CM Report of Recent Decisions – 2019 Volume 3

October 21, 2019 / CM Reports

Spotlight On Clausen Miller’s Diversity And Inclusion Initiatives

Clausen Miller’s Board of Directors is doubling down on its commitment to advance the diversity and inclusion values of the firm. The Board recently announced the goal that by 2021, CM will enjoy a deserved national reputation as a firm devoted to diversity and inclusion, earned by recognized improvements in every rank and category of the firm. While CM has long been committed, and significant progress has been made, CM is striving to move the needle more.

Property Policy Covers Replacing Undamaged Siding To Achieve Matching

In a recent case, Windridge of Naperville Condo Ass’n v. Phila. Indem. Ins. Co., 932 F.3d 1035 (7th Cir. 2019), the Seventh Circuit held that, under the facts presented, a property policy covered the cost to replace elevations of aluminum siding at a condominium complex, which were not damaged by hail or wind, to achieve aesthetic matching. Clausen Miller represented the insurer, Philadelphia Indemnity Insurance Company.

10th Circuit Affirms No Coverage For Fraudulent Wine Purchases Under “Private Collections” Policy

We previously reported on Hasan v. AIG Property Casualty Co., 1:16-cv-
02963-RM-MLC (D. Colo. Aug. 2, 2018) (see 2018 CM Report, Volume 3). Serving as coverage counsel, Clausen Miller partners Dennis Fitzpatrick and Erin Pellegrino correctly advised AIG that there was no coverage for the insureds’ claimed economic loss under these circumstances. The federal district court agreed, granting summary judgment to AIG on all claims and denying plaintiffs’ motion for leave to file an amended complaint. The Tenth Circuit recently affirmed.

California Supreme Court Holds That Notice-Prejudice Rule Applies To First-Party Coverage, But Not Third-Party Coverage

In Pitzer College v. Indian Harbor Ins. Co., S239510, 2019 Cal. LEXIS 6240, the Supreme Court of California held that (1) California’s notice prejudice rule is a fundamental public policy of California; and (2) the notice-prejudice rule generally applies to consent provisions in first party policies, but does not apply to consent provisions in third party liability policies.

Estoppel Doesn’t Apply Where Insurer Is Not Controlling Defense

In Illinois, as in most states, an insurer may be obligated to defend or participate in the defense of an insured even though the insurer believes that the policy does not cover the claim asserted against the insured. In such cases, the insurer may undertake its defense obligations accompanied by issuance of a reservation of rights. If the insurer defends without issuing a reservation, it stands the risk of being estopped from later denying coverage.

Insurance Coverage And The Cannabis Industry

The cannabis industry is expanding rapidly in the United States, even in the face of contradictory legal status on the federal level and among the fifty states. With limited exceptions, the cultivation, use, sale and possession of cannabis remains illegal under federal law, but more than two-thirds of states have legalized cannabis in some form. Legal sales of cannabis-related products are anticipated to exceed $20 billion nationwide by the early part of the next decade.

California Appellate Court Specifies Landowners’ Duty Of Care In Premises Liability Case

In Jones v. Awad, No. F077359, 2019 Cal. App. LEXIS 881 (Cal.App.5th), California’s Fifth Appellate District provided a nuanced analysis of issues related to premises liability actions. In affirming summary judgment in favor of the defendant landowners, the appellate court illustrated some of the subtleties of the “open and obvious” exception to a landowner’s duty of care

  • Chicago

    Illinois 60603

    10 South LaSalle Street

    Chicago, Illinois 60603

    T: 312.855.1010 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • New York

    New York 10005

    28 Liberty Street 39th Floor

    New York, New York 10005

    T: 212.805.3900 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Carl M. Perri

  • Mission Viejo

    California 92691

    27285 Las Ramblas

    Suite 200

    Mission Viejo, California 92691

    T: 949.260.3100 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Florham Park

    New Jersey 07932

    100 Campus Drive

    Florham Park, New Jersey 07932

    T: 973.410.4130 TF: 800.826.3505 F: 973.410.4169 Office Managing Partner: Carl M. Perri

  • Michigan City

    Indiana 46360

    200 Commerce Square

    Michigan City, Indiana 46360

    T: 219.262.6106 TF: 800.826.3505 F: 312.606.7777 Office Managing Partners: Paige M. Neel, Kimbley A. Kearney

  • Appleton

    Wisconsin 54914

    4650 W. Spencer Street

    Appleton, Wisconsin 54914

    T: 920.560.4658 TF: 800.826.3505 F: 920.968.4650 Office Managing Partner: Patrick L. Breen

  • Stamford

    Connecticut 06902

    68 Southfield Avenue

    2 Stamford Landing Suite 100

    Stamford, Connecticut 06902

    T: 203.921.0303 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Matthew J. Van Dusen

  • Tampa

    Florida 33609

    4830 West Kennedy Boulevard, One Urban Center

    Suite 600

    Tampa, Florida 33609

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • San Francisco

    California 94111

    100 Pine Street

    Suite 1250

    San Francisco, California 94111

    T: 415.745.3598 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Houston

    Texas 77019

    2929 Allen Parkway

    American General Center, Suite 200

    Houston, Texas 77019

    T: 346.229.4612 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Ramy P. Elmasri

  • Boca Raton

    Florida 33434

    7777 Glades Road

    Suite 405

    Boca Raton, Florida 33434

    T: 561.765.5305 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick