Insurance Coverage Advice and Litigation (Business, Construction, Employment, Environmental and Product Liability)
Gauntlett & Associates is a trailblazer with attorneys who have set precedent throughout the United States compelling insurance companies to pay client legal expenses incurred in defending employment, environmental and product liability lawsuits.
Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904 (N.D. Cal. (S.F. Div.) 2011) aff'd, 11-16052, 2012 WL 5385598 (9th Cir. Nov. 5, 2012), reh'g denied Nov. 27, 2012.
Ninth Circuit Affirms Ruling Concluding That Implicit Disparagement Arises Despite Absence of Express Allegations Denigrating Another's Products
The Ninth Circuit Court of Appeal, in a Memorandum decision, Michael Taylor Designs, Inc. v. Travelers Property Cas. Co. of America, No. 11-16052, 2012 WL 5385598 (9th Cir. (Cal.) Nov. 05, 2012), affirmed Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904 (N.D. Cal. (S.F. Div.) 2011).
The key aspect of the Ninth Circuit's Opinion Memorandum was its statement that:
Here, Rosequist's original complaint alleged Taylor's showroom salesmen made statements to Taylor's customers that falsely implied Rosequist's high-end wicker chairs were of poor quality, and this allegation made it conceivable that Rosequist could state a claim for trade libel. See, e.g., [Travelers Prop. Cas. Co. of Am. v. Charlotte Russe Holding, Inc., 144 Cal. Rptr. 3d 12, 20-22 (2012), reh'g denied (July 31, 2012), rev'w denied (Sept. 21, 2012)] (holding a complaint alleging the insured made statements that could give the false impression that the plaintiff's goods were of inferior quality triggered an insurer's duty to defend its insured against allegations of trade libel) (emphasis added).
[Memorandum, Case No. 11-16052, p.3, Docket 49-1]
This ruling arose despite the absence of "express allegations of tarnishment through use of material photographs of actual furniture that steered [consumers] to cheap synthetic knock-offs." Statements falsely implying that the claimant's goods were of poor quality implicitly disparaged the claimant by denigrating the claimant.
The court's analysis is consistent with a narrow reading of Charlotte Russe's facts when analyzed in light of three key coverage propositions it adopted: (1) the potential for coverage includes the potential for amendment to state a covered claim; see Scottsdale Ins. Co. v. MV Transp., 36 Cal. 4th 643, 654 (Cal. 2005); (2) the "disparagement" offense is not limited to the specific elements for proof of claims for trade libel or product disparagement; and (3) implicit disparagement is based on how the claimant believed those who heard the statements would effect their views of its products.
State of California v. Allstate Insurance Company, 90 Cal. Rptr. 3d. 1 (2009) (Environmental) (Gauntlett & Associates, David A. Gauntlett for United Policyholders, Consumer Federation of America and Center for Community Action & Environment as Amici Curiae on behalf of Plaintiff and Appellant.) (Judge Werdegar, speaking for a unanimous court, held that: "the relevant discharged with escape of waste from evaporation ponds on the site" and "intentional release of waste to mitigate damage was not excluded from coverage on basis that it was not accidental." "[The] state was entitled to indemnity if it could show that sudden and accidental releases of waste were proximate causes of damage, disapproving Golden Eagle Refinery Co. v. Associated Internat. Ins. Co., 85 Cal.App.4th 1300, 102 Cal.Rptr.2d 834 and Lockheed Martin Corp. v. Continental Ins. Co., 134 Cal.App.4th 187, 35 Cal.Rptr.3d 799." Fact issues remained as to whether the water course exclusion applied to indemnity claims and whether the release of waste was accidental.)
State of California v. Continental Ins. Co., 88 Cal. Rptr. 3d 288 (Cal. Ct. App. (4th. Dist.) 2009) (Environmental) (In case involving cleanup of hazardous waste site, state may recover beyond limits of any one liability insurance policy period.) David A. Gauntlett and James A. Lowe for the Center for Community Action & Environmental Justice and United Policyholders as Amici Curiae on behalf of Plaintiff, Cross-Defendant, and Appellant.
Estate of Gary W. Parker v. AIG Life Ins., 317 F. Supp. 2d 1167 (C.D. Cal. 2004) (General Coverage) (The court, finding life insurance benefits due to the Estate of Dr. Gary Parker, who died while on a trip to Cuba on the central highway, found the insurer improperly denied policy benefits. This is because the insurer failed to investigate the claim properly and relied on faulty evidence to suggest that the central highway was "not a freeway," even though it was the largest central access road in Cuba and had no toll road portions. The court suggested that the insurer had sought evidence to defeat, not to support, a claim in a manner contrary to California law.).
Arrow Electronics, Inc. v. Federal Ins. Co., Superior Ct. at Waterbury, Conn., Case No. X01 CV 00-0167080-S (2004) (Environmental / Property Damage) (Gauntlett & Associates resolved environmental pollution insurance coverage case, involving multiple jurisdictions' insurance laws, on terms favorable to insured.).
Anthem Electronics, Inc. v. Pacific Employers Ins. Co., 302 F.3d 1049 (9th Cir. (Cal.) 2002) (Product Liability/"Loss Of Use" "Property Damage") (The court found a duty to defend for alleged defects when products were installed in a third party's scanning system and failed in service. The possibility that these defects were unexpected triggered a defense. "Property damage" was implicated because KLA's customers lost the use of tangible property (the scanners), and suffered losses for the cost of loaner scanners and diminished receivables when a board controlling the scanners failed on the production line of the customer to which Anthem sold its motherboard component.).
Lockheed Corp. adv. Procter, et al., Superior Ct. of Cal., County of Santa Clara, Case No. 731752 (Environmental/Property Damage Pollution Coverage) (Expert/Consultant) (Gauntlett & Associates analyzed the work of other retained coverage counsel and made recommendations regarding settlement.)
Panda Management Co., Inc. v. Wausau Underwriters Ins. Co., 62 Cal. App. 4th 992 (1998), depub., 1998 Cal. LEXIS 4376 (July 8, 1998) (Environmental Coverage/Property Damage) (The court depublished a ruling that found that the "absolute pollution" exclusion extended to disposal of cooking oil into Panda's kitchen drains. Consistent with the logic of this depublication, it can be surmised that while the discharge or release of water, waste grease and cooking oils into the internal sewer system might be found to be pollution if that system were linked directly to the bay when not subject to a water treatment facility, the conduct did not make those items a pollutant in the context of their discharge into a treated sewer system.).
Smith Kandal Real Estate v. Continental Casualty Co., 67 Cal. App. 4th 406 (1998) (General Coverage) (Smith Kandal, a real estate broker, was sued by its clients for improperly structuring a real estate transaction and causing them to lose tax benefits, which did not trigger the policy's exclusions from coverage. The court found that the exclusions were ambiguous and may be properly interpreted to trigger a defense duty. While plainly barring one of the insureds, other insureds who sought recovery were not barred. The court found that "the phrase ‘activities performed on behalf of Ventana Ranch' [was] reasonably susceptible to the interpretation that, although claims against Smith Kandal based on malfeasance as Ventana Ranch's broker are excluded, claims against Smith Kandal for actions it performs on behalf of persons other than Ventana Ranch are not excluded even though the property involved in the transaction is a Ventana Ranch home." Id. at 420-21.).