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Gail Stargardter prevails on appeal of “no occurrence” insurance coverage case

The Ninth Circuit affirmed Ms. Stargardter’s successful summary judgment on behalf of Atain Specialty Insurance Company. Atain’s insured was hired by a property owner to remove trees. The insured reasonably believed that the trees belonged to the property owner, but it turned out they belonged to a neighbor, who sued the insured. Atain’s policy provided coverage only for claims for property damage caused by an “occurrence”, defined as an “accident.” The court agreed with Atain that it had no duty to defend, holding that there was no potential for coverage because an insured’s subjective belief – no matter how reasonable – did not transform the intentional act of removing trees into accidental conduct for purposes of liability insurance.

Eric Danowitz and Richard DiCorrado obtain judgment in excess of $3.2 million in qui tam action following successful summary judgment and bench trial

Mr. Danowitz and Mr. DiCorrado represented the People of the State of California ex rel. Zurich American Insurance Company in a qui tam action filed in Los Angeles Superior Court against Emphacare Home Care Agency, LLC, Borlie Wong, and others for violations of the Insurance Fraud Prevention Act (Ins. Code Section 1871.7), seeking reimbursement of monies paid for submitting fraudulent claims for workers compensation benefits, and penalties.

Wong was injured in an accident, and filed a workers compensation claim with Zurich. After he received an order from the Workers Compensation Court allowing him to receive care by a Certified Nurse Assistant and Licensed Vocational Nurse, he formed Emphacare and represented to Zurich that it would be providing home health care services to him. Wong concealed his ownership and involvement with Emphacare. Wong fraudulently submitted invoices for services at 24 hours a day 7 days a week, which he did not receive, and which Zurich paid without knowledge that the invoices were fraudulent. Following a bench trial, the court found that Wong was personally responsible for submitting fraudulent bills for services claimed by Emphacare, a company he owned and controlled, and that Emphacare was his alter ego. The court awarded $10,000 as a penalty, and assessment of $2,555,190, calculated as three times the total amount of $851,730 in 75 invoices submitted for Wong’s care, jointly and severally against Wong and Emphacare, plus $684,053.97 in attorney’s fees and costs .

MVJ Coverage Attorneys Win Two Summary Judgment Motions

Our coverage department continues its recent string of successes with two more summary judgment rulings in favor of insurers.

Gail Stargardter recently obtained summary judgment on behalf of Atain Specialty Insurance Company in a case filed in the United States District Court, Northern District of California. The court found that there was no potential for coverage for three cases in which the plaintiffs alleged that Atain’s insured, the owner of a building leased to a sole tenant who produced pornographic videos, was responsible for plaintiffs’ contracting the HIV virus after engaging in sexual activity at a pornographic video shoot. The court held that a Physical and Sexual Abuse exclusion, which precluded coverage for liability arising out of or resulting from sexual behavior intended to lead to, or culminating in any sexual act, applied to bar all claims asserted against the building owner, including claims for negligent hiring and supervision, and ruled that Atain is entitled to costs of defense incurred in defending the insured subject to a reservation of rights and any indemnification payments made on behalf of the insured to settle those claims.

Limor Lehavi recently obtained summary adjudication on behalf of Mid-Century Insurance Company in Orange County Superior Court that there is no continuing duty to defend and no duty to indemnify an insured in a case in which liability was found against the insured based on trespass and nuisance on the grounds that as a matter of law the insured’s liability did not result from any accidental conduct, which is required for the policy to apply. The court also found that Mid-Century ever had any duty to defend a corporation which is alleged by the insured to be his alter ego, but does not otherwise qualify as an insured under the policy. The case will proceed to a bench trial to determine the amount to which Mid-Century is entitled in reimbursement of defense costs incurred to date in defending the insured from claims that were not even potentially covered.

Six Mokri Vanis & Jones, LLP Attorneys Recognized as Super Lawyers and Rising Stars 2017

Two Mokri Vanis & Jones attorneys, Richard DiCorrado and Limor Lehavi, have been named by Super Lawyers among the top attorneys in California for 2017, and are among only five percent of California attorneys to be named to this list.

 

Four Mokri Vanis & Jones attorneys, Omar Yassin, Daniel McKenzie, Brian Merges, and Eric J. Danowitz were named as Rising Stars, which are recognized as the top 2.5 percent of California attorneys under the age of forty who have been practicing for ten years or less.

 

For more information about Super Lawyers, please visit www.superlawyers.com.

Court of Appeal affirms successful summary judgment obtained by Mokri Vanis & Jones partner Limor Lehavi in liability insurance coverage case involving “auto exclusion.”

Fire Insurance Exchange v. Vasquez, 2017 Cal.App.Unpub. LEXIS 2277, 2017 WL 1173730 arose from a tragic motor vehicle accident which occurred when a landlord backed up his large truck in a driveway his home shared with his rental property, and ran over his tenant’s toddler, killing the child. The truck’s insurer accepted coverage. Ms. Lehavi represented the insurance company that wrote insurance policies for the landlord’s home and rental property. That insurer denied coverage for the accident because the rental and homeowner’s policies excluded coverage for injuries resulting from the use of motor vehicles.

 

The parents of the decedent child, represented by attorneys Delores Yarnall, Brian Kabatek and Mark Geragos, attempted to overcome the application of the motor vehicle exclusion by asserting a premises liability claim in addition to the claim for motor vehicle negligence. The premises liability claim was based on the landlord’s alleged failure to provide the tenants with safe ingress and egress from their unit.

 

Applying a test derived from another successful Ms. Lehavi case, Farmers Ins. Exch. v. Superior Court (2013) 220 Cal.App.4th 1199 (Bautista), the Court of Appeal held that the motor vehicle driven by the insured landlord was the active instrumentality of harm, and that the premises liability claim was based on exposing the victim to the danger of negligent automobile use. As a result, the court determined that the premises liability claim was not independent of the negligent driving, and therefore the motor vehicle exclusion barred coverage.

 

To read the Vasquez opinion, click here.