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No Room at Nut Tree. But Why?

A pregnancy clinic that offers ultrasounds and counseling to expectant mothers signed a lease last October at the Nut Tree Road Medical Arts Center in Vacaville California. Alpha Pregnancy Clinics was looking for more square...more

The Construction Advantage – Issue 13

Welcome to the thirteenth edition of The Construction Advantage! In this issue, we bring you cases of expanded insurance coverage in New Hampshire and fraudulent concealment cases from California and Minnesota. We hope that...more

Proof of Claim: Foreign Qualification Requirements May Be More Important Than You Thought

In re Flex Fin. Holding Co., 518 B.R. 891 (Bankr. D. Kan. 2014) – A landlord filed a proof of claim for ~$1.34 million for a debtor’s prepetition breach of its lease. The debtor objected based on the landlord’s...more

Eleventh Circuit Court of Appeals Finds Late Notice Barred Claim for Hurricane Damage as a Matter of Law and Upholds Award of...

In The Yacht Club on the Intracoastal Condo. Assoc., Inc. v. Lexington Insurance Company, 2015 U.S. App. Lexis 293 (11th Cir. Jan. 8, 2015), the Eleventh Circuit upheld a district court’s entry of summary judgment in favor of...more

The Second District Court of Appeals Holds That Due To Inconsistencies Between The Provisions Of A Promissory Note And A Deed Of...

Facts - U.S. Bank's predecessor bank extended a $62,000,000 loan (Loan) to three legal entities (Borrowers). The Loan was secured by a deed of trust on real property. Mr. and Mrs. Yashouafar (Yashouafars) guaranteed...more

PA Supreme Court Declines to Extend Multiple Trigger Theory to Property Damage Claims

Where an insured loss causes damages that straddle multiple policy periods, insurers and insureds must determine which policies are implicated. Clear rules regarding “trigger” of coverage benefit policyholders seeking to...more

2014 Hail-Related Insurance Litigation Year In Review

The number of lawsuits arising from hail-damage claims to residential and commercial properties has increased dramatically over the past few years. Indeed, since 2012, hundreds of lawsuits alleging underpayment of...more

Pennsylvania High Court Rules First Manifestation Trigger Applies to Property Damage Claims

The Pennsylvania Supreme Court in Pennsylvania Nat’l Mut. Cas. Ins. Co. v. St. John, et al., 2014 WL 7088712 (December 15, 2014), has affirmed that a first manifestation trigger applies to property damage claims under a CGL...more

N.C. Court of Appeals: Restrictive Covenant Prohibiting "Store" Does Not Prohibit "Parking" for a Prohibited Store

How broadly will the appellate courts interpret a restrictive covenant applicable to real property? Not so broadly as to prohibit a parking lot to be used by customers for an otherwise expressly prohibited use....more

Business Privilege Taxes Paid On Leases Refund/Appeal Filing Needed By March/April 2015

On September 19, 2014, the Pennsylvania Commonwealth Court in Fish, Hrabrick and Briskin v. Township of Lower Merion, No. 1940 C.D. 2013, held that lease receipts are not taxable under local business privilege tax ordinances....more

Bankruptcy Beat: Connecticut Bankruptcy Court Approves Settlement In Two Related Cases with a Torturous Twelve Year History

The Chapter 7 case of First Connecticut Consulting Group, Inc. and James J. Licata (the “Cases”) began as Chapter 11 cases over twelve years ago. The cases were consolidated and remained in Chapter 11 for four years as...more

General Contractor’s Prospective Waiver of its Lien Rights is Enforceable in California

In an opinion published in September 2014, entitled Moorefield Construction, Inc. v. Intervest Mortgage Investment Company, et al., D065464, the California Court of Appeal held an original contractor can contractually waive...more

New York District Court Holds Lessee Not Liable Under CERCLA as an Owner

A New York federal district court recently held that a lessee will not be found liable under CERCLA as an owner where the lessee does not possess sufficient indicia of ownership. (Next Millennium Realty, LLC v. Adchem Corp.,...more

With Respect to Discoverability, Indiana Federal Court Distinguishes Between Pre-Suit and Post-Suit Reserves

In May, we reported on a Third Circuit decision holding that loss reserve information was generally irrelevant and not discoverable. In October, a federal court in Indiana came to the same conclusion with respect to...more

Full Credit Bid Causes Loss of Insurance Proceeds

A recent case serves as a reminder of one of many risks posed by making a full credit bid at a foreclosure sale: the lender may lose the right to recover insurance proceeds for pre-foreclosure damage to the foreclosed...more

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with...more

A Cautionary Tale for General Contractors

Construction lenders often go to great lengths to ensure their deeds of trust have priority over mechanic’s liens. Typically, as part of the construction loan process, general contractors are asked to sign documents...more

Insurance Alert: Insurer Delay Extends Time to Repair or Replace Damaged Property

In Stephens & Stephens XII v. Fireman's Fund Ins. (No. A135938, filed November 24, 2014), the plaintiffs obtained property insurance on a warehouse. Within a month, it was discovered to be stripped of all wiring and metal....more

7th Circuit Dusts off the Erie Crystal Ball on Title Insurance Defense

Lawyers generally enjoy prognosticating future developments in the law. Under the Erie doctrine, federal judges have a legitimate need to engage in this pastime. Recently, in Philadelphia Indemnity Ins. Co. v. Chicago Title...more

Florida High Court To Decide Whether State Insurer Is Immune From Statutory Bad Faith Claims

The Florida Supreme Court has accepted for review a First District decision holding that Florida’s state insurer of last resort, Citizens Property Insurance Corporation, is not immune from a statutory bad faith failure to...more

New York Supreme Court Pro Rata Allocation for MGP Sites on Long Island Clarifies Self-Insured Periods

A New York State trial court judge applied a pro rata time on the risk allocation for pollution from manufactured gas plants on Long Island. Keyspan Gas East Corp. v. Munich Reinsurance America, Inc.,Index No. 604715/1997,...more

Regional Steel: the continuing effort to avoid the cost of correcting the insured’s work

Casualty insurers normally do not expect to pay the cost of their insureds simply doing a good job. Insurers typically view their contracts as assuming the risk of delineated consequences – damages – if the insured’s work...more

Florida’s Second District Holds that Once Coverage is Established a Dispute over the Scope of Necessary Repairs Falls Squarely...

In Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., 2014 Fla. App. LEXIS 17033 (Fla. Dist. Ct. App. 2d Dist. Oct. 17, 2014), the Second District reversed a Hillsborough trial court’s denial of Cincinnati Insurance...more

Recent Decision on Imposing a Business Privilege Tax

The Commonwealth Court has rendered a significant decision regarding ability of municipalities to impose a business privilege tax on the gross receipts generated by real estate leases. The Pennsylvania Commonwealth Court, in...more

Tenant Who Sublets A Superfund Site Is Not Likely To Be A CERCLA Liable Party

It is generally the rule that a lessee who does not operate the property it rents will not be liable under CERCLA except in the unusual circumstance where the lessee qualifies as an “owner” of the property. Typically, this...more

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