a trial court’s 2018 summary judgment ruling on a number of coverage issues arising out of asbestos-related bodily injury claims against plaintiffs Carrier Corporation (Carrier) and Elliott Company (Elliott). See Carrier Corp. v. Allstate Ins. Co., No. 396 CA 18-02292, Mem. & Order (N.Y. Sup. Ct. App. Div. 4th Dep’t Oct. 9, 2020).
The Fourth Department reversed the trial court’s ruling that, under New York’s “injury in fact trigger of coverage,” injury occurs from the first date of exposure to asbestos through death or the filing of suit as a matter of law. The parties agreed that, because the policy language at issue required personal injury to take place “during the policy period,” “the applicable test in determining what event constitutes personal injury sufficient to trigger coverage is injury-in-fact, ‘which rests on when the injury, sickness, disease or disability actually began.’” Id. at 3 (quoting Cont’l Cas. Co. v. Rapid-American Corp., 609 N.E.2d 506, 511 (N.Y. 1993)). The Fourth Department concluded that, in resolving the issue, the trial court erred by relying on inapposite decisions in other cases where: (1) the parties had stipulated or otherwise not disputed that first exposure triggered coverage[1]; or (2) the issue had not been resolved on summary judgment, but rather at trial based on expert medical evidence[2]. The Fourth Department further explained that, even if plaintiffs here had met their initial burden on summary judgment by submitting admissible evidence that asbestos-related injury actually begins upon first exposure, the defendant-insurer’s opposition – which included affidavits of medical experts contradicting that evidence and averring instead that “harm occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body’s defense mechanisms” – raised a triable issue of fact. Id. at 4. The Fourth Department also rejected plaintiffs’ argument that the defendant-insurer was collaterally estopped on the “trigger” issue by a California appellate court’s decision in Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co., 52 Cal. Rptr. 2d 690 (Cal. Ct. App. 1996). The Fourth Department reasoned that the issues litigated in the two cases were not identical because, among other things, California and New York “apply different substantive law in determining when asbestos-related injury occurs.” Carrier, Mem. & Order at 4.
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Paul A. Briganti, White and Williams LLPMr. Briganti may be contacted at
brigantip@whiteandwilliams.com
Litigation Privilege Saves the Day for Mechanic’s Liens
November 23, 2020 —
Stephen M. Tye & Lawrence S. Zucker II - Haight Brown & BonesteelIn RGC Gaslamp v. Ehmcke Sheet Metal Co., the Fourth Appellate District held that a trial court properly granted an anti-SLAPP motion because the recording of a mechanic’s lien is protected by the litigation privilege.
In RGC Gaslamp, subcontractor Ehmcke Sheet Metal Company (“Ehmcke”) recorded a mechanic’s lien to recoup payment due for sheet metal fabrication and installation done at a luxury hotel project in downtown San Diego. Project owner RGC Gaslamp, LLC (“RGC”) recorded a release bond for the lien. Thereafter, Ehmcke recorded three successive mechanic’s liens identical to the first, prompting RGC to sue it for quiet title, slander of title, and declaratory and injunctive relief. After retaining California counsel, Ehmcke then released its liens and advised it did not intend to record any more. Ehmcke then filed a special motion to strike under the anti-SLAPP statute (Code Civ. Proc. § 425.16.) which was granted.
Reprinted courtesy of
Stephen M. Tye, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Tye may be contacted at stye@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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The Show Must Go On: Shuttered Venues Operators Grant Provides Lifeline for Live Music and Theater Venues
March 29, 2021 —
David Rao - Snell & Wilmer Real Estate Litigation BlogAlthough it’s been a tough twelve months for many live music venues, movie theaters, and performing arts organizations, help may finally be around the corner. On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act was signed into law, creating a $15 billion fund for grants to shuttered venues to be administered by the Small Business Administration’s (“SBA”) Office of Disaster Assistance. The law states that Shuttered Venues Operator Grants (“SVOGs”) will be made available to the following entities and individuals:
- Live venue operators or promoters;
- Theatrical producers;
- Live performing arts organization operators;
- Relevant museum operators, zoos, and aquariums which meet specific criteria;
- Movie theater operators;
- Talent representatives; and
- Each business entity owned by an eligible entity that also meets the eligibility requirements.
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David Rao, Snell & WilmerMr. Rao may be contacted at
drao@swlaw.com
California Contractor Tests the Bounds of Job Order Contracting
March 01, 2021 —
Garret Murai - California Construction Law BlogMost contractors have heard of design-bid-build, design-build, construction manager at risk, and even public private partnerships, various project delivery methods, which, at their heart, focus on balancing the interests of the various parties involved in a construction project, from owners, to design professionals, to contractors. There’s one project delivery method you may not be as familiar with though: Job Order Contracting, also known by its acronym JOC.
JOC contracting is a project delivery method used on public works projects and has been authorized to be used by California K-12 school districts, community colleges, CalState universities, and the Judicial Council of California, which, among other things, is responsible for the construction of California state courts. It is intended to be used on smaller, independent, long-horizon project typically involving maintenance, repair and refurbishment. Think periodic maintenance of facilities.
JOC contracts are administered by public entities issuing a request for proposals. The public entity then awards a JOC contract to the lowest responsible bidder. The lowest responsible bidder then enters into a JOC contract with the public entity. JOC contracts typically have a duration of one (1) year and are limited to a total construction value of $4.9 million increased annually based on the Consumer Price Index. When entering into a JOC contract, a JOC contractor agrees to perform work at prices set forth in a Construction Task Catalog also known as a unit price book which includes current local labor, material and equipment costs. Unit prices are then adjusted by a “bid adjustment factor” based on the JOC contractor’s bid. When work is needed, the public entity will then issue a job order to the JOC contractor.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Oklahoma Finds Policy Can Be Assigned Post-Loss
April 26, 2021 —
Tred R. Eyerly - Insurance Law HawaiiOklahoma joined the majority of court in finding that after a loss occurs, the insured can assign the policy to another. Johnson v. CSAA Gen. Ins. Co., 2020 Okla LEXIS 118 (Okla. Dec. 15, 2020).
Johnson's property was damaged in a storm. She filed a claim with her insurer. She also executed an assignment of her claim in order to repair the property with the execution of assignment to Triple Diamond Construction LLC. An appraiser retained by Triple Diamond determined the storm damage was $36,346.06. The insurer paid only $21,725.36 for the loss.
Johnson and Triple Diamond sued the insurer for breach of contract, seeking $14,620.70, not inclusive of interest, attorneys' fees and costs. The insurer filed a motion to dismiss, or an alternative motion for summary judgment to dismiss Triple Diamond as a party. The insurer argued that both the policy and an Oklahoma statute barred the assignment. The district court granted the insurer's motion.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
