National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
Fisker's lawsuit against insurance companykatiefehren
A lawsuit filed by Fisker against insurance company XL for denying its claim when 338 Karmas were lost in Sandy flooding, which had a value of $33 million.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
Fisker's lawsuit against insurance companykatiefehren
A lawsuit filed by Fisker against insurance company XL for denying its claim when 338 Karmas were lost in Sandy flooding, which had a value of $33 million.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
This document is a status report from the Claims Administrator of the Deepwater Horizon Economic and Property Damages Settlement Agreement to the United States District Court for the Eastern District of Louisiana. It provides updates on the number of claims submitted and reviewed, the identity verification and review processes, exclusions reviews, accounting support reviews, and quality assurance reviews being conducted. The report aims to inform the Court on the current status of implementing the Settlement Agreement.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
2009.08.07 nance sued by Introgen debtors for excessive expendituresHindenburg Research
The Debtors are seeking to recover payments made to David G. Nance, the former CEO and President of the Debtors, totaling over $669,000. The Debtors allege the payments made within two years prior to filing for bankruptcy (totaling over $427,000) and between 2004-2008 (totaling over $669,000) were fraudulent transfers under bankruptcy law and state law. Additionally, the Debtors allege Nance wasted corporate assets and engaged in self-dealing through his unnecessary and extravagant expenditures. The Debtors are seeking repayment of the fraudulent transfers, damages, attorney's fees, and interest.
091007 Complaint D E 2 10 07 09 Draft Finaljsanchelima
This document is an amended complaint filed in bankruptcy court by Maison Grande Condominium Association against Dorten Inc. and Robert L. Siegel as trustee. The complaint seeks to avoid any security interests or liens claimed by the defendants in the association's assets. It also seeks a determination that a purported 99-year lease and any security interests or liens granted under the lease are invalid. The association states that the lease and any security interests were not properly perfected and seeks to reject the lease in bankruptcy.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
Supreme Court of Texas Marries Contractual Limitations to Insurance PoliciesNationalUnderwriter
Supreme Court of Texas Marries Contractual Limitations to Insurance Policies by Tom Stilwell, John English, Justin T. Scott, and J. Sean Jain
In a case that has been closely watched by the oil and gas industry and its insurers, the Supreme Court of Texas recently issued its opinion in In re Deepwater Horizon, and settled the debate concerning whether a company’s insurance policies stood alone or were married to and dependent upon an insured’s limited obligation in a separate contract to insure and indemnify a third party. Specifically, the court found that Transocean’s $750 million primary and excess insurance policies did not offer unrestricted coverage to BP as an additional insured, but instead incorporated and were bound by the
limitations placed on Transocean’s liability under the parties’ drilling contract (the “Drilling Contract”).
The debtor, Cordillera Golf Club, LLC, filed a motion seeking authorization to retain and pay certain professionals utilized in the ordinary course of business without requiring each professional to file a formal application for employment. The motion proposed procedures for retaining ordinary course professionals, including requiring the professionals to file declarations of disinterestedness, limiting monthly payments to $25,000 per professional absent a fee application, and requiring the debtor to file quarterly reports on payments to the professionals. The debtor argued this relief was necessary to avoid disruption to its business operations and pending litigation matters.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking authorization to retain and pay certain professionals utilized in the ordinary course of business without requiring each professional to file a formal application for employment. The motion proposed procedures for retaining ordinary course professionals, including requiring the professionals to file declarations of disinterestedness, limiting monthly payments to $25,000 per professional absent a fee application, and requiring the debtor to file quarterly reports on payments to the professionals. The debtor argued this relief was necessary to avoid disruption to its business operations and pending litigation matters.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
This order denies the plaintiffs' motion for a preliminary injunction on their facial constitutional challenges to Article 19 of the Revised Ordinances of Honolulu. The order finds that: (1) Article 19 is a reasonable time, place, and manner restriction that is content-neutral and narrowly tailored to serve the significant government interest of maintaining public areas; (2) Plaintiffs are not likely to succeed on their claim that Article 19 is overly broad in violation of the First Amendment; and (3) Plaintiffs have failed to establish all the required elements for a preliminary injunction, including likelihood of success on the merits of their claims. Therefore, the court denies the plaintiffs' motion for a preliminary injunction based on their facial challenges to Article 19.
This document is a notice of motion filed in the United States Bankruptcy Court for the Northern District of Illinois regarding Debtors' motion to approve entry into a plan sponsor agreement with NRG Energy, Inc. and related relief. Key details include:
- Debtors have entered into an agreement with NRG Energy, Inc. to acquire substantially all of Debtors' assets and equity interests, to be effectuated through a chapter 11 plan.
- The agreement is supported by Debtors' major creditor groups, including an official unsecured creditors committee, a group of senior unsecured noteholders, and parties related to certain of Debtors' power plants.
- The notice sets an objection deadline of October 22, 2013
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Inju...NationalUnderwriter
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Injury and Property Damage Coverages by Michael S. Levine and Matthew T. McLellan
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
This document is a status report from the Claims Administrator of the Deepwater Horizon Economic and Property Damages Settlement Agreement to the United States District Court for the Eastern District of Louisiana. It provides updates on the number of claims submitted and reviewed, the identity verification and review processes, exclusions reviews, accounting support reviews, and quality assurance reviews being conducted. The report aims to inform the Court on the current status of implementing the Settlement Agreement.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
2009.08.07 nance sued by Introgen debtors for excessive expendituresHindenburg Research
The Debtors are seeking to recover payments made to David G. Nance, the former CEO and President of the Debtors, totaling over $669,000. The Debtors allege the payments made within two years prior to filing for bankruptcy (totaling over $427,000) and between 2004-2008 (totaling over $669,000) were fraudulent transfers under bankruptcy law and state law. Additionally, the Debtors allege Nance wasted corporate assets and engaged in self-dealing through his unnecessary and extravagant expenditures. The Debtors are seeking repayment of the fraudulent transfers, damages, attorney's fees, and interest.
091007 Complaint D E 2 10 07 09 Draft Finaljsanchelima
This document is an amended complaint filed in bankruptcy court by Maison Grande Condominium Association against Dorten Inc. and Robert L. Siegel as trustee. The complaint seeks to avoid any security interests or liens claimed by the defendants in the association's assets. It also seeks a determination that a purported 99-year lease and any security interests or liens granted under the lease are invalid. The association states that the lease and any security interests were not properly perfected and seeks to reject the lease in bankruptcy.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
Supreme Court of Texas Marries Contractual Limitations to Insurance PoliciesNationalUnderwriter
Supreme Court of Texas Marries Contractual Limitations to Insurance Policies by Tom Stilwell, John English, Justin T. Scott, and J. Sean Jain
In a case that has been closely watched by the oil and gas industry and its insurers, the Supreme Court of Texas recently issued its opinion in In re Deepwater Horizon, and settled the debate concerning whether a company’s insurance policies stood alone or were married to and dependent upon an insured’s limited obligation in a separate contract to insure and indemnify a third party. Specifically, the court found that Transocean’s $750 million primary and excess insurance policies did not offer unrestricted coverage to BP as an additional insured, but instead incorporated and were bound by the
limitations placed on Transocean’s liability under the parties’ drilling contract (the “Drilling Contract”).
The debtor, Cordillera Golf Club, LLC, filed a motion seeking authorization to retain and pay certain professionals utilized in the ordinary course of business without requiring each professional to file a formal application for employment. The motion proposed procedures for retaining ordinary course professionals, including requiring the professionals to file declarations of disinterestedness, limiting monthly payments to $25,000 per professional absent a fee application, and requiring the debtor to file quarterly reports on payments to the professionals. The debtor argued this relief was necessary to avoid disruption to its business operations and pending litigation matters.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking authorization to retain and pay certain professionals utilized in the ordinary course of business without requiring each professional to file a formal application for employment. The motion proposed procedures for retaining ordinary course professionals, including requiring the professionals to file declarations of disinterestedness, limiting monthly payments to $25,000 per professional absent a fee application, and requiring the debtor to file quarterly reports on payments to the professionals. The debtor argued this relief was necessary to avoid disruption to its business operations and pending litigation matters.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
This order denies the plaintiffs' motion for a preliminary injunction on their facial constitutional challenges to Article 19 of the Revised Ordinances of Honolulu. The order finds that: (1) Article 19 is a reasonable time, place, and manner restriction that is content-neutral and narrowly tailored to serve the significant government interest of maintaining public areas; (2) Plaintiffs are not likely to succeed on their claim that Article 19 is overly broad in violation of the First Amendment; and (3) Plaintiffs have failed to establish all the required elements for a preliminary injunction, including likelihood of success on the merits of their claims. Therefore, the court denies the plaintiffs' motion for a preliminary injunction based on their facial challenges to Article 19.
This document is a notice of motion filed in the United States Bankruptcy Court for the Northern District of Illinois regarding Debtors' motion to approve entry into a plan sponsor agreement with NRG Energy, Inc. and related relief. Key details include:
- Debtors have entered into an agreement with NRG Energy, Inc. to acquire substantially all of Debtors' assets and equity interests, to be effectuated through a chapter 11 plan.
- The agreement is supported by Debtors' major creditor groups, including an official unsecured creditors committee, a group of senior unsecured noteholders, and parties related to certain of Debtors' power plants.
- The notice sets an objection deadline of October 22, 2013
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Inju...NationalUnderwriter
Migrating Sand Triggers Separate Policy Limits for CGL Policy¹s Personal Injury and Property Damage Coverages by Michael S. Levine and Matthew T. McLellan
This document is a court opinion and order in a lawsuit between Century Indemnity Company and various defendants regarding insurance coverage for environmental contamination at a Superfund site. The court is considering a motion for summary judgment filed by third-party plaintiffs (various companies affiliated with Northwest Marine Inc.) against four insurance company defendants regarding those insurers' duties to defend the third-party plaintiffs in a CERCLA action related to the Superfund site. The court discusses the insurance policies at issue, the corporate history and succession of entities, and analyzes whether the policies trigger a duty to defend and if any policy exclusions apply.
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Da...NationalUnderwriter
Washington Court Holds Stipulated Covenant Judgment Sets Minimum Amount of Damages in Bad Faith Case. (from FC&S Legal: The Insurance Coverage Law Information Center)
Recently, Division One of the Court of Appeals of Washington State affirmed a jury verdict awarding $13 million in damages to a passenger injured in a car accident, finding that the $4.15 million agreed amount of the covenant
judgment in the insurance bad faith case sets a floor, not a ceiling, on the damages a jury can award.
In Miller v. Kenny and Safeco Ins. Co.,[1] the Court of Appeals ruled on several additional issues on appeal including whether evidence of an insurance company’s loss reserves is properly admissible at trial.
Studio 417 inc. v. the cincinnati insuranceBolinLawGroup
This order denies the defendant insurance company's motion to dismiss. The plaintiffs, who are businesses that own restaurants and hair salons, filed a lawsuit against their insurance provider seeking coverage for losses they incurred when the businesses were forced to close due to the COVID-19 pandemic. The defendant argued that the insurance policies required "physical loss or damage" and that COVID-19 does not cause such physical alterations. However, the court found that the policies do not define "physical loss" and its plain meaning could include loss of use, which the plaintiffs allegedly experienced when they were prohibited from operating their businesses. Therefore, the plaintiffs adequately stated claims under the various coverage provisions of the policies, and the defendant's motion to dismiss was denied.
This document summarizes a court ruling on a motion to dismiss claims against three investors in Veoh Networks Inc. for secondary copyright infringement. The court held that while the complaint alleged the investors obtained control of Veoh through board seats and financing, it did not sufficiently plead that the investors were significantly involved in Veoh's alleged infringing activities to state valid claims of contributory copyright infringement against the investors. As a result, the court granted the investors' motion to dismiss the secondary liability claims against them.
Bp settlement declaration_cameron_azari_bp_settlement_notice_administrator_4_...Michael J. Evans
This document is the declaration of Cameron Azari, who administered the class action notice plan for the BP Deepwater Horizon Oil Spill Settlement. It explains that Azari is an expert in legal notice and notice plan design. The declaration outlines how the target audience for the BP Settlement notice was intended to match the class definition in the Settlement Agreement. It also highlights Azari's plans to send individual notice by mail to settlement class members.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
1) Construction contracts often require subcontractors to provide insurance naming the general contractor as an additional insured. However, determining what qualifies the general contractor for coverage as an additional insured has been an ongoing legal battle. 2) In this case, the New York Court of Appeals ruled that for a general contractor to be covered as an additional insured, the accident or loss does not need to be due to the named subcontractor's negligence, but rather only needs to arise out of the subcontractor's operations. 3) However, in this specific case, the general contractor conceded the subcontractor was not negligent, removing the only possible link between the subcontractor's work and the accident,
Under the Right Circumstances, an Insured Entitled to "Independent Counsel" i...NationalUnderwriter
Under the Right Circumstances, an Insured Entitled to "Independent Counsel" in California Can Retain More Than One Firm
by Carey B. Moorehead
In a case of first impression, a California district court has ruled that California law does not preclude an insured from
retaining multiple law firms as independent or Cumis counsel where the insurer is defending under reservation of
rights. The court’s ruling came in the case of Signal Products v. American Zurich Insurance Company, et al.
The Signal Products court was called upon to interpret California Civil Code §2860 in the context of cross-motions for summary judgment between American Zurich Insurance Company and its insured Signal Products, Inc., the defendant in a trademark infringement action. Zurich had agreed to defend Signal under reservation of rights and consented to Signal’s retention of independent counsel.
This document discusses international investment law regarding expropriation provisions and sustainable development. It begins by defining direct, indirect, and "tantamount to" expropriation under bilateral and multilateral investment treaties. It then analyzes how recent cases have balanced investment protection and host state regulatory discretion. The document concludes that while expropriation standards were initially over-inclusive, restricting host state regulation, there is a trend of limiting investor protection to enable sustainable development goals through legislation.
The Fifth Circuit's recent ruling in In re Deepwater Horizon expanded additional insured coverage beyond what was agreed to in the business contract between BP and Transocean. Specifically:
1) Transocean's drilling contract required it to name BP as an additional insured only for liabilities Transocean assumed, which did not include subsurface pollution.
2) However, the Fifth Circuit ruled that the language in Transocean's insurance policies, not the business contract, determines additional insured coverage.
3) As a result, BP gained full access to Transocean's $750 million liability limits for subsurface pollution liabilities that Transocean never agreed to insure.
NY Appeals Court Finds Ambiguity as to Losses Resulting from Backup or Overfl...NationalUnderwriter
In an issue of apparent first impression in New York, an appellate court has found that an ambiguity existed in an
insurance policy as to losses resulting from a backup and/or overflow from sewers, drains, and/or plumbing systems.
Emergency Mitigation Measures and Repairs, Allegedly Faulty, Doom CoverageNationalUnderwriter
From FC&S Legal: Emergency Mitigation Measures and Repairs, Allegedly Faulty, Doom Coverage.
A federal district court has ruled that an insurer was not obligated to cover claims stemming from allegedly faulty
emergency mitigation measures and repairs made to a roof damaged by Hurricane Isaac.
The Case
Cedar Ridge, LLC, alleged that its Riverlands Shopping Center was damaged by Hurricane Isaac and that it contracted with Roof Technologies, Inc., to perform “emergency mitigation work,” which generally consisted of fastening tarps to Riverlands’ roof. Cedar Ridge then filed a claim with Landmark American Insurance Company and RSUI Indemnity Company (together, “Landmark”), which was denied on the ground that the emergency mitigation work had caused additional damage to Riverlands.
Cedar Ridge sued Landmark, which filed a complaint against Roof Tech, asserting that, “in the event [Landmark was] held liable to plaintiff for any of the claims asserted, third party defendant, Roof Technologies, Inc. [was] liable to [Landmark] for the damage it caused to the property at issue as a result of its defective workmanship and by the improper installation of tarps on the roof following Hurricane Isaac.”
Roof Tech moved for summary judgment.
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
This summarizes a document reviewing environmental law cases from 2009-2010. It discusses three cases:
1) Fresh Meadow Food Serv., LLC v. RB 175Corp. upheld a RICO claim against a defendant who concealed underground storage tanks and contaminated soil when selling a property.
2) Wickens v. Shell Oil Co. addressed recoverable attorney fees under Indiana's Underground Storage Tank Act.
3) Evansville Greenway & Remediation Trust v. S. Ind. Gas & Elec. Co. concerned the common interest privilege and apportionment of liability under CERCLA. The court applied the privilege to communications between parties working to remediate contaminated sites. It also found CERCLA
This document discusses the unintended consequences of absolute exclusions in executive and professional liability insurance policies. Such exclusions aim to clearly define what is not covered, but courts have interpreted them broadly, finding no coverage in some cases even when coverage was intended. This has financial implications for policyholders and liability implications for brokers. The document examines the historical development of absolute exclusions, provides examples of how they have impacted claims, and discusses solutions like adding endorsements to restore intended coverage. It warns that absolute exclusions could potentially exclude many types of underlying claims if interpreted broadly.
Judge Stewart - Siltronic Order on Allocation of Environmental Response Costs...Seth Row
Judge Stewart's order goes behind the labels applied to various environmental response costs, to the purpose for which the work was done, to determine for insurance purposes whether a cost was "defense" or "indemnity."
Similar to AIG v ACIG Merriwether Occurrence Order MSJ (20)
This document establishes rules for interpreting business property insurance policies in Oregon relating to business interruption claims from events like pandemics. It prohibits certain insurer conduct like failing to timely investigate or pay claims. Insureds can sue for actual damages if insurers violate these rules. The act takes effect immediately.
PPT for ABA SAC 2018 of ICLC Tucson Conference 2018Seth Row
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
Opinion granting plaintiffs' msj 17-02-10 reliance is required spending on ...Seth Row
US District Court, District of Oregon, order holding that insurer did not "rely" on insured's alleged misrepresentation by incurring expenses to investigate insured's loss
2014 09-12 plaintiff's reply brief re application of all-sums rule v. time-on...Seth Row
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
1) The attorney, Seth Row, wrote a letter to Senator Shields to express concerns about bill HB 4051, which would allow insurers to provide policy documents via website rather than paper copies. 2) Row believes the bill lacks important protections for policyholders by not ensuring they consent to electronic delivery or have a choice in delivery method. 3) The bill's 10-year retention period for policy documents is also insufficient, as insurance claims often arise decades after a policy is issued, placing policyholders at a disadvantage in "lost policy" disputes.
The Ninth Circuit Court of Appeals ruled that a letter from the EPA under section 104(e) of CERCLA, requesting information from a landowner at a Superfund site, constitutes a "suit" and therefore triggers an insurer's duty to defend. This decision, along with previous trial court rulings in Oregon, establishes that insurers must defend policyholders who receive such information request letters. The court's interpretation of Oregon's environmental insurance claims statute, the OECAA, broadened the definition of "suit" and rejected arguments that the statute impaired contracts. This ruling may impact many involved at the Portland Harbor Superfund Site and other contaminated sites in Oregon.
Multi care health system v. lexington ins. co.Seth Row
This document is a memorandum from a United States Court of Appeals summarizing a case between Multicare Health System and Lexington Insurance Company. The court dismissed Multicare's claims against Lexington with prejudice, finding that Lexington did not have a duty to disclose the self-insured retention amount on the certificate of insurance provided to Multicare. The certificate stated the insurance policy limits but not the retention amount. The court determined that Lexington and USI did not make any affirmative misrepresentations, and they did not have a fiduciary or other special relationship that would create a duty to disclose the retention amount to Multicare. Therefore, Multicare failed to state a claim for misrepresentation or other causes of action.
Anderson Bros v. Travelers 9th Cir Decision August 30 2013Seth Row
This document summarizes an appeals court case regarding whether an insurer had a duty to defend its insured. The insured received two letters from the EPA identifying it as potentially responsible for environmental contamination at a Superfund site. The insurer refused to defend, arguing the letters were not "suits." The court affirmed the lower court's ruling that the letters triggered the duty to defend under the policy. Both letters alleged facts that could establish the insured's liability under CERCLA and Oregon law considers such letters a "suit" in the context of comprehensive general liability policies.
This document is a memorandum in support of a motion in limine regarding the effect of Senate Bill 814 on the parties' agreement concerning defense counsel. It argues that SB 814's independent counsel provisions do not apply in this case for two reasons: 1) The insurance policies give Continental the right to control the defense, triggering the savings clause in SB 814, and 2) The parties previously agreed that Bingham would serve as defense counsel within the traditional tripartite relationship, not as independent counsel, so applying SB 814 would contradict this existing agreement. The memorandum also contends that even if SB 814 did apply, it does not allow Schnitzer to select counsel or pay out-of-forum rates that exceed what is
Findings and Conclusions awarding damages to Ash Grove against Travelers and Liberty Mutual for breach of duty to defend in connection with Portland Harbor Superfund Site.
Charter oak v. interstate mechanical usdc oregon july 2013 mosman papakSeth Row
This document is a court opinion and order regarding various motions for summary judgment in an insurance coverage dispute. The judge adopts the findings and recommendation of the magistrate judge, who recommended granting in part and denying in part several motions for summary judgment. Specifically, the judge agrees that Glacier failed to properly assert a claim for bad faith breach of contract. The judge also finds that Glacier breached its duty to cooperate under the insurance policies by confessing judgment in a related case without notice to the insurers.
Letter to Senator Johnson (Oregon) Supporting HB3160/SB414Seth Row
This letter summarizes a legal case involving an insurance company, St. Paul Fire & Marine, refusing to defend its policyholder Anderson Brothers in a Superfund cleanup case, in violation of Oregon law. It asks the senator to support a bill that would complement recent amendments to the Oregon Environmental Cleanup Assistance Act, as the current law does not apply to most coverage disputes small businesses face. The letter explains that without this legislation, insurance companies have little incentive to defend policyholders as required by their contracts.
This document proposes amendments to A-Engrossed Senate Bill 414. The amendments modify sections of ORS 731.256 and ORS 746.230 related to unfair claim settlement practices. Key changes include prohibiting insurers from committing unfair claim settlement practices, allowing private actions for violations, and setting standards for prompt claims investigation and settlement when liability is clear. The amendments would go into effect on January 1, 2014.
Difficult Coinsurance Problems In Builder's Risk InsuranceSeth Row
This document summarizes key issues regarding coinsurance clauses in builder's risk insurance policies. It discusses:
1) What coinsurance is and how it functions as a penalty for underinsuring property. If the insured does not maintain insurance of a certain percentage of the property's value, the coinsurance clause will reduce payments in the event of a claim.
2) Ways for insureds to reduce the risk of coinsurance penalties, such as regularly updating policy limits to reflect increasing property values during construction.
3) Optional policy additions like agreed value clauses that can waive coinsurance penalties for an additional cost. Maintaining accurate and up-to-date insurance limits is important to avoid coinsurance problems.
IHL provisions call for requisite study to assess their capacity to deal with emerging means and methods of warfare.
Member states of the UN should promote negotiations on a new international treaty to ban and regulate lethal automatic weapon systems together with use of artificial intelligence in armed conflicts.
Anti-Money Laundering (AML): What It Is, Its History, and How It Works
What Is Anti-Money Laundering (AML)?
Anti-money laundering is an international web of laws, regulations, and procedures aimed at uncovering money that has been disguised as legitimate income. For centuries, governments and law enforcement agencies have tried to fight crime by following the money. In modern times, that comes down to anti-money laundering (AML) laws and activities.
Money laundering is the concealment of the origins of money gained from crimes, including tax evasion, human trafficking, drug trafficking, and public corruption. It also includes money being illegally routed to terrorist organizations.1
Anti-money laundering regulations have had an impact on governments, financial institutions, and even individuals around the world.
REPUBLIC ACT No 11313 An Act Defining Gender-Based Sexual Harassment in Stree...elyshaiana2
An Act Defining Gender-Based Sexual Harassment in Streets, Public Spaces, Online, Workplaces, and Educational or Training Institutions, Providing Protective Measures and Prescribing Penalties Therefor
This Act shall be known as the "Safe Spaces Act".
Reviewing contracts swiftly and efficiently is crucial for any organization. It ensures compliance, reduces risks, and keeps business operations running smoothly.
1. UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CHARTIS SPECIALTY INSURANCE
COMPANY, f/k/a American International
Specialty Lines Insurance Company,
Plaintiff,
v.
AMERICAN CONTRACTORS
INSURANCE COMPANY RISK
RETENTION GROUP, HOFFMAN
CORPORATION, and HOFFMAN
CONSTRUCTION COMPANY OF
OREGON,
Defendants.
Case No. 3:13-CV-01669-KI
OPINION AND ORDER ON
CROSS-MOTIONS FOR PARTIAL
SUMMARY JUDGMENT
Matthew J. Fink
Charles A. Hafner
Nicolaides Fink Thorpe
Michaelides Sullivan LLP
71 South Wacker Drive, Suite 4400
Chicago, IL 60625
Page 1 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 1 of 11
2. Christopher J. Nye
Reed McClure
Two Union Square
601 Union Street, Suite 1500
Seattle, WA 98101-1363
Attorneys for Plaintiff
Michael E. Farnell
Ian Hale
Parsons Farnell & Grein, LLP
1030 SW Morrison Street
Portland, OR 97205
Patrick J. Wielinski
Cokinos, Bosien & Young
105 Decker Court, Suite 800
Irving, Texas 75062
Attorneys for Defendants
KING, Judge:
This is an insurance coverage dispute between Chartis Specialty Insurance Company
(“Chartis”) and American Contractors Insurance Company Risk Retention Group (“ACIG”), both
of which provided insurance policies covering the development of the Meriwether Condominium
Complex. Together, the two insurance companies settled an underlying lawsuit brought by the
Meriwether Condominium Owners Association against the Developers of the Meriwether.
Chartis seeks a declaratory judgment that the property damage alleged in the lawsuit was caused
by more than one “occurrence,” such that Chartis should be reimbursed the $1.6 million it paid to
help settle the lawsuit. Hoffman Corporation and Hoffman Construction Company of Oregon
(collectively, “Hoffman”) successfully intervened as defendants in this dispute and filed a
counterclaim against Chartis for breach of contract. Pending before me are the parties’
Page 2 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 2 of 11
3. cross-motions for partial summary judgment on the sole issue of whether “property damage” was
“caused” by more than one “occurrence.”
BACKGROUND
ACIG issued to the Developers a Commercial General Liability Policy, effective April 1,
2006 to November 1, 2006, with a completed operations term extending for 10 years after the
completion of the project. The ACIG Policy provides coverage for “‘property damage’ . . .
caused by an “occurrence’” in an amount of $2 million for each occurrence. ACIG Policy 29. Its
products-completed operations aggregate limit is $4 million. The policy defines an “occurrence”
as “a happening, event, or accident, including continuous or repeated exposure to substantially
the same general harmful conditions.” ACIG Policy 44.
Chartis issued to Hoffman a Commercial Umbrella Policy, in effect from April 1, 2004 to
November 1, 2006, with a completed operations term extending for ten years after the
completion of the project. The Chartis Policy lists the Developers as additional Named Insureds.
The Chartis Policy provides coverage for “those sums in excess of the Retained Limit that the
Insured becomes legally obligated to pay by reason of liability imposed by law . . . because of . . .
Property Damage . . . that takes place during the Policy Period and is caused by an Occurrence
happening anywhere in the world.” Chartis Policy 46. The “Retained Limit” is $2 million per
occurrence with a $4 million aggregate limit. The Policy defines “occurrence” to mean, in
relevant part, “an accident, including continuous or repeated exposure to conditions, which
results in . . . Property Damage neither expected nor intended from the standpoint of the Insured.
All such exposure to substantially the same general conditions shall be considered as arising out
of one Occurrence.” Chartis Policy 50.
Page 3 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 3 of 11
4. The Meriwether developed structural problems, triggering a lawsuit by the Owners
Association against the Developers in 2011. The lawsuit alleged the Developers (not any
contractors or subcontractors) failed in their duties as developers to build the Meriwether free
from defects.1
The Developers allegedly failed in “ensur[ing] that the Meriwether was built free
from defects and in a manner so as not to leak or cause property damage.” Chartis’ Ex. 3,
Compl. ¶¶ 7, 10. They also allegedly failed to “adequately investigate and ensure that the
defects, resultant leaks, and property damage were properly and sufficiently repaired.” Id.,
Compl. ¶¶ 9, 10.
Many of the defects involved problems with the garage and the roofs. The Owners
Association alleged the Developers failed to properly install and/or repair a concrete
waterproofing system in the parking garage built under the condominium structures.
Specifically, the Owners Association alleged the Developers failed to properly install crystalline
waterproofing, failed to properly construct the transition between the crystalline waterproofing
system and an EPDM waterproofing membrane, and failed to properly construct sufficient
control joints. As a result, the garage developed numerous leaks and cracking in its ceiling. The
Owners Association alleged the Developers also failed to properly install “eco” or “green” roofs.
The specific allegations with respect to the roofs included: excessive run-off to overflow drains;
restricted drainage at main drains; failure to install vegetative free zones around inspection
boxes; plant debris and soil medium flushed into storm drainage; placement of mechanical sheet
metal and flashing finishes in direct contact with eco roof soil; and plant growth problems. The
1
The Owners Association also filed with Arbitration Services an arbitration statement of
claim containing similar allegations.
Page 4 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 4 of 11
5. lawsuit identified multiple other miscellaneous defects, including defective fire sprinklers,
insulation, and windows and doors.
ACIG and Chartis together paid $3.6 million to settle the lawsuit in February 2013.
ACIG paid $2 million2
and Chartis paid $1.6 million with a reservation of rights.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to point out the absence of any genuine issue of material
fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate
through the production of probative evidence that there remains an issue of fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the
court “must view the evidence on summary judgment in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party.” Nicholson v.
Hyannis Air Service, Inc., 580 F.3d 1116, 1122 n.1 (9th
Cir. 2009) (citation omitted).
DISCUSSION
I. The Chartis Policy Language Controls
Chartis seeks a declaration that the underlying lawsuit involved more than one
occurrence. Thus, its argument goes, ACIG’s $4 million aggregate limit applies (as opposed to
its $2 million per occurrence limit) and should have been exhausted before Chartis had any
2
Chartis asserts ACIG contributed $1.8 million to the settlement, but concedes for
purposes of the briefing that ACIG’s contribution was equivalent to the $2 million per
occurrence limit of the ACIG Policy. Chartis’ Reply 4, n.1. ACIG explains that it and Hoffman
together paid $2 million, which included $200,000 that was earmarked for completed repairs.
Page 5 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 5 of 11
6. obligation to make a contribution toward the settlement of the underlying lawsuit. It claims it
“did not have any obligation to indemnify the Developers, or contribute to the settlement with the
association, unless and until ACIG paid its $4 million products-completed aggregate limit for
compensatory damages which were otherwise covered by the umbrella policy.” Chartis’ Mot. for
Partial Summ. J. 5.
As ACIG points out, however, Chartis’ argument incorrectly treats the Chartis Policy as
excess to ACIG’s policy. To the contrary, the Chartis Policy is triggered when the “Retained
Limit” has been met and imposes no requirement that other insurance policies be exhausted.
Chartis Policy 46. Indeed, in a Retained Limit Amendatory Endorsement, Section III.E of the
Policy was revised to read:
The Retained Limits listed in the Schedule of Retained Limits shall apply whether
or not the insured maintains applicable underlying insurance listed in the Schedule
of Underlying Insurance or other insurance providing coverage to the insured
applicable to a loss.
Chartis Policy 24.3
The Retained Limit in the Chartis Policy is $2 million per occurrence and $4
million in the aggregate. The two policies are not tied to each other.
The question, then, is whether the property damage at the Meriwether Condominium
Complex was “caused by an Occurrence” as that term is defined in the Chartis Policy or, rather,
whether the property damage was the result of more than one occurrence.4
Chartis Policy 46.
3
This language replaced in its entirety the Retained Limit language in Section III.E of the
Policy which previously read that Chartis would be liable for that portion of damages in excess of
either the total of the applicable limits of any underlying insurance providing coverage or the Self
Insured Retention, whichever was greater. Chartis Policy 48.
4
As a practical matter, it makes little difference which policy language controls as I would
come to the same conclusion were I to apply the language of the ACIG Policy.
Page 6 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 6 of 11
7. II. Legal Standards for Interpreting Insurance Policy Language in Oregon
Chartis initially directs me to what it characterizes as a persuasive case from the Oregon
Supreme Court, rather than interpreting its policy language. In Wright v. Turner, 354 Or. 815,
322 P.3d 476 (2014), an action brought by a claimant against her underinsured motorist coverage
insurer, the Oregon Supreme Court examined whether one “accident” or more than one
“accident” occurred when the claimant’s vehicle was hit by two different cars in rapid
succession. Resolution of the number of accidents depended on whether the claimant’s injuries
were incurred in one uninterrupted event, happening, or occurrence or whether an
initial event, happening, or occurrence was interrupted in some way–such as by
time or different causal act–permitting a factfinder to conclude that there was
more than one distinct event, happening or occurrence and therefore more than
one “accident.”
Wright, 354 Or. at 485.
However, in coming to this conclusion, the Oregon Supreme Court approached the
question by construing the uninsured and underinsured motorist statute, which had been
incorporated into the insurance policy at issue. Consequently, the Court determined the Oregon
legislature’s intent in enacting the statute by examining the law in effect at the time. The issue in
Wright was one of pure statutory interpretation. Here, the issue is one of pure policy
interpretation and, as a result, I do not find Wright’s examination of the term “accident” to be
helpful.
Indeed, more than twenty years ago, a similar issue involving the number of covered
occurrences initially arose in this court and was certified to the Oregon Supreme Court by the
Ninth Circuit. At that time, the Oregon Supreme Court directed that:
Page 7 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 7 of 11
8. the number of covered “occurrences” in this case does not begin where the district
court appears to have begun, i.e., with case law. Rather, it begins with an
examination of the words of the applicable provisions in the insurance policy,
because the court’s task in interpreting an insurance policy is to determine the
intention of the parties. The intention of the parties is determined based on the
terms and conditions of the policy.
Interstate Fire & Cas. Co. v. Archdiocese of Portland in Or., 318 Or. 110, 864 P.2d 346 (1993)
(internal citations omitted). Wright makes no mention of Interstate Fire and, accordingly,
Interstate Fire remains controlling.
In short, I must interpret the Chartis Policy to resolve the question posed by the parties’
cross-motions. The primary rule in construing insurance contracts under Oregon law is to
determine the intent of the parties based on the terms and conditions of the policy. Hoffman
Const. Co. of Alaska v. Fred S. James & Co. of Oregon, 313 Or. 464, 469, 836 P.2d 703 (1992).
I must interpret the policy from “the perspective of the ordinary purchaser of insurance.” North
Pac. Ins. Co. v. Am. Mfrs. Mut. Ins. Co., 200 Or. App. 473, 478, 115 P.3d 970 (2005). If a term
is not defined in the policy, the first method of interpretation is the plain meaning of the term. If
there are two or more plausible interpretations of a term, the court should examine them in light
of the particular context in which the term is used in the policy and the broader context of the
policy as a whole. If the competing plausible interpretations are still reasonable, the term is
ambiguous and must be interpreted against the drafter of the language. Hoffman, 313 Or. at
470-75.
III. Interpretation of “Occurrence” in the Chartis Policy
“Occurrence” in the Chartis Policy is defined as follows:
As respects . . . Property Damage, an accident, including continuous or repeated
exposure to conditions, which results in . . . Property Damage neither expected
Page 8 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 8 of 11
9. nor intended from the standpoint of the Insured. All such exposure to
substantially the same general conditions shall be considered as arising out of one
Occurrence.
Chartis Policy 50. The definition directs that the cause of the property damage is to be viewed
“general[ly],” not separated into individual components, and “substantially” the same cause will
be viewed as one “occurrence.” Additionally, the property damage caused by an injurious
exposure to continuing conditions constitutes a single occurrence. Putting the definition in the
context of the underlying dispute then, an “occurrence” is the continuous or repeated exposure to
[the deficiently managed construction], which results in property damage neither expected nor
intended from the standpoint of the Developers. See Interstate Fire & Cas. Co. v. Archdiocese of
Portland in Or., 35 F.3d 1325, 1329 (9th
Cir. 1994) (under Oregon law, “repeated ‘exposure’ of
the boy to the negligently supervised priest, resulting in injury, . . . provides the basis for
indemnification”).
Chartis would have me interpret the policy in a vacuum, arguing the Owners
Associations’ allegations in the underlying lawsuit against the Developers are relevant only to the
duty to defend. However, while the specific legal theory alleged against the Developers may be
irrelevant to coverage, Farmers Ins. Group v. Nelson, 78 Or. App. 213, 715 P.2d 492, 494
(1986), coverage is dependent on the scope of the risk against which the insurer agrees to provide
indemnity. Whether Chartis has an obligation to indemnify at all must be “determined on the
basis of the ultimate facts . . . that formed the basis for the settlement.” Bresee Homes, Inc. v.
Farmers Ins. Exchange, 353 Or. 112, 293 P.3d 1036, 1044 (2012); see also Mutual of Enumclaw
Ins. Co. v. Gass, 100 Or. App. 424, 428, 786 P.2d 749 (1990) (“The duty to pay . . . depends on
whether the evidence at trial shows that the judgment was entered on a covered claim.”).
Page 9 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 9 of 11
10. In this case, to find the ultimate facts forming the basis for the settlement, we must look
to the allegations in the underlying lawsuit and any evidence developed in defending or
supporting those allegations. The allegations themselves assert the cause of the property damage
was the Developers’ failure to ensure the Meriwether was properlydeveloped, and not that the
Developers negligently performed any of the work themselves. The Owners’ Association sued
only the Developers, and only for their failure as developers and not as contractors or
subcontractors. The lawsuit did not include any allegations that the Developers were vicariously
liable for the actions of the contractors or subcontractors. “[I]n insurance coverage cases, it is the
insured’s actual conduct, not the imputed conduct of another, that determines coverage.”
McLeod v. Tecorp Int’l, Ltd., 117 Or. App. 499, 503, n.3, 844 P.2d 925 (1992), modified, 850
P.2d 1163, rev’d on other grounds, 318 Or. 208, 865 P.2d 1283 (1993).5
In sum, the only plausible interpretation of the language in the Chartis Policy is that the
property damage at the Meriwether Condominium Complex was caused by a single occurrence as
a matter of law.6
5
Chartis also argues that both the ACIG and Chartis Policies were issued to cover the
Developers’ work on the Meriwether. Thus, according to Chartis, my construction renders the
aggregate limits in the ACIG Policy meaningless. Although ACIG gives no specific example of
what other liability the Developers could have faced that would constitute a second “occurrence,”
I speculate that a prospective buyer’s “Bodily Injury” from the Developers’ operations at the
Meriwether (not caused by any construction defects) would constitute a separate occurrence.
6
Since I resolve the case on the unamended definition of occurrence, I need not reach
ACIG’s alternative argument that the Chartis Policy contained an amended definition extending
the meaning of “one Occurrence” to mean “Property Damage over any length of time[.]” Chartis
Policy 36.
Page 10 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 10 of 11
11. CONCLUSION
For the foregoing reasons, I grant ACIG and Hoffman’s Motion for Partial Summary
Judgment on Number of Occurrences [46] and deny Chartis’ Motion for Partial Summary
Judgment on Number of Occurrences [17]. The parties are directed to confer and file a joint
status report by August 29, 2014 with a proposal for resolving any remaining issues. If the
parties are unable to agree on a path forward, each party should file a status report.
IT IS SO ORDERED.
DATED this 12th
day of August, 2014.
/s/ Garr M. King
Garr M. King
United States District Judge
Page 11 - OPINION AND ORDER
Case 3:13-cv-01669-KI Document 60 Filed 08/12/14 Page 11 of 11