San Diego

October 28, 2013

Policyholders: Beware of Choice of Law Provisions

Source: Saxe Doernberger & Vita, P.C., October 2013

New York District Court Applies “No Prejudice” Rule to Late Notice Claim for Policy “Issued and Delivered” Outside the State with NY Choice of Law Provision

A New York federal district court applied the antiquated “no prejudice” rule to an insured’s late notice claim in Indian Harbor Insurance Co. v. City of San Diego, 2013 WL 5340380 (S.D.N.Y. Sept. 25, 2013). The insurance policy in question was issued in Pennsylvania, delivered to the policyholder in California, and insured risks located in California. The policy contained both New York choice of law and forum selection clauses. In holding that the insurer had no duty to indemnify, the court held that only those policies “issued and delivered” in New York are entitled to take advantage of New York’s statutory “notice-prejudice” standard, which requires that an insurer show prejudice resulting from the policyholder’s late notice in order to deny coverage on that basis. Rather, the court held that foreign insurance policies with New York choice of law provisions are subject to the draconian common law “no prejudice” standard, under which an insurer does not have to show that it was prejudiced by late notice in order to deny coverage.

The Indian Harbor case involved three underlying pollution claims made against the California State Association of Counties and the City of San Diego (collectively “the City”). For each claim, the City failed to give timely notice to the insurer after receiving the claim. The insurer disclaimed coverage and sought a declaration that it had no duty to indemnify the City due to the late notice.…

October 21, 2013

The Right Way to Write Builders Risk Insurance

Source:, October 2013
By: Jeff Cavignac

An effective construction insurance program requires the dovetailing of several different policies in order to protect each project stakeholder. General liability and workers’ compensation are critical elements of insuring a construction project, but the keystone is builders risk coverage.

Builders risk, often called “course of construction,” is a first party property coverage designed to insure the real property under construction. The coverage is purchased by one party, but the policy ideally will extend protection to all parties that may have an insurable interest in the real property.

Standardized builders risk policies are the exception; most insurance companies choose to create their own manuscripted forms and coverage varies greatly. Because no two construction projects are the same, it is important to analyze what could go wrong and then tailor the builders risk coverage to match those exposures.

The key to an effective builders risk policy is understanding the contract’s insurance requirements and indemnity sections. The insurance section specifies who is responsible for buying the builders risk insurance and exactly what coverage it includes. The indemnity section of the contract establishes the party that will be responsible for various losses that could occur during the course of construction, and under what circumstances the parties to the contract have waived their recovery rights against one another. It is also helpful to review the project’s financing documents to determine the coverage the lender requires.…

February 22, 2013

Court dismisses San Diego’s claims of damage from petroleum releases

Source:, February 15, 2013
By: David Erickson and Mark Anstoetter, Shook Hardy & Bacon LLP

A federal court in California has dismissed the City of San Diego’s claims against the owner of a former petroleum depot. California v. Kinder Morgan Energy Partners, L.P., No. 07-cv-1883 (S.D. Cal. 1/25/13). Petroleum from the former depot operation had reached the groundwater and was found in water below the city’s property. Remediation of the depot site had proceeded with cooperation and oversight by the San Diego Water Board. The subsurface petroleum contamination was addressed in accordance with agreed cleanup levels. San Diego, however, later ordered remediation to pre-release conditions and sued seeking damages.

San Diego raised a variety of claims, all of which in some way sought damages for other uses that the city might have made of its property absent the contamination, including use as a water storage site and for multiuse development. According to the court, the city failed to prove that it was necessary to remediate the property beyond the levels contemplated in the existing remediation. It also held that the city could not obtain damages (largely measured by loss in rental value) for “lost” uses that the city had neither attempted nor proved were possible at the site. Although the petroleum was within a groundwater zone that had historically been used to provide potable water, no such use had been made since 1936. The court thus determined that the city had not proven that it could make such use of the property, even if remediation were to return the contamination to background levels.


February 5, 2013

Cotton industry concerned with pesticide blame in honey bee decline

Source: Southwest Farm Press, January 30, 2013
Posted on:

Dr. Don Parker, NCCs manager of Integrated Pest Management, told attendees at the American Honey Producers Assoc. (AHPA) 2013 national convention that the U.S. cotton industry is concerned with the level of attention being given to pesticides as a factor of declining bee colonies.

An invited speaker at the convention in San Diego, Calif., on Jan. 8-12, Parker emphasized that recent surveys of beekeepers have indicated the greatest concerns were starvation, weather, weak colonies in the fall and lack of mite control — yet most news media outlets have provided the public with stories related to pesticides. He further emphasized the change in pesticide use in cotton production with little use of organophosphates that once dominated the market.

Parker noted cottons environmental footprint has continued to improve over time and that the industry is interested in working with producers and beekeepers to identify improvements at local levels rather than mandates that do not fit an individual production regions different needs. He also encouraged beekeepers to learn more about crop producers different pest protection needs and why they select the products they select. He urged beekeepers to recognize that there are many areas in which producers and beekeepers could work together to address greater needs for pollinators such as habitat.

He also expressed concerns that regulations from EPA limiting producers choice of products to protect yield could reduce the cooperation of producers who might then feel that allowing hives on their land creates a liability.

Additional information about AHPA is at


December 6, 2012

Mold economic injury claim rejected

Source:, November 2, 2012
By: Sean Wajert, Shook Hardy & Bacon LLP

The issue of mold-related litigation remains of interest to our readers, perhaps even more so in the aftermath of the widespread damage from Sandy. Recently a federal judge rejected claims alleging that Welk Resort San Diego allowed mold to grow in its rooms causing plaintiffs’ “Platinum Points” time share currency to lose value as a result. See Martinez v. The Welk Group Inc. et al., No. 3:09-cv-02883 (S.D. Cal.).

Plaintiff alleged economic damages stemming from defendants alleged failure to abate and disclose the presence of mold at the Welk Resort San Diego. (Younger readers may not recall, but born in a German speaking town in North Dakota in 1903, Mr. Lawrence Welk didn’t learn to speak English until he was 21. This gave him the accent that marked his signature line: “Wunnerful, wunnerful.” His Lawrence Welk Show was cheerful and wholesome with bubbles, the music that Welk called “champagne music,” and a parade of smiling dancers, singers and musicians that older audiences loved.)

Plaintiff purchased “Platinum Points” from Welk Resort Group, Inc. in 2007, which provided him with the opportunity to stay at Welk resorts around the world or at any other time-share resort that accepts such Platinum Points for vacation stays. At some point during the sales process, plaintiff allegedly asked, and the sales agent assured him the Resort was clean, safe, and well maintained. Plaintiff said he purchased his Platinum Points solely for the purpose of staying at the Welk Resort San Diego, which is located in Escondido, California, and has more than 650 units in three subdivisions: the Lawrence Welk Resort Villas, the Villas on the Green, and the Mountain Villas. During a visit to the Resort in 2009, plaintiff notified the front desk that his room smelled musty. Later in a utility closet, he found something that may have been mold, but he could not be certain. A neighbor later told him him that there was mold at the Resort.…

September 20, 2011

Inquiries begin in collapse of canopy at San Ysidro crossing

Source:, September 16, 2011
By: Elizabeth Aguilera, Debbi Baker and Sandra Dibble

Federal officials hope to learn in about a week what caused a construction canopy to collapse Wednesday at the San Ysidro Port of Entry, sending 11 motorists to the hospital and wreaking havoc for thousands of people trying to cross from Mexico into San Diego.

By early Thursday morning, pedestrian and vehicle traffic was moving smoothly through the 14 lanes that had reopened. Travelers said wait times were shorter than usual, perhaps because Mexican media organizations had urged people to avoid the area unless they absolutely needed to cross the border.

U.S. Customs and Border Protection said it was unclear when the remaining 11 northbound lanes would be back in operation. Chris Maston, director of field operations in San Diego for the agency, said Thursday that any increase in lane capacity would likely be incremental over the next few days. (Southbound lanes were unaffected by the accident.)

At a midday news conference, Maston and other federal officials said engineers, government safety experts and others have begun their investigations into the collapse.…

March 30, 2011

Socorro-Horizon wastewater fight goes on

Source: El Paso Times (TX), March 28, 2011
Posted on:

A fight between the Horizon Municipal Utility District and the city of Socorro over a wastewater discharge project here continues.

Most recently, a district judge ruled the Horizon Municipal Utility District has to get proper permits to continue with the project.

However, Benny Davis, president of the Horizon Municipal Utility District board of directors, said the district is appealing the court’s decision.

The Horizon Municipal Utility District sued Socorro in November for allegedly not letting them finish a $2.2 million wastewater discharge project in the Mesa Spur Drain, an irrigation canal owned and operated by El Paso County Water Improvement District No. 1.

In a written statement, the city of Socorro said a judge ruled the utility district has to apply for the permits in order to discharge three million gallons of wastewater per day through a pipeline that flows into the Mesa Spur Drain.

Socorro officials said these rules are designed to protect the Lower Valley community’s public health and safety.…

January 4, 2011

Grape Grower Fighting Pesticides

Read here about a grape grower in Oregon fighting pesticides invading their property from other areas.