New York High Court Declines to Extend Coverage to Additional Insured who was the Sole Cause of the Accident Giving Rise to the Claim

Author: James E. Sell

Requiring a subcontractor to name an owner and prime contractor as “additional insureds” under the subcontractor’s liability policy is a common method to transfer risk on a construction project. When a subcontractor comes onto a project, an owner and prime contractor are potentially exposed to liability risks for that subcontractor’s negligence and additional insured endorsements represent a way to apportion these risks. The rationale is to make the party with the most control over the risk responsible for suffering the financial loss should it fail to prevent the loss.

Appellate Court Rules Again that the Right to Repair Act is the Exclusive Remedy for Construction Defect Claims

Author: Elizabeth Terrill

Gillotti v. Stewart (2017) 11 Cal.App.5th 875: 

We have recently seen multiple appellate cases addressing whether the Right to Repair Act, as set forth in Civil Code Section 895, et seq. (“SB 800”), preempts common law claims for damages, which run contrary to Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 (“Liberty Mutual”) (held SB 800 does not eliminate common law claims where construction defects caused actual damage).

Builder Must Respond To Notice Of Claim Within Statutory Time Frame As Required In California’s Civil Code

Author: David Ramirez

Recently, in Blanchette v. Superior Court, (2017) 8 Cal.App.5th 521, California’s Fourth District Court of Appeal held that if a builder fails to acknowledge receipt of a homeowner’s Notice of Claim within 14 days, as required by the Right to Repair Act (“SB800”), specifically California Civil Code §913, the homeowner is released from the requirements of SB800 and may proceed with the filing of a lawsuit.

Damage to an Underground Storage Tank is Not a Covered Risk

Author: David Ramirez

In the recent decision entitled Tustin Field Gas & Food v. Mid-Century Ins. Co. (2017 WL 2839139) the Second District Court of Appeals ruled a split in an underground storage tank, caused by the tank sitting on a rock for years, was not a covered “collapse” as a matter of law.

SB496 – Will This Increase the Exposure of Subcontractors?

Author: Paloma Ramirez

Governor Jerry Brown recently signed Senate Bill 496 (“SB 496”) into law.  SB 496 amends Civil Code, section 2782.8, to limit indemnification obligations of design professionals, including the duty and cost to defend.  This amendment will apply to all design service contracts, and amendments thereto, entered into by design professionals on or before January 1, 2018.

Overcoming Implicit Bias in the Workplace

Author: Kathryn Besch

Have you ever wondered why the demographics of CEOs and those in leadership positions remain largely homogenous regardless of a diverse workforce?  Or why certain physical attributes, such as being tall, are associated with leaders?  Unconscious associations, or implicit bias, may be part of the reason.

Bad Faith Claimant Entitled To Insurer’s Claim File

Author: Colin Hutchinson-Flaming

Division II of the Washington Court of Appeals recently issued an opinion that (1) upheld the trial court’s dismissal of Justus’s claim of negligent detention due to the tortfeasor’s actions being intentional rather than negligent; (2) reversed the trial court’s denial of Justus’ motion to compel the claim file; and (3) reversed the trial court’s dismissal of Justus’ extra contractual claims against State Farm. In so holding, the Court of Appeals extended the right of a claimant who received an assignment of rights as part of a stipulated judgment and covenant not to execute judgment to automatically obtain access to the insurer’s claim file in bad faith litigation.

Judges vs. Commissioners

Author: Angelina Petrosyan

In re Marriage of Lyle No. 33971-8-III, Washington State Court of Appeals Division Three held that the judge, on finding that dismissal was not warranted, was not restricted to either affirming or reversing the commissioner’s order.  The judge was empowered to enter a child support award that was requested by the respondent in her petition.

In Decision Applying Parental Immunity Doctrine, Narrow Supreme Court Majority Favors Injured Child

Author: Kyle Jones

On July 6, 2017, the Supreme Court overturned a trial court and the Division 1 Court of Appeals in a case involving the application of the parental immunity to contributory negligence.  Washington courts have carved-out three exceptions to the parental immunity doctrine.  The first is where a parent negligently operates an automobile.  The second is where a parent injures his or her child while engaging in a business activity.  The third is where a parent engages in willful or wanton misconduct or intentionally wrongful conduct.  However, the courts have consistently held a parent’s negligent supervision of their child does not give rise to a cause of action by the child against the parent.

Semantic Changes Do Not Allow Class Action Claims To Circumvent Need Jurisdiction

Author: Christopher Lund

In a recent unpublished opinion, the Nevada Court of Appeals reversed a district court’s denial of a homeowner association’s motion to dismiss a class action complaint. The court of appeals affirmed that claims involving the interpretation of an HOA’s covenants, conditions, and restrictions (CC&Rs) must be submitted to the Nevada Real Estate Division’s (NRED) alternative dispute resolution program before a district court has jurisdiction.  In addition, a court should look to the substance of a complaint to determine whether it involves interpreting CC&Rs and not blindly accept a plaintiff’s assertion in its complaint that its claims do not involve interpreting CC&Rs.

Exclusion for All?

Author: Betsy Jefferis

A Motion to Exclude can often be filed to limit prejudicial evidence and encourage rational and efficient jury trials. This tool can be especially useful when attempting to limit untimely disclosed evidence including computation of Plaintiff’s damages and untimely disclosed damages information.  The disclosures must include a computation of each category of damages claimed by the disclosing party. Fed. R. Civ. P. 26(a)(1)(A)(iii). Initial disclosures including a damages computation play a significant role in further enabling the defendant to understand the contours of its liability exposure and, by extension, to make informed decisions regarding settlement. Frontline Med. Assocs., Inc. v. Coventry Health Care, 263 F.R.D. 567, 569 (C.D. Cal. 2009).  Accordingly, the court has a duty to enforce those deadlines and requirements of the parties. The case discussed below illustrates the specific protocol for a Motion to Exclude as outlined by the Court.

U.S. Supreme Court Denies Write Re: Bourne Valley; What Now?

Author: Tom McGrath

On June 26, the U.S. Supreme Court denied Bourne Valley Trust’s Writ of Certiorari, challenging the Ninth Circuit Court of Appeal’s decision in Bourne Valley Trust v. Wells Fargo.  In Bourne Valley, the Ninth Circuit held the “opt-in notice” language in Nevada’s previous version of its HOA foreclosure statute (NRS 116.3116), did not provide lenders with adequate notice and therefore, deprived them of their substantive Due Process rights under the Constitution.  Therefore, it overturned a Nevada Federal District Court Judge’s Order granting summary judgment in favor of Bourne Valley Trust, an investment company who acquired a property at an HOA foreclosure sale.  Bourne Valley Trust’s Writ was based on the fact that Wells Fargo admitted receiving actual notice of the foreclosure sale.

Who Are You?: U.S. v. Salish Kootenai College, Inc., The False Claims Act And Sovereign Immunity

Author: Jenny Silverstein

It is no secret there are too many lawyers in California and not enough jobs. When I graduated law school in 2008, the Great Recession was at its height. After obtaining my law license in 2009, I found myself facing a pile of student loan debt and no job prospects. It took me almost two years of hustling for contract attorney work before I found full time, permanent employment as an associate attorney at a private firm. During those years I was “hustling.” I remember hearing more and more complaints from graduates of my alma mater about how employment data was fabricated and the true number of graduates who were actually employed v. the number of graduates who were not employed was misrepresented in marketing materials.

The Specter Of Sliding Scale Settlements In Multi-Party Litigation: Strategies For Protecting The Non-Settling Defendant

Author: David Kahn

In formulating California’s approach to evaluating the good faith of piece-meal settlements, the California Supreme Court famously stated:  “When profit is involved, the ingenuity of man spawns limitless varieties of unfairness.”  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 494-495 quoting River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 993).  As set forth below, a  sliding scale settlement certainly falls within this paradigm.  Although California allows such settlements, there are statutory protections and defense strategies which should be implemented to mitigate the prejudice inherent in such settlements.

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