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Paul Zimmerman
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Showing 12 posts by Robert N. Berg.

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Insurers Take Notice: Ninth Circuit Rules that EPA Request Letter Triggers Duty to Defend

On May 11, 2016, the Ninth Circuit Court of Appeals ruled that a general liability insurer owed a duty to defend an environmental matter even though no suit had technically been filed.  Ash Grove Cement Co v. Liberty Mutual Insurance Co, et al. (13-35900, 9th Cir. 2016). Pursuant to its authority under section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), the Environmental Protection Agency (EPA) will, as part of its investigation of a Superfund site, typically issue an information request to any person or entity that it believes to have information regarding the release of hazardous substances at the site. The Ash Grove Cement decision establishes that a”104(e) letter” is a “suit” under Oregon law, immediately triggering an insurer’s obligation to defend. This significant Ninth Circuit precedent may impact Superfund-related proceedings well beyond Oregon, and insurance companies will surely be taking notice. (Read More)

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Will You Be Covered Should El Niño Arrive?

After years of drought, California is now receiving warnings that this may be an El Niño winter. The threat of El Niño brings with it the concerns of significant rain fall and resultant flood losses. Unfortunately, most homeowner insurance policies exclude losses caused by flooding. (Read more)

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California Grapples with Landslide Coverage Issues

In California, after a period filled with a major drought, fires, and now predicted heavy rains, we anticipate that this season could bring significant landslide/earth movement losses. Potential insurance coverage to homeowners for such losses under the standard homeowner insurance policy can be quite limited, due to earth movement exclusions. Coverage may be available if there are multiple causes of a particular loss, and one cause is covered. If any cause involves an efficient proximate cause, then coverage may be available.  Garvey v. State Farm Cas. Co. 48 Cal. 3d 395 (1989). However, a review of the policy is necessary due to exclusionary endorsements which may affect coverage under a multiple causation scenario. (Read more)

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Insurers’ Right To Recover Fees Directly From Independent Counsel To Be Decided

Under California Civil Code 2860, an insured who is entitled to a defense from a liability insurer may also be entitled to select counsel of its choice, even though the insurance policy states that the insurer has the right and duty to defend the insured. If an insurer agrees to defend under a reservation of rights (a letter advising that, at the end of the day, the insurer may actually not cover a loss even though it is currently defending), the insured may have a right to select defense counsel of its choice.  Whether this reservation letter does, in fact, trigger the right of an insured to select its own counsel usually is determined by whether the reservation letter creates a conflict between the insured and the attorney that has been selected by the insurance company. (Read More)

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Directors and Officers Insurance: the Insured v. Insured Exclusion

In the arena of directors and officers insurance (D&O), one of the most controversial and litigated issues involves the insured v. insured exclusion. Since the seminal case of O’Melveny & Myers v. FDIC 512 U.S. 79, 86 (1994), this exclusion, particularly with respect to its application in cases in which the FDIC has stepped in and taken over a failed bank, has been frequently litigated. (Read more)

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Strategizing Legal Defenses In Vapor Intrusion Lawsuits

A few years ago, there was an uptick in litigation involving mold infestation and damage claims related to the use of Chinese drywall.Today, the environmental phenomenon causing a rash of lawsuits is vapor intrusion.Vapor intrusion happens when soil and groundwater that contain pollutants permeate buildings. This generally occurs when properties are located down gradient from old gas stations (that emit benzene) or from dry cleaners (that emit PCE). The contaminants and toxic fumes rise up, affecting neighboring properties. (Read more)

Rob Berg Discusses Legal Issues Surrounding Vapor Intrusion

Rob Berg explores legal ramifications associated with vapor intrusion. These cases concern the alleged migration of toxic contaminants — such as perchloroethylene, used in dry cleaners, or benzene, used by gas stations — into homes and offices. He discusses the statute of limitations, the role of CERCLA in forming an argument, and how to provide the best legal defenses when responding to vapor intrusion charges.

Robert Berg Presents as Part of the "Construction Claims in California" Seminar

Robert Berg gave a presentation on "Contract Issues" and "Insurance and Bonds" as part of the "Construction Claims in California" Seminar hosted by Lorman Education Services at the Holiday Inn Express & Suites Oakland Airport on Friday, September 26, 2014. In this segment, he discusses the increased liability placed on subcontractors beginning in the late 1990s and the effect this had on insurance policies.

Robert Berg Discusses Fire Insurance on KFWB News 980 Radio Show, Money 101

M&R attorney Robert Berg spoke with Bob McCormick on the KFWB News 980 radio show, Money 101, about homeowners fire insurance on July 14, 2014. In this segment, he explains why it’s necessary for homeowners to have code upgrade and full replacement coverage. He also stresses the importance of updating insurance policies after the completion of home remodeling projects in order to ensure coverage for the new full value of property in the aftermath of a fire.

Robert Berg Discusses Fire Insurance on KFWB News 980

M&R attorney Robert Berg spoke with Bob McCormick on the KFWB News 980 radio show, Money 101, about homeowners fire insurance on May 2, 2014. In this segment, they discuss standard policy coverage, the importance of hiring a private contractor to assess fire damage and common fire hazards situated on or around homes.