Thursday, July 20, 2017

Noncumulation Clause Results in “All Sums” Allocation for Long-Tail Environmental Liabilities

Originally published by Kevin Merriman.

By David M. Knapp, Ward Greenberg Heller & Reidy LLP

Applying the New York Court of Appeal’s landmark Viking Pump decision for the first time, the Second Circuit recently held that an “all sums” allocation applied to policies issued to Olin Corporation by OneBeacon American Insurance Company in a long-tail environmental coverage dispute. Olin Corp. v. OneBeacon A. Ins. Co., 2017 U.S. App. LEXIS 12939 (2d Cir. July 18, 2017). In accordance with Viking Pump, the Second Circuit held that an “all sums” allocation must be applied, because the policies contained the following noncumulation and continuing coverage provisions (“Condition C”):

It is agreed that if any loss covered hereunder is also covered in whole or in part under any other excess policy issued to the Insured prior to the inception date hereof, the limit of liability hereon . . . shall be reduced by any amounts due to the Insured on account of such loss under such prior  insurance.

Subject to the foregoing paragraph and to all other terms and conditions of this Policy in the event that personal injury or property damage arising out of an occurrence covered hereunder is continuing at the time of termination of this Policy, [OneBeacon] will continue to protect the Insured for liability in respect of such personal injury or property damage without payment of additional premium.

Id. at *9. According to the Court, “Condition C permits an insured to pursue full recovery from any insurer in its program whose policy covers the relevant loss and contains Condition C irrespective of whether the insurer’s policy was issued at the beginning, in the middle, or towards the end of the continuing occurrence.” Id. at *45.

The court also held that the noncumulation provision of Condition C also has the effect of reducing the limits of a triggered policy by the amount of coverage afforded under any policy within the same layer of coverage for a prior year. Id. at *46 (“This provision allows the insurer to offset its indemnification obligations by amounts already paid to cover the loss by another insurer in the same coverage tier.”). However, the Court noted that it would be the insurer’s burden to “prove its entitlement under this contractual provision.” Id. at *47.

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Client Development: Have You Learned How To…?

Originally published by Cordell Parvin.

Wow, this is my last post from San Miguel de Allende. Tomorrow I will meet with Martha from 11:00 to 1:00. Then a car will pick me up and take me to a Leon Airport hotel. On Saturday, I will catch a 6:00 AM flight and I’ll be home before 9:00.

Have I learned Spanish in four weeks? No, I wouldn’t be able to tell you about anything I did in the past or anything I will do in the future, as I only know the present tense of verbs. Also, my son-in-law (yerno en espaƱol) will tell me I still speak Spanish like a gringo. It’s going to take a lot of listening and speaking out loud to hopefully one-day pronounce words and sentences correctly.

But, there is hope. While here, I decided to research why Selena was so popular. I found a website, 20 Reasons Selena Quintanilla Will Never Be Forgotten. There, I discovered that when she died. thousands of her fans remember what they were doing, like those of us who were alive when President Kennedy was assassinated.

More importantly, I learned: Selena didn’t actually speak Spanish at the beginning of her career. Her father, Abraham Quintanilla taught her to sing in Spanish — learning lyrics phonetically — so she could resonate with the Latino community.

I have the video of her last concert from the Houston Astrodome on my iPad. Her Spanish, including, pronunciation es excelente. So,…maybe there’s hope for me.

Ok, enough about me. let’s focus on you. While here learning, I’ve been thinking about your learning.

Have you learned how to:

  1. Create a Business Plan?
  2. Determine goals that will challenge and stretch you?
  3. Determine what activities to undertake to meet your goals?
  4. Find articles and other materials about your clients’ industries and their company?
  5. To write articles, blog posts and guides and give presentations and webinars that will enhance your reputation and increase your chances of getting hired?
  6. Develop a Focused Contacts Plan so you focus on your best contacts?
  7. Determine what your clients want and expect?
  8. Get business without appearing to be needy or greedy?
  9. Build trust and rapport?
  10. Become more client focused?
  11. Hold yourself accountable?
  12. Develop the young lawyers on your team, so they can be trusted by your clients?

Here is a short clip from the video coaching program I created for lawyers.

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Trademark Registration Can Help You Grow Your Brand and Company

Originally published by Klemchuk LLP.

Many brand owners, entrepreneurs, and company executives underestimate the value of trademark registration.  Trademarks can play an important role in growing your brand or company […]

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Indemnification Agreements – The Basics

Originally published by Klemchuk LLP.

Indemnification agreements create a express contractual obligations for one party to protect another party from loss or injury.  41 Am. Jur. 2d Indemnity § 1. […]

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Is Unauthorized Construction/Demolition Performed by a Tenant Covered Damage Under a First-Party Property Policy?

Originally published by Kevin Pollack.

If a homeowner agrees to sell a home, and as part of the sale agreement allows the prospective buyer to: (1) lease the property before escrow is closed, and (2) make certain improvements to the property with the owner’s permission, but then, after taking possession during the lease, the prospective buyer tears the property down…… Continue Reading

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Wonder Woman

Originally published by The Movie Court.

The Movie Snob gets to the party late.

Wonder Woman  (B).  This movie has been riding high at the box office, so everyone who’s going to see it has probably already done so.  Anyhoo, I finally got around to seeing it, and I liked it just fine.  The plot struck me as kind of wacky–the Greek god of war Ares is supposedly a real being (god?) and he is out there on the loose stoking mankind’s warlike passions.  The Amazons are hiding out on some paradisiacal Mediterranean island, but when American WWI pilot Steve Trevor (Chris Pine, Into the Woods) crash lands just off shore and brings tidings of the carnage of total warfare, beautiful Amazon princess Diana (Gal Gadot, Batman v. Superman) decides she must leave the island with him so she can track down and kill Ares.  There is some amusing fish-out-of-water stuff as Diana makes her way through old-fashioned WWI-era London.  Then there are some mean Germans that Steve and Diana have to confront (at the front) in the final reel.  All in all, this is a perfectly competent and enjoyable superhero movie, and it didn’t even feel long at 2 hours and 21 minutes.  And I must say that Gal Gadot is, like, supernaturally beautiful in the role of Wonder Woman.  I certainly noticed her in her small role in Batman v. Superman, but here she just owns the screen.  If I were caught up in her magic lasso, I might even have to say she’s more beautiful than Nicole Kidman.

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Religious reference not reversible.

Originally published by David Coale.

Abdul Khan had a dispute with a contractor about the design of a stone medallion for the foyer for his new home. The dispute went to trial and the following Q-and-A occurred during examination of a witness for the contractor:

Q. Okay. And did you have a conversation with them about whether or not you could duplicate one of those medallions?

A. Yes, and I repeated that — They — They repeated to me that this was only a design that they were interested in because they did not want cherubims and angels because — what I surmised by that was for religious readons and —

[Khan’s counsel] Objection; relevance.

THE COURT: Sustained.

Khan argued that this exchange was an attempt to appeal to religious prejudice by identifying him as a Muslin. The Fifth Court agreed that the comment was improper, as “[c]ourts in this state have long recognized that a person’s religious beliefs have no place in determining the merits of a dispute,” but found that “[t]his single reference to Khan’s religion was not extreme” as to amount to incurable error. Khan v. The Chai Road, Inc., No. 05-16-00346-CV (July 17, 2017) (mem. op.)

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