Accidents May No Longer Be Covered Losses

A recent case has just held that intentional conduct, with unintentional results is not covered as an "accidental loss" under an insurance policy. Fire Insurance Exchange v. Superior Court 181 Cal App 4th 388 (2010). This is a big deal, here is why. If you are a contractor or homeowner that built a home on a lot but, inadvertently built a small portion on the neighbor's side of the property line, you have no coverage for the lawsuit when the neighbor sues you for encroachment, nuisance, negligence, or trespass. The reason: you intended to build the house. It does not matter if you unknowingly or accidentally made a mistake on the placement of the home and inadvertently placed a portion of the structure on the neighbor's lot.

Another example of how this will impact regular people. Two kids are playing by the pool, when one kid decides it would be funny to throw his friend in the pool. Unfortunately, he does not throw is friend far enough and his friend hits his head on the side of the pool and suffers a fractured skull. He is sued by his injured friend for negligence to cover the medical costs and he tenders the lawsuit to his homeowner's insurance carrier. The carrier can deny coverage because the boy intended to throw the other boy. It does not matter that he did not intend to hurt his friend.

I am attorney Robert A. von Esch IV. I handle construction defect, real estate, business, and personal injury matters. If you have any questions about this article or any other matter, please do not hesitate to contact me via www.voneschlaw.com.

Mixed Motives Employment Case To Be Decided By Supreme Court

An important case is now pending before the CA Supreme Court: Harris v. City of Santa Monica. Essentially, Harris (a pregnant bus driver) said she was fired because of her pregnancy. The City said she was fired because of her bad performance record, nevertheless, it requested the Court to allow it to put on a mixed motives defense. Essentially, this defense was designed to allow the City to show that it would have fired Harris regardless of her pregnancy, even though her pregnancy may have been considered as one of the reasons to fire. Traditionally, all that a plaintiff is required to prove is that the protected trait (race, sex, religion, etc) was a motivating factor behind the decision to terminate; even if other reasons were considered (poor performance), plaintiff would prevail.

The Court refused to allow the mixed movtives defense. The Court of Appeal reversed and allowed the mixed motives defense. The final decision will now be made by the CA Supreme Court. This is one to watch as it will have an impact on employment litigation.

I am attorney Robert A. von Esch IV. I practice business litigation. If you would like to contact me or have additional questions about this article, I can be reached via http://www.voneschlaw.com/.

Mello Roos Projects Subject To Prevailing Wage?

A case is now pending before the Second District Court of Appeals involving the Azusa Land Partners against the Industrial Relations Agency (IRA). The dispute arose after the IRA found that the Azusa residential construction project was a public works contract to the extent it relied upon Mello Roos to install certain portions of the project, such as pipe lines, sewers, schools, etc. As a result, these portions of the job were subject to prevailing wages (20-30% higher than private construction wages). Azusa sued the IRA to overturn its decision, the Los Angeles Superior Court agreed with the IRA and held that the job was a public works project.

This is an important case for contractors and consumbers alike. If the Court of Appeals upholds the decision, residential housing costs are going to get more expensive as the cost to build the projects will increase. This is one to watch.

I am attorney Robert A. Von Esch IV and I handle construction disputes, construction defect, and real estate matters. If you have any questions, please contact me via www.voneschlaw.com.