Tag Archives: Summary Judgment

No Coverage For Claims Made Outside Of Claims-Made Policy Period

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Thomas Benjamin Boley | Wiley Rein

The United States District Court for the Northern District of Illinois, applying Illinois law, has granted a legal professional liability insurer’s motion for summary judgment, holding that its claims-made policy did not apply to various claims that were first made either before or after the policy period. Twin City Fire Ins. Co. v. Law Office of John S. Xydakis, P.C., 2023 WL 2572468 (N.D. Ill. Mar. 20, 2023).

The insured attorney bought a claims-made legal malpractice insurance policy that had a policy period of January 26, 2017, to January 26, 2018, and a retroactive date of January 26, 2016. The policy, which the insured did not renew, had a 60-day automatic extended reporting period. The policy gave the insured the right to purchase a longer extended reporting period, but the insured did not exercise the option.

Three claims were made against the attorney: (1) a lawsuit alleging failure to pay expert witness fees in 2012, (2) judicial sanctions levied in 2019 against the attorney and his client, and (3) a 2019 lawsuit by one of the law firm’s former employees alleging legal malpractice, breach of contract, and breach of fiduciary duty. The attorney sought coverage for these claims. The insurer denied coverage because the suits were made outside the policy period and/or involved acts before the retroactive date.

The court granted the insurer’s motion for summary judgment. The court declared that the insurer owed no coverage because the first lawsuit involved acts occurring prior to the retroactive date, and because the 2019 sanctions and lawsuit occurred after the policy period and automatic extended reporting period expired.

The insured raised a peripheral issue, arguing that a genuine issue of material fact existed as to whether the insurer was estopped from denying coverage. The attorney argued that, by regulation, the insurer should have offered at least a 12-month extended reporting period and that the insurer failed to notify him that the policy would be non-renewed. The court rejected both arguments, noting that the policy offered the insured the right to purchase a longer extended reporting period and that the insurer provided a nonrenewal notice to the insured’s broker. The court also rejected the argument on a legal basis, observing that “estoppel may not be used to create or extend coverage where none exists.”

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Contrasting Expert Opinions Result in Denial of Cross Motions for Summary Judgment

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Tred R. Eyerly | Insurance Law Hawaii

    Given the opposing experts’ contradictory reports, the court denied both the insured and insurer’s motions for summary judgment regarding coverage for a pipe leak. Pronti v. Hanover Ins. Co., 2022 U.S. Dist. LEXIS 222306 (W.D. N. Y. Dec. 9, 2022).

    The insured had a swimming poll and spa, which functioned using a subsurface plumbing system, covered with concrete decking. A subsurface pipe began to leak, preventing the pool from properly functioning. The insureds gave notice under their homeowners’ policy and contended that significant portions of the pool, spa, concrete decking and other landscaping had to be torn out to do repairs. The insurer retained an expert, Sarah G. Byer, a structural engineer, to investigate. The parties agreed that the pipe had a leak, but disputed if the location of the leak was specifically identified.

    The parties also disputed the cause of the leak. Byer found that the most likely cause was deterioration incurred over the pipe’s lifetime based on the age of the plumbing system and Byer’s personal observation of the pipe. Byer further stated that the physical qualities of flexible PVC piping made it susceptible to damage from chlorine and water over time. 

    The insureds retained Patrick Williams as their expert. He concluded that wear and tear was not the cause of the pipe leak. Williams based his conclusion on the purported typical lifespan of flexible PVC piping, his observation of the lack of discolouration or brittleness typical of deteriorated piping, and the lack of leaking water from other sections of the pipe system. Williams did not ultimately identify a specific cause of the pipe leak. 

    The insurer denied coverage based upon exclusions for wear and tear and water damage. Suit was filed and cross motions for summary judgment were presented. 

    The court found that both expert reports were admissible. Considering both expert reports in the light most favorable to the respective nonmoving parties, the court found that there was a genius dispute of material fact regarding the cause of the alleged damage. The expert reports came to opposing conclusions on what caused the pipe to leak. Therefore, the reports created a genuine dispute of fact precluding summary judgment. 

    There was also a genie dispute as to whether the policy covered the tear-out costs the insureds incurred when preparing their plumbing system. The policy stated that all “ensuing loss to property . . . not excluded or excepted in this policy is covered.” The insures agreed that the resulting tear-out costs directly resulted from non-excluded losses, and therefore constituted an ensuing loss to “other structures” under the policy. The insurer argued that these damages were merely indirectly caused by the pipe leak, and all related to excluded loss under the policy. 

    There was a genuine dispute of material fact as to whether any exclusion applied, since there was conflicting evidence on what caused the pipe lea. Therefore, because the court could not determine whether any exclusions applied on summary judgment motions it could not determine whether the tear-out costs were covered under the ensuing loss provision.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Court Grants Partial Summary Judgment on Conversion Claim Against Insurer

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Tred R. Eyerly | Insurance Law Hawaii

    Although the court was incredulous that the parties were disputing the possession of a gate opener allegedly damaged in a lightning strike, it granted the insured’s motion for partial summary judgment finding the insurer had converted the gate opener. Privratsky v. Liberty Mut. Fire Ins Co., 2022 U.S. Dist. LEXIS 196002 (D. Haw. Oct. 27, 2022). (Full disclosure, our office is co-counsel for the insured).

    Mr. Privratsky alleged his home on Maui was struck by lightning which caused an electrical surge. The home and personal property were damaged. The alleged cost of repair work at one point was as much as $325,000. A claim was submitted under a homeowner’s policy issued by Liberty Mutual. Liberty paid for only some of the damage. Privratsky filed suit alleging three causes of action for: (1) declaratory judgment that the losses were covered by the policy issued by Liberty; (2) bad faith; and (3) conversion of personal property, namely, the damaged gate operator.

    Privratsky filed a motion for partial summary judgment on the conversion claim, arguing that after taking the gate operator during an inspection, Liberty refused to return it despite multiple demands to do so. 

    Hawaii courts required the following with respect to conversion: (1) a taking form the owner without his consent; (2) an unwarranted assumption of ownership; (3) an illegal use or abuse of the chattel; and (4) a wrongful detention after demand. Freddy Nobriga Enters., Inc. v. Dept of Haw. Home Lands, 295 P. 3d 993, 999 (Haw. Ct. App. 2013). The parties disagreed over whether each of these acts had to be proven to establish Liberty’s conversion or whether any one, if proven, would suffice. The court agreed with Privratsky that, in Hawaii, any one of the four acts, if proven would establish a claim for conversion. 

    Here, Privratsky owned the gate operator. After the lightning strike, Liberty sent an inspector to the home who removed the gate operator and took it with him. On numerous occasions, Privratsky requested the return of the gate operator, but Liberty refused to do so. Instead, Liberty remained in possession of the gate operator.

    The court found these facts were sufficient to prove liability on the conversion claim because Privratsky had demanded the return of his property and it had been refused. Therefore, Privratsky’s motion was granted and Liberty’s counter-motion for partial summary judgment was denied. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

“Genuine” Issue of “Material” Fact and Summary Judgments

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David Adelstein | Florida Construction Legal Updates

This is short article on summary judgments.  A motion for summary judgment, as you may already know, is a procedural vehicle to try to dispose of issues or claims in a lawsuit, either partially or fully.  The objective is that the moving party claims that there is no genuine issue of material fact and that they are entitled to a judgment (partially or finally) as a matter of law.  See Florida Rule of Civil Procedure 1.510.  In May of 2021, Florida adopted the federal summary judgment standard which theoretically means trial courts should grant more summary judgments, not less, based on the more rigorous standard.

There have been many articles that discuss Florida’s new summary judgment standard including how the standard used to be versus how it is supposed to be now that it is modeled after the federal standard.  That isn’t the point of this posting. (Here is an article published in the Florida Bar Journal that provides a primer on summary judgments in case you are interested.)

The point of this posting is to understand the words “genuine” and “material” as underlined above when moving for or defending against a summary judgment.  These words have important meaning in the context of motions for summary judgment. In other words, what is a genuine issue of material fact?  This is a question that should not be overlooked because these are the facts you want to focus on and frame your arguments on when moving for or defending against a summary judgment. Notably, these are also the facts you want to introduce and emphasize at trial.

An issue of fact is “genuine” for summary judgment purposes if it could allow a jury to return a verdict in favor of the non-moving party, and an issue of fact is “material” if it could have any bearing on the outcome of the case under the applicable law.  “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” 

Del Rio v. Russell Engineering, Inc., 47 Fla.L.Weekly D2411a (Fla. 3d DCA 2022) (internal citations omitted).

For example, Del Rio involved a negligence action dealing with a road construction project. The genuine issue of material fact involved the location of a manhole cover.  The plaintiff struck a manhole cover and, on the date the accident occurred, the defendant was performing roadwork in that area.  The plaintiff testified in a deposition that the manhole cover he struck was on West Flagler Street in Miami while he was traveling westbound between 16th and 17th avenue.  He produced photographs of a manhole cover he believed he struck but the photographs were taken on a later date after the accident occurred. During a deposition, the defendant introduced a google earth photo of where the accident occurred that included a different manhole cover. The plaintiff testified he believed this was the manhole cover he struck (which was not in a westbound lane).  The defendant then moved for summary judgment arguing the manhole cover plaintiff struck was not located in a westbound lane based on his testimony regarding the google earth photograph.  The trial court granted summary judgment for the defendant finding that the plaintiff “failed to put forth sufficient evidence that the manhole cover he struck was located on West Flagler Street between 16th and 17th avenue.” Del Rio, supra. The appellate court reversed because although the plaintiff may have been confused (or fooled) or identified an incorrect manhole cover in an after-the-fact google earth photograph, he testified unequivocally as to the location of the manhole cover he struck during his deposition.  The appellate court noted, particularly as it pertained to after-the-fact photographs that were not of the manhole cover on the date of the accident:

“[A] reasonable jury could conclude that [plaintiff’s] subsequent identification of the sewer manhole cover in the right lane as opposed to the water main manhole cover in the left lane during his second deposition was a mistake…given that [plaintiff] testified during his first deposition that he could not recall which of the two westbound lanes he was traveling in when he struck the manhole cover. Finally, [plaintiff] testified that he took the close-up photographs he produced sometime after the accident, but he could not recall exactly when, and the Google Earth photographs produced by the defense are dated one month after the accident. Therefore, neither party’s photograph conclusively establishes how (or where for that matter) the manhole appeared on the date of the accident. Accordingly, the photographic evidence does not “blatantly contradict[ ]” [plaintiff’s] testimony that the manhole was located on West Flagler Street between 16th and 17th Avenue. 

Del Rio, supra, (internal citations omitted).

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Insured’s Failure to Challenge Trial Court’s Application of Exclusion Makes Appeal Futile

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Tred R. Eyerly | Insurance Law Hawaii

    The Texas Court of Appeals affirmed the trial court’s granting of summary judgment to the insurer because the appeal failed to challenge the exclusion under which the insurer found no coverage. Sosa v. Auto Club Indemn. Co., 2022 Tex. App. LEXIS 6520 (Tex. Ct. App. Aug. 30, 2022).

    Sosa’s house was damaged during Hurricane Harry on August 26, 2017. Sosa filed a claim with Auto Club. She reported that two feet of floodwater had entered her home, her roof was missing shingles and was leaking, and she had sustained interior damage. An adjuster estimated the cost to prepare the roof damage was $1,191.96, less that her deductible. Auto Club determined that any remaining damage was caused by flood water, which was expressly excluded from coverage. 

    On November 11, 2020, Sosa filed suit against Auto Club for breach of the policy. Among other things, she argued the adjuster spent minimal time at her home inspecting and was inexperienced. In its answer, Auto Club asserted Sosa’s claim was time-barred by the statute of limitations. Sosa then filed an amended complaint and changed the date of the loss from August 26, 2017, to June 28, 2019. 

    Auto Club filed a motion for summary judgment, primarily arguing the suit was time-barred by both the statute of limitations and the two-year limitations period in the policy. The trial court granted summary judgment to Auto Club.

    On appeal, Sosa primarily agued hat her loss occurred in June 2019, not during Hurricane Harvey in 2017. Therefore, the lawsuit filed in November 2017 was not time-barred. She did not challenge the summary judgment order on the ground that her claimed damages were covered under the policy. Her appellate brief did not mention flood or surface water.  

    Sosa did not ague that the trial court erred by granting summary judgment on the ground that her policy excluded coverage for her damages because they resulted from flood or surface water. This ground independently supported summary judgment in Auto Club’s favor because Auto Club was not liable for damages expressly excluded under Sosa’s homeowner’s policy. Therefore, any other error about which Sosa complained on appeal was harmless in light of the unchallenged ground. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.