Emergent LLP Partner Peter Roldan Publishes Article on Potential Conflicts in Insurer-Funded Defenses

Emergent LLP partner Peter Roldan represents corporate and individual policyholders in insurance coverage and bad faith litigation.  In the most recent edition of the Bar Association of San Francisco's Bulletin, Peter has published an article addressing potential conflicts for policyholders to bear in mind when they are defended by counsel paid for by their insurer.

Read the article at the link here.  Email Peter (peter@emergent.law) or contact us to learn more about how Emergent LLP enforces its clients' legal and contractual rights.

Seth Rosenberg's Anti-Bullying Work Featured in Palo Alto Media

An anti-bullying case filed by Emergent LLP partner Seth Rosenberg, who leads the firm's personal injury trial practice, has been featured in both the Palo Alto Daily Post and Palo Alto Online.  The lawsuit seeks compensation on behalf of a special education middle school child who was bullied repeatedly, without intervention by the school district.

Emergent LLP stands against bullying.  To learn more about Seth's practice, email him (seth@emergent.law) or contact us.

Seven Tips to Get Your North Bay Fires Insurance Claim Paid

For survivors of disasters such as the recent North Bay fires, insurance coverage is crucial for recovery and for rebuilding.  As an advocate for insurance policyholders, Emergent LLP partner Peter Roldan helps them to maximize coverage for their losses.  Below are a few of his tips for navigating the claims process and dealing with insurers.  You can reach Peter by emailing him (peter@emergent.law) or contacting us.

1) Give prompt notice of your claim

I can’t stress enough how important it is to give notice of a loss as soon as possible.  Obviously, if your insurance company doesn’t know about the claim, it can’t pay it.  In situations like the North Bay fires, insurance companies will be inundated with claims, so it’s imperative that policyholders get their claims into the queue.  Opening a claim also allows you to request cash advances for additional living expenses (ALE) and for purchasing necessities.

Finally, notifying your insurer starts the clock running with respect to fair claims handling deadlines, putting the onus on the insurer to promptly begin its investigation and adjustment of your claim.

2) Document your loss as thoroughly as possible

Your insurer can’t pay for damages that it doesn’t know about.  Ultimately, it’s up to the policyholder to provide the insurer with proof of loss.  To help speed up the process and ensure that you’re reimbursed for all covered losses, you should send your insurer as much information as possible regarding your damaged property and any additional expenses relating to the loss.  This includes receipts, photos, or videos of damaged items, as well as property inventories.

3) Keep written records of all communications with your insurer

Maintain a file of all written communications with your insurance company, and keep a detailed log of all your telephone conversations and any face-to-face meetings with the insurer’s representatives.  These records will come in handy when you need to follow up on your claim (see tip no. 4, below) and will be especially important if you need to file a lawsuit against the insurance company to recover your insurance benefits.

4) Follow up and be proactive

Even the most well-meaning claims adjuster sometimes gets swamped.  To keep your claim from falling through the cracks or getting sent to the bottom of the to-do pile, follow up with your insurance company on a regular basis—don’t let more than two weeks pass without some sort of contact with your insurer.   Squeaky wheel gets the oil, etc.  But be polite—nasty letters won’t necessarily help, and they certainly won’t look good if you end up having to go to court.

5) Know the coverage available under your policy

Although a good claims adjuster will work with a policyholder to try to identify the elements of a covered loss, you shouldn’t rely solely on the adjuster’s representations regarding the available coverage (see tip no. 7, below).  Familiarize yourself with the coverage provided in your policy and don’t be afraid to ask the claims adjuster whether a loss or expense is covered (and make your request in writing).

6) Don’t sign any contracts or legal documents without consulting an attorney

As part of the claims handling process, your insurer may ask you to sign a release or an assignment of rights.  It’s a good idea to have any such release or assignment reviewed by an attorney before signing, as you may be giving up important rights.  Always ask for copies of documents you sign.

7) Remember that the insurance company is not your friend

Insurance companies spend a lot of money to convince you that you’re in good hands or that they make good neighbors.  They also hire famous athletes and actors, and have cute mascots to help bolster their images in the eyes of consumers.  Don’t believe the hype.  Treat your insurance claim like any other business transaction or negotiation.

While there’s no need to be paranoid and to think that all insurance companies are out to get you, do remember that insurance companies are run by human beings and that human beings make mistakes and make bad decisions.  Don’t count on your insurance company to look out for your interests.  By being knowledgeable about your policy and the claims process, you can usually ensure that you are getting the benefits you are entitled to under your policy.

However, be sure to seek out the services of an experienced and qualified insurance law attorney, if needed.  Insurance companies have plenty of lawyers on their side, so you’ll want to have your own attorney to fight for you if you are being treated unfairly.

California Appellate Court Clarifies When Construction Professionals’ Knowledge Will Be Imputed to Real Property Seller

Emergent LLP partner and real estate litigator Johnny J. Yeh closely follows developments in the California appellate courts.  Below, he discusses a recent decision analyzing when an architect, engineer, or general contractor’s knowledge of property defects will be imputed to the seller in litigation brought by the buyer.  To stay up to date with this and other Emergent news, contact us.

Recently, the Court of Appeals issued its opinion in RSB Vineyards, LLC v. Orsi, 2017 WL 4325299 (Cal. Ct. App. Sept. 29, 2017), which was certified for partial publication.  The setup of the case is straight-forward.  Defendants purchased a vineyard and engaged in remodeling work to convert a residence on the property into a wine tasting room.  Throughout the process, defendants, who were not construction professionals, relied on their architect, structural engineer, and general contractor to ensure that the work conformed to applicable building codes and standards.  Subsequently, plaintiff purchased the vineyard from the defendants, including the wine tasting room.  Shortly thereafter, plaintiff discovered that the wine tasting room was structurally unsound and had to demolish it.  Plaintiff then sued defendants, claiming misrepresentation and omissions with respect to the sale.  Defendants, in turn, successfully moved for summary judgment, arguing that they had no actual knowledge of the defects at issue.

On appeal, plaintiff argued: (1) that it had provided evidence creating a triable issue of fact as to defendants' actual knowledge; and (2) that it had no obligation to demonstrate defendants' actual knowledge because the knowledge of their construction professionals could be imputed to them, and the evidence showed the deficiencies were so severe that those professionals must have known of these defects.

The court quickly disposed of the first point, noting that many of the alleged defects "were discovered only during the process of demolition."  Id. at *4.  The court further observed there was a lack of evidence showing that the defects "would have been apparent to a non-professional."  Id.  The court likewise rejected plaintiff's appeal to the sheer number and severity of the defects, noting that they were "technical matters" that would not be "apparent to a person unskilled in construction or structural engineering."  Id. at *5.

The court's discussion of plaintiff's second point was more interesting.  The court accepted the rule (fairly well-established in the law) that a principal could be charged with the knowledge of his agent "while the agent was acting in that role and within the scope of his or her authority as an agent."  Id.

However, the court did not accept plaintiff's suggestion that defendants’ contractual professionals were necessarily "agents."  Specifically, the court pointed to Civil Code section 2295, which defines an agent as "one who represents another . . . in dealings with third persons."  Id. at *6.  Based on this language, the court noted that "if a service provider simply furnishes advice and does not interact with third parties as the representative of the recipient of the advice, the service provider is not acting as an agent."  Id.  The court then concluded that there was "no evidence to suggest [defendants'] professionals were acting in the role of agent when they acquired . . . knowledge" about the defects.  Id.  Indeed, such knowledge "would have been gained while the professionals were planning or carrying out the work of renovating the residence," and not while acting in their role as agents.  Id.

In addition, the court dismissed plaintiff's affirmative misrepresentation claims on the basis that the representations were, in fact, true.  Finally, the court dismissed plaintiff's breach of contract claim, which was also premised on defendants' failure to disclose.

Ultimately, RSB reminds litigants of an important wrinkle in the process of proving the actual knowledge requirement for a fraud-based claim against a seller of property.  Specifically, if a litigant is going to impute a contractor’s or other professional's knowledge of a defect to the seller, the litigant should prepare to demonstrate that the contractor or professional acquired knowledge of the defect while acting as an agent (as opposed to acting as a mere service provider).  Careful and thoughtful use of discovery is a must in this respect, and creating a solid record of the conduct and actions of the construction professionals is critical.

Emergent Partner Seth Rosenberg Quoted on Medical Malpractice Challenges

This week, Drugwatcher, a website that tracks the pharmaceutical and medical industries, published a series of interviews with leading medical malpractice attorneys -- including Emergent LLP partner Seth Rosenberg.  You can read his thoughts on the challenges of litigating medical malpractice cases in California here.

Seth has obtained millions of dollars for clients in settlements and verdicts in personal injury cases, including products liability, vehicular negligence, medical malpractice, and wrongful death actions.  To find out whether he can help you, email him (seth@emergent.law) or contact us.

California Appellate Court Clarifies Availability of Emotional Distress Damages in Nuisance Cases

Emergent partner and real estate litigator Johnny J. Yeh closely follows developments in the California appellate courts.  Below, he discusses a recent decision clarifying the availability of emotional distress damages in nuisance actions.  To stay up to date with this and other Emergent news, contact us.

Most real estate litigators are well aware that, in addition to any diminution in value to real property that a nuisance may cause, a plaintiff can also recover damages for the discomfort and annoyance occasioned by a nuisance.  More specifically, those damages reflect a recovery "that would reasonably compensate [the plaintiff] for the annoyance and discomfort caused by the injury to [the plaintiff's] peaceful enjoyment of the property that [the plaintiff] occupied."

While the availability of discomfort and annoyance damages are well-established in the law, there was until recently more ambiguity as to whether plaintiffs could recover emotional distress damages arising in connection with the nuisance.  Certain cases maintained that emotional distress damages were simply not allowed.  Other cases reached a similar conclusion, holding that emotional distress damages "as a personal injury, are not available in an action on a private nuisance."  In contrast, other cases suggested that emotional distress damages are, in fact, available in a nuisance action.

In early 2017, the landscape for nuisance-related damages received significant clarification with the issuance of the decision in Hensley v. San Diego Gas & Electric Co.  In Hensley, plaintiffs William and Linda Hensley sued the defendant after their property suffered severe fire damage, alleging, among other claims, causes of action for nuisance and trespass.  In the course of the litigation, a dispute arose as to whether Mr. Hensley, who had not been physically present on the property at the time of the fire, could recover for his emotional distress as a component of his discomfort and annoyance damages.  Such damages included harm arising from stress, worry, the aggravation of Mr. Hensley's suffering as a result of Crohn's disease, lost income, and medical expenses.

At the trial level, the defendant moved to exclude evidence of Mr. Hensley's emotional distress damages, and the trial court granted the motion, stating that such damages "fell within the rubric of 'general' emotional distress damages, which under [an earlier decision] could not be categorized as the 'distinct' and 'more minimal' annoyance and discomfort damages recoverable for nuisance and trespass."  The parties later entered into a stipulated judgment providing that plaintiffs would take nothing from defendant and contemplating that plaintiffs would appeal the judgment.

On appeal, the Court of Appeals for the Fourth District confirmed that "once a cause of action for trespass or nuisance is established, a landowner may recover for annoyance and discomfort, including emotional distress or mental anguish, proximately caused by the trespass or nuisance."  The Hensley court further held that the rule of law applies "even where the trespass or nuisance involves solely property damage."  It also concluded that the amount of such damages were "'left to the sound judgment and discretion of the trier of facts without necessity of specific evidence as to such amount.'"

Hensley's decision is interesting for several reasons.  First and foremost, it appears to settle conclusively whether emotional distress damages are recoverable in a nuisance action as a component of discomfort and annoyance damages.  The holding opens the door for an additional set of damages for a plaintiff who has suffered more than the loss of enjoyment of his or her property.  In addition, the decision also indicates that the plaintiff need not be present on the property at the time of the invasion, which further expands those instances in which a plaintiff can seek emotional distress damages for nuisance claims.

In a separate and somewhat more esoteric vein, the Hensley decision also expands the time frame in which plaintiffs can seek to recover emotional distress damages.  More specifically, since the emotional distress damages are tied up in a cause of action relating to the injury to property and are not considered personal injuries, Hensley allows the recovery of emotional distress damages under the three-year statute of limitations that govern nuisance actions (so long as their has been an invasion of a protectable property right that forms the basis for the emotional distress damages), as opposed to the two-year statute of limitations that would govern a garden-variety intentional infliction of emotional distress claim.