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Posts Tagged ‘federal’

Federal Court Finds Exclusions in HOA GL Policies Applicable to Wrongful Death Suit

Posted on: September 7th, 2018

By: Peter Catalanotti

Colony Insurance issued a commercial general liability policy to The Courtyards at Hollywood Station Homeowners Association Inc. (“HOA”) that operates an apartment complex in Florida. Great American Alliance Insurance issued an umbrella policy to the HOA.

Two tenants were killed in their sleep by carbon monoxide poisoning at a unit in the complex.

The mother of one of the tenants filed a wrongful death suit in state court alleging that the deaths were caused by a car fumes that traveled through the HVAC of the complex.

The insurance carriers filed a declaratory relief lawsuit in federal court arguing that they are not obligated to cover the wrongful death suit because of a total pollution exclusion.

Both policies contain an exclusion that the policy does not provide for coverage for “bodily injury which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.”

The exclusion contains an exception whereby it does not apply to bodily injury caused by “smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidifier the building.”

The HOA argued that the exception should apply because the carbon monoxide seeped through the AC vents.

In July 2018, the Court granted plaintiffs’ motion for summary judgment.  The Court found that the complaint “only lists the motor vehicle left running in the garage as a potential source of the carbon monoxide, and the Court cannot infer any other sources to create a duty to defend” (emphasis added).

According to the Court,

Since the source is unknown, Defendants would have the Court find that the carbon monoxide may have been produced by or originated from the building’s heating, cooling, or dehumidifying equipment, so the Exception could potentially apply. However, Plaintiffs’ duty to defend Courtyards HOA cannot arise from an inference that the carbon monoxide could have been produced by, or originated from, equipment used to heat, cool, or dehumidify the Unit.

The Court ultimately found that the facts alleged do not fall within the exception. Therefore, the carriers had no duty to defend in the underlying wrongful death action.

Colony Insurance Co. et al. v. The Courtyards at Hollywood Station Homeowners Association Inc. et al., Case #17-62467, in the U.S. District Court for the Southern District of Florida.

If you have any questions or would like more information, please contact Peter Catalanotti at [email protected].

Pass That Dutch: California Insurers Respond to Budding Cannabis Industry

Posted on: July 2nd, 2018

By: Kristin Ingulsrud

California Insurance Commissioner Dave Jones announced on June 4, 2018 his approval of the Cannabis Business Owners Policy (CannaBOP) in California.  The new CannaBOP program was designed for cannabis dispensaries, storage facilities, processors, manufacturers, distributors, and other related businesses.  The CannaBOP program includes property and liability coverage for qualifying businesses.

Other recent offerings by insurers to the California cannabis industry include the first commercial insurance from an admitted carrier in November 2017, the first surety bond program in February 2018, and the first coverage for commercial landlords and a product liability and product recall program in May.

In April, President Donald Trump seemingly called off Attorney General Jeff Sessions’s war on marijuana and promised to support legislation that would protect states that have legalized marijuana from a federal crackdown.  The unpredictability of the current administration in regards to federal enforcement is just one of the unique issues the legalized cannabis industry faces.

Commissioner Jones hosted a webinar in May, Weeding through the Unique Insurance needs of the Cannabis Industry with the National Association of Insurance Commissioners Center for Insurance Policy and Research.   “Cannabis businesses face various insurance gaps—which means cannabis customers, workers and business owners may not have access to insurance to help them recover if there are accidents, injuries, property damage, or any of the things commercial insurance typically covers,” said Jones.

Topics included the effects of conflicting state and federal law on insurance claims, policy exclusions and gaps in coverage.  The webinar also covered the future of the cannabis industry and new trends such as on-site consumption, cryptocurrency, and blockchain.

Commissioner Jones  held the nation’s first public hearing in October 2017 to identify insurance gaps faced by the cannabis industry as part of his ongoing initiative to encourage commercial insurers to offer tailored coverage.  Since that time, insurers in California continue to expand their offerings to the cannabis industry.

If you have any questions or would like more information, please contact Kristin Ingulsrud at [email protected].

Federal Jurisdictional Update

Posted on: February 19th, 2018

By: Owen T. Rooney

Title 28 of the United States Code Section 1367(d) allows for federal supplemental jurisdiction over state law claims. This statute, as now construed by the US Supreme Court in Artis v. District of Columbia, holds that the statutes of limitations on any state law claims stops while the claim is in federal court, such that the act of filing in federal court acts as a “stop clock” on any limitation period applied to a state law claim. This means that, in the event the district court enters judgment on federal claims and then dismisses state law claims, i.e., declines to retain jurisdiction over them, plaintiffs will have all of the remaining time on their state claims when the federal action was filed  plus 30 days.

Notably, this decision overrules the district court and the DC Circuit Court of Appeals decisions against Artis, as well as the California Supreme Court’s 2014 decision in City of Los Angeles v. County of Kern.

If you have any questions or would like more information, please contact Owen Rooney at [email protected].

California’s Protecting Immigrant Worker Protection Act (AB-450)

Posted on: January 11th, 2018

By: Layli Eskandari Deal

On October 5, 2017 Governor Brown signed AB-450 into law further taking California into the federal immigration landscape.  The new State law took effect on January 1, 2018.

Here are some key elements:

  1. Employers no longer can voluntarily grant access to nonpublic areas of the company to any immigration enforcement agent.  Access can only be granted when presented with a judicial warrant.
  2. The new law does not restrict Department of Homeland Security from providing a Notice of Inspection (NOI) to an employer demanding the employer’s I-9 forms within 3 days of service.  The employer must honor the NOI.
  3. If a NOI is received, the employer must post a notice at the worksite, in the language the employer normally uses to communicate information with employees, within 72 hours of receipt.  The notice must communicate the following:
    1. [Name of Issuing authority] has issued a Notice of Inspection and will be conducting an inspection of Employee Form I-9s or other employment records;
    2. Date of receipt of NOI
    3. The “nature of the inspection” – to the extent known by the employer.
  4. Give notice to the “employee’s authorized representative” (any collective bargaining representative), if any, within 72 hours of the receipt of the NOI.
  5. Provide a copy of the NOI to any “affected employee” upon reasonable request.
  6. Notify “affected employees” within 72 hours of the agency’s inspection results as well as written notice of the obligations of the employer and employee arising from the inspection.
  7. Employers are prohibited from reverifying the employment eligibility of any current employee at a time or manner not required by law or that would violate employer’s E-Verify Memorandum of Understanding.
  8. Penalties: First offense – $2,000 -$5,000 / each subsequent offense – $5,000-$10,000.

We expect that the Department of Homeland Security will conduct more inspections this year.  It would be beneficial for California employers to have policies in place to handle these situations if they should arise.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Employers Beware: Florida’s Minimum Wage Set to Increase by 1.5 Percent

Posted on: October 17th, 2012

By: Jonathan Kandel

The Florida Department of Economic Opportunity recently announced that the Florida minimum wage will be $7.79 per hour beginning January 1, 2013.  This represents an increase of 1.5 percent (or $0.12) from the state’s current minimum wage of $7.67 per hour.

The increase is due to a change in the Federal Consumer Price Index.  In 2004, Florida voters approved a constitutional amendment that established a state minimum wage.  The state minimum wage is recalculated on September 30 each year, based on the Federal Consumer Price Index.

Florida’s minimum wage applies to all employees in Florida that are covered by the federal minimum wage under the Fair Labor Standards Act (FLSA).  Pursuant to the FLSA, a state minimum wage that is higher than the federal minimum wage, which is currently $7.25 per hour, prevails.  Therefore, all employees in Florida must be paid at least $7.79 per hour beginning January 1, 2013.

The increase also affects how much “tipped employees” must be paid.  If an employee meets the requirements for the tip credit under the FLSA, the employer may count tips actually received as wages under the Florida minimum wage.  However, employers must pay “tipped employees” a direct hourly wage, which is calculated by subtracting the 2003 tip credit ($3.02) from the state minimum wage ($7.79).  Accordingly, the direct hourly wage for “tipped employees” will be $4.77 as of January 1, 2013.

Due to the increase, employers in Florida must update their state minimum wage posters.  In addition to the federal posting requirements, Florida requires employers to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees work.  The updated state minimum wage posters can be downloaded in English and Spanish at http://floridajobs.org/business-growth-and-partnerships/for-employers/display-posters-and-required-notices.