Stephen Raucher’s article Businesses Suffer When Disaster Strikes, Too is published in the Los Angeles Daily Journal on December 7, 2018.
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Businesses Suffer When Disaster Strikes, Too
Fire Insurance Claim Pointers
In light of the terrible fires plaguing California, policyholders should keep in mind some basic principles should they find themselves needing to make a claim, or even if they just want to re-evaluate their property insurance policies. Many of these pointers are unique to California law.
- Fire losses must be reported “without unnecessary delay.”
- Policyholders must provide a sworn proof of loss within 60 days of the loss.
- Policyholders must cooperate with the insurer in its investigation of the claim.
- Such cooperation typically includes an obligation to submit to an examination under oath, which can even be a condition to payment.
- The policyholder has a right to be represented by counsel in connection with such an examination, though at his or her own cost.
- The standard fire insurance policy requires that any lawsuit against the insurer be filed within 12 months of the loss, although that can be extended to 24 months if the loss is related to a declared state of emergency.
- Property insurance policies may call for appraisal in the event of a dispute over loss value. Appraisal is similar to arbitration, but less formal. Appraisal cannot be compelled if the loss is related to a declared state of emergency.
- Depending on the policy language, loss is generally based either on “actual cash value” or “replacement value.”
- Actual cash value is measured by the fair market value of the damaged structure as of the date of loss.
- As its name suggests, replacement cost is the reasonable amount necessary to repair and replace with similar construction. Replacement cost coverage is better (and more expensive) for the policyholder.
- Insurers must comply with the Fair Claims Settlement Practices Regulations, which generally require that a claim be accepted or denied within 40 days. Failure to satisfy the regulations can give rise to a bad faith claim by the policyholder.
When the spotlight is on them during times of well-publicized disasters, most carriers responsibly adjust their policyholders’ claims. However, there are always exceptions, and policyholders should not hesitate to seek legal assistance at any stage of the process in order to protect their rights.
Conflict Waivers, Mediation Waivers, New Rules – Oh My!
On October 11, 2018, Stephen L. Raucher was one of the panelists who presented a continuing legal education program entitled “Conflict Waivers, Mediation Waivers – Oh My! Avoiding Ethical Traps Triggered By Recent Developments Under California Law.” The program examined and discussed the ramifications of a recent California Supreme Court opinion regarding conflict waivers as well as new legislation affecting mediation waivers.
Sheppard Mullin v. J-M Manufacturing Co., Inc.
6 Cal.5th 59 (2018) (attorney conflicts) (amicus counsel)
Conflict Waiver Enforceability and the Duty of Loyalty
Conflict Waiver Enforceability and the Duty of Loyalty
Conflict Waiver Enforceability and the Duty of Loyalty
RRB’s Stephen Raucher’s article Conflict Waiver Enforceability and the Duty of Loyalty is published in the Los Angeles Daily Journal on September 28, 2018.
Stephen L. Raucher Quoted in Los Angeles Daily Journal on Conflict Waivers Case
Reuben Raucher & Blum attorney Stephen L. Raucher is quoted in the August 31, 2018 Los Angeles Daily Journal regarding the California Supreme Court’s ruling in Sheppard Mullin v. J-M Manufacturing. The state high court upheld an appellate court decision that broad attorney conflict waivers that fail to disclose known conflicts of interest are unenforceable.
State High Court Soon To Decide Conflict Waivers Case
State High Court Soon To Decide Conflict Waivers Case
RRB’s Stephen Raucher’s article State High Court Soon to Decide Conflict Waivers Case is published in the Los Angeles Daily Journal on August 9, 2018.
State High Court Soon To Decide Conflict Waivers Case
Stephen L. Raucher Co-Authors Insurance Update for the Fifth Straight Year
Insurance Law is published by the State Bar Litigation Section in its California Litigation Review (2017 Edition), co-authored by RRB attorney Stephen L. Raucher, along with Michael Sohigian, who have provided insurance updates together for the fifth consecutive year.
Stephen Raucher on Daily Journal Podcast “Waiving in the Dark?”
Stephen Raucher joins a panel of amicus attorneys for episode 102 of the Daily Journal’s podcast entitled “Waiving in the Dark?” and weighs in on the potential ramifications of the California Supreme Court’s pending decision regarding advance conflict-of-interest waivers.
Fourth Annual Update On Developments In Insurance
On Monday, April 16, 2018, Stephen L. Raucher was one of the panelists presenting a continuing legal education program entitled “Fourth Annual Update on Developments in Insurance.” The program examined the most important new cases from 2017 regarding insurance coverage and bad faith, focusing particularly on liability and property policies.
2017 Developments In California Insurance Coverage Law
2017 Developments In California Insurance Coverage Law
Sanctions Under Section 128.5 Must Comply With 21-Day Safe Harbor Provision
In Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 2018 Cal. App. LEXIS 81, the California Court of Appeal, Second Appellate District, Division 7, was asked to interpret Code of Civil Procedure Section 128.5(f), which governs the procedure applicable to motions for sanctions for bad faith actions or tactics. The court held that under the version of Section 128.5(f) in effect from January 1, 2015 to August 7, 2017, a 21-day safe harbor waiting period applied to such motions for sanctions. This is in contrast to the holding in San Diegans for Open Government v. San Diego (2016) 246 Cal. App.4th 1306, 1317, which held: “[A] party filing a sanctions motion under Section 128.5 does not need comply with the safe harbor waiting period described in Section 128.7, subdivision (c)(1).”
Section 128.5(a) authorizes a trial court to order a party, the party’s attorney, or both to pay reasonable expenses, including attorney fees, incurred as a result of bad faith actions that are frivolous or solely intended to cause unnecessary delay. Former subdivision (f) was in effect from January 1, 2015 to August 7, 2017. It provided: “Any sanctions imposed pursuant to this section shall be imposed consistently with the standards, conditions, and procedures set forth in subdivisions (c), (d), and (h) of Section 128.7.” Section 128.7 governs misconduct in the filing or advocacy of groundless claims in signed pleadings and other papers. Under Section 128.7(c)(1), service of the motion for sanctions initiates a 21-day safe harbor period, patterned after Federal Rule of Civil Procedure 11. During this time, the offending document may be corrected or withdrawn without penalty, and the motion for sanctions cannot be filed. San Diegans for Open Government found that motions for sanctions under Section 128.5 did not need to comply with the safe harbor provision. This had the effect of allowing parties to request sanctions as part of their moving or opposition papers, in a throwback to the process in California prior to adoption of Section 128.7 and its safe harbor provision.
In Nutrition Development, as part of its demurrer, the defendant argued that the plaintiff’s assertion of frivolous claims and bad faith conduct warranted imposition of sanctions pursuant to Sections 128.5 and 128.7. The court sustained the demurrer and dismissed the case but denied the request for sanctions. The court indicated that the defendant could choose to file a separate motion for sanctions. The defendant did so, but the motion was denied pursuant to the safe harbor rule on January 9, 2017. The defendant appealed.
Meanwhile, in August 2017, the Legislature amended Section 128.5 to include subdivision (f)(1)(B), which contains an explicit 21-day safe harbor period. The Nutrition Development court stated that this amendment confirmed the Legislature’s intent to include a safe harbor provision in former subdivision (f) and “abrogate several of the holdings under San Diegans for Open Government.” The court in Nutrition Development explicitly disagreed with the holding in San Diegans for Open Government and found the plain meaning and obvious intent of the Legislature in Section 128.5 prior to the August amendment was to incorporate the Section 128.7 safe harbor provision by cross-reference. Accordingly, the court affirmed the denial of sanctions.
Given the clear intent to incorporate the safe harbor requirement as stated in the new version of Section 128.5(f), the effect of the holding in Nutrition Development will be limited to sanctions orders issued under the prior version of the law without compliance with the safe harbor rule in reliance on San Diegans for Open Government. How many such orders are or will be subject to appeal — and whether the California Supreme Court will be asked to resolve the split of opinion on this now mostly moot issue — remains to be seen.
Author’s Note: In CPF Vaseo Associates, LLC v. Gray, 29 Cal. App. 5th 997 (2018) (filed December 6, 2018), the Fourth Appellate District reversed its decision in San Diegans for Open Government in favor of the holding and reasoning in Nutrition Distribution. Accordingly, there is no longer a conflict between the Fourth and Second Appellate Districts on this issue.