In an article I wrote for the North Bay Business Journal’s Vine Notes column, I review the issues around insurance coverage for smoke taint damage to grapes and wine. Insurers’ attempted clean lines of distinction can quickly become hazy when it comes to smoke taint. Now that we are just over two years past
A recent California appellate court decision found that a wage and hour exclusion in an Employment Practices Liability Insurance (“EPLI”) policy did not bar coverage for claims under California Labor Code sections 2800 and 2802 alleging failure to reimburse expenses. S. Cal. Pizza Co., LLC v. Certain Underwriters at Lloyd’s, London Subscribing to Policy No. 11EPL-20208, Case No. G056243, 2019 WL 4572859 (Cal. Ct. App. Aug. 27, 2019), as modified on denial of reh’g (Sept. 20, 2019). This is a significant decision. It gives policyholders an argument that insurers must defend wage and hour suits that include covered allegations of failure to reimburse expenses, as the court in Southern California Pizza found.
Continue Reading Reimbursement of Employment-Related Expenses Is Not a “Wage and Hour” Claim Within the Meaning of EPLI Exclusion
Insurers often claim “economic damages” are not covered under a standard commercial general liability (CGL) policy. The Fourth District Court of Appeal’s decision in Thee Sombrero, Inc. v. Scottsdale Ins. Co., 28 Cal. App. 5th 729, 736 (2018) review and request to depublish denied (Jan. 30, 2019), demonstrates that “loss of use” can be measured by “economic damages”—i.e., loss in profit or diminution in value—so long as they are tied to a property interest.
In Thee Sombrero, Inc., the insured’s negligent security services resulted in the revocation of Thee Sombrero’s permit to use its property as a night club after a patron was allowed to enter without passing through the metal detector, resulting in a fatal shooting. Thee Sombrero sued the security company, and obtained a default judgment. Thee Sombrero then pursued Scottsdale to satisfy the judgment. The trial court found in favor of Scottsdale, but the Court of Appeal reversed, finding that “the loss of the ability to use the property as a nightclub is, by definition, a ‘loss of use’ of ‘tangible property.’ It defies common sense to argue otherwise.” Id.
Continue Reading Damages for Permit Revocation Constitute Covered “Loss of Use”
On January 15, 2019, the Ninth Circuit certified the following question to the California Supreme Court:
Does a commercial liability policy that covers “personal injury,” defined as “injury… arising out of… [o]ral or written publication… of material that violates a person’s rights of privacy,” trigger the insurer’s duty to defend the insured against a claim that the insured violated the Telephone Consumer Protection Act by sending unsolicited text message advertisement that did not reveal any private information?
Yahoo! Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 17-16452, D.C. No. 5:17-cv-0447-NC.
Yahoo! sought coverage under its general liability policies issued by National Union for a number of putative class actions alleging that it violated the TCPA by transmitting unsolicited text message advertisements to putative class members. National Union denied coverage and Yahoo! sued for breach of contract. The Northern District granted National Union’s motion to dismiss and Yahoo! appealed that order to the Ninth Circuit.Continue Reading Ninth Circuit Asks the California Supreme Court to Interpret the Scope of Personal Injury Coverage
Before worrying about an insurance claim, first ensure that you and your family, including pets and extended family, have their immediate needs met, particularly medical needs. When you are ready to begin the recovery process, we have outlined a few steps for you to take in working with your insurers to ensure that you receive the maximum benefits under any applicable policies.
Continue Reading Steps and Resources to Recover Homeowner Insurance Benefits After a Fire: A Tip-Sheet for Homeowner / Small Business Insurance Claims
I wrote an article for Risk Management discussing the Federal Aviation Administration’s long-awaited regulations for commercial drones weighing 55 pounds or less and the insurance coverage available to address drone risks. Insurance is widely available, but careful attention should be paid to differences in policy language. Also, expect insurers to incorporate features of the…
In the age of email, text messaging, and Twitter, litigation focused on the sending of unwanted fax messages sounds old-fashioned. Indeed, it was nearly twenty years ago that Congress passed the Telephone Consumer Protection Act (47 U.S.C. § 227) (“TCPA”), which provides for damages of $500 per violation for sending fax spam to thousands of recipients at once. Citing freedom from nuisance, peace and quiet, and conservation of ink and paper, among other reasons, courts across the country have found liability for violations of the TCPA. Many courts, including the Supreme Courts of Florida, Illinois, and Massachusetts, and courts of appeal in Ohio and Texas, have also found that violations of the TCPA are covered by the “personal and advertising injury” coverage in the standard commercial general liability policy, which typically includes the “oral or written publication of material that violates a person’s right of privacy.”
Continue Reading California Court Of Appeal Decides That Blast Faxing Does Not Violate The Recipient’s Right Of Privacy For Purposes Of Insurance Coverage