Category Archives: Accident Litigation

WHAT’S A TORT??? AND IS IT COVERED BY A BUSINESS INSURANCE POLICY: COVERAGES UNDER PART A and PART B OF A CGL POLICY

Most business’ have insurance to protect against potential claims against them. Typical business coverage includes property and casualty, commercial general liability insurance (“CGL”), workers’ compensation, professional liability (“E&O”) and commercial automobile insurance. More specialized insurance available includes employment practices liability insurance (“EPLI”) and insurance against patent and trademark infringement. These policies are intended to apply to either basic, known business risks (such as loss of a commercial building or liability from a car accident) or are tailored to specific risks (such as EPLI). But what about business tort claims?  Most business’s have liability insurance. So what is covered?  Most are covered under the CGL portion.

Most Commercial General Liability policies have two types of coverage: Part A and Part B.

Part A provides insurance against two types of injuries: “bodily injury” and “property damage,” but only if arising from an “accident” or “occurrence.” CGL policies protect against claims arising from accidental or fortuitous events called “occurrences.”  The term “bodily injury,” as defined in an insurance policy, includes physical injury to the body.  Coverage does not always apply to non-physical emotional or mental harm caused by an employee of the insured.  A CGL policy covers physical damage caused to the property of third parties by the insured as well.

Coverage Part A only includes actions involving “accidents” or “occurrences,” business torts based on a negligence theory are potentially coverable.  However, business torts arising from intentional acts are typically not covered.   In these situation coverage may exist for negligent misrepresentation, negligently performed faulty workmanship, employment actions sounding in negligence (negligent hiring, negligent retention, negligent supervision) and other negligence causes of action (failure to warn, unsafe premises and negligent procedure).

Different from Coverage Part A, Coverage Part B does not depend on the existence of an “accident” or “occurrence,” so it may cover damages arising from intentional conduct not otherwise excluded. While the insuring clause of Coverage Part A is expressed in general terms, Coverage Part B covers only specific listed acts committed by the insured.  Some examples of such enumerated acts may include false imprisonment, malicious prosecution, wrongful eviction, defamation, invasion of the right to privacy and copyright and trademark infringement.

It is also possible that there may be Coverage under Part B for liability arising from the insured’s “advertising activity.”  “Advertising activity” has been found in cases of TV, radio, newspaper and magazine advertising.   But not all marketing activities constitute “advertising.” There must be a causal connection between the advertising activity and the injury.  The sale of an infringing product by itself is not sufficient to satisfy the causal connection requirement. The infringement must be committed in the advertisement on its face, and not just in the sale of a product, in order to be covered.

Every business owner should review their insurance coverage’s a broker and attorney to determine whether it has sufficient coverage not only for the typical risks that the company may face, but also for the unexpected, claims for business torts that sometimes happen.

WHAT DO THESE COVERAGES MEAN FOR DEFENDANTS?

Many attorneys and clients think of every tort claim as personal injury action.  But for purposes of insurance coverage, many tort actions arising from an automobile collision, a slip-and-fall, a product liability claim or a defective construction suit are matters of bodily injury and fall under Coverage A of the standard commercial general liability (CGL) policy purchased by most businesses.   Most of the litigation concerns Coverage for bodily injury.   Coverage under Part B usually pertains to personal and advertising injury liability and is often overlooked when seeking coverage under a business policy.

Although obtaining insurance under Coverage B requires more diligence by a policyholder or counsel for defendants seeking coverage, it can provide important protection, including a defense against a plaintiff’s claim.  If one claim in a complaint is possibly covered, the CGL insurer must defend the entire case.  It was this aspect of insurance law that enabled Los Angeles Lakers owner Dr. Jerry Buss to obtain an entire defense of what was largely a business/contract dispute (26 of the claims in the complaint); something ordinarily not covered under a standard form CGL policy. But a 27th claim for defamation implicated the personal injury provisions of the policy, and Buss received a complete defense to the suit (which eventually settled) that involved more than $1 million in counsel fees. The insurer sought reimbursement for the defense costs that did not involve the defamation claim. In Buss v. Superior Court, 939 P.2d 766 (Cal. 1997), the California Supreme Court stated that insurers had this right, provided they could adequately differentiate what was spent defending the respective claims, a position dividing the jurisdictions and rejected by the Supreme Courts of Illinois and Pennsylvania.1 Even if Nevada should eventually follow the Buss approach,2 a policyholder can benefit in this type of situation by at least obtaining an insurer-provided defense and delay its ultimate payment of some portion of counsel fees.

In practicality, it would be difficult to correctly separate attorneys fees spent on a covered claim versus one that is not covered.  Under the California approach, the insurer defending the claim is forced to pay for the entire defense. Thus, a defendant faced with a lawsuit that looks like a commercial dispute without bodily injury or tangible, physical property damage and therefore what looks like no CGL policy show look for an allegation such as trespassing, defamation or misleading advertising claims that could trigger Coverage B.  The policy states that the CGL insurer will pay “those sums that the insured becomes legally obligated to pay” as damages, because of “personal and advertising injury” to which the following applies:

 

  1. False arrest, detention or imprisonment;
  2. Malicious prosecution;
  3. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;
  4. Oral or written publication, in any manner, of materials that slanders or libels a person or organization or services;
  5. Oral or written publication, in any manner, of material copyright, trade dress or slogan in your advertisement. as a “notice that is broadcast or published to the general public or your goods, products or services for the purpose of attracting customers or supporters.”

It includes notices published on the internet “or on similar electronic means of communication,” but as regards websites, “only that part of a website” that purpose of attracting customers or supporters” is considered an

advertisement.  Unfortunately, the following are examples of the long list of exclusions stating that Coverage B “does not apply to:”

  1. Knowing Violation of the Rights of Another
  2. Material Published With Knowledge of Falsity
  3. Material Published Prior to the Policy Period
  4. Criminal Acts
  5. Contractual Liability
  6. Breach of Contract
  7. Quality Or Performance of Goods–Failure to Conform to Statements
  8. Wrong Description of Prices
  9. Infringement of Copyright, Patent, Trademark or Trade Secret
  10. Insured’s in Media and Internet Type Business
  11. Electronic Chartrooms or Bulletin Boards
  12. Unauthorized Use of Another’s Name Or Product
  13. Pollution
  14. Pollution-Related [Matters]
  15. War
  16. Distribution of Material in Violation of Statutes

These provisions are exclusions that remove otherwise applicable coverages, therefore, the exclusions are construed narrowly and strictly against the insurer.  The insurer will bear the burden of persuasion to show the particular exclusion applies.  When exclusion is unclear and cannot be clarified by the facts, it is resolved against the author/ drafter of the policy, which is generally the insurer.   Many of the listed exclusions have been found by courts to be sufficiently clear most of the time and thus make for a situation in which personal and advertising injury coverage has relatively limited scope and use for policyholders when compared to the more prevalent bodily injury coverage.

A fairly accurate summary is that Coverage B applies where a policyholder is accused of negligently or recklessly disparaging a claimant or defaming a plaintiff (defamation that it not within an exclusion) or misleading advertising (such as causing consumer confusion, or hurting a competitor) that does not involve copyright or patent infringement. The Nevada Supreme Court law on Coverage B is limited. I only know one insurance coverage case regarding “advertising injury,” and that is dicta.    A hand full of District of Nevada federal court opinions mention the term.   The substantive local precedent that exists has tended to support insurer efforts to limit coverage and is adverse to Plaintiffs.   Mention of personal injury in case law is much more extensive, but in these decisions, the court is almost always referring to bodily injury rather than the insurance policy concept of personal injury coverage. When instituting litigation, under a business policy, counsel should always review all the defendant’s liability insurance policies and consider coverage under the obscure concepts of personal injury to ascertain if there is a loss that will be covered for their client.

 

 

Resources:   https://www.amazon.com/General-Liability-Insurance-Coverage-Issues/dp/1506140203

 

https://www.irmi.com/articles/expert-commentary/no-harm-no-coverage-personal-and-advertising-  injury-liability-coverage-in-the-cgl-(part-1)

 

http://www.iii.org/article/commercial-general-liability-insurance

 

http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1188&context=facpub

 

http://www.roughnotes.com/rnmagazine/search/commercial_lines/02_08p34.htm

 

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1424&context=yjreg

 

 

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The Weather Wrecked My Car

BAD WEATHER/ BAD DAY – WHAT IF A TREE FALLS ON MY CAR OR IN MY YARD OR BAD WEATHER CAUSES A CAR ACCIDENT

Bad weather can cause more than a bad hair day or a dirty car. Strong winds, heavy rains and blowing debris can cause trees to fall and roads to become unsafe causing accidents to happen. When conditions are less than ideal, accidents occur. The most common cause of vehicle related accidents due to weather is a loss of traction. When weather conditions become inclement and the roads become wet, muddy and sandy, vehicle traction is reduced and cars have a significantly increased chance of slipping and losing control. The best way to reduce your chance of losing traction on wet roads and in windy weather conditions is to drive slower and more smoothly. Try not to follow cars too closely and avoid jamming on the gas and brakes or making sudden and violent maneuvers with the steering wheel. The best way to think of this is if you had to cross a wet floor or a skating ring in your tennis shoes, you would tread in a slow and controlled manner and very carefully.  Use those principles when driving in windy and wet road conditions.

The best option is always to try and stay home in bad weather. Unfortunately, today’s reality just does not allow for that.  Work, school activities and responsibilities take us out on the roads in bad weather.  When you cannot avoid taking the risk, there is some important information that you should know if you are involved in an accident due to the loss of traction because of wet, muddy, snowy or icy roads in Henderson Nevada or if you are involved in an accident or cause property damage as a result of bad weather due to falling trees or debris as a result of bad weather in Henderson Nevada.

Rain And Accidents

I’ll take these topics in two sections.

First what if I lose control of my car due to bad weather

If you find your car starting to skid or lose traction or what we call “hydroplane” on wet roads, don’t panic.  Hydroplaning is when a layer of water prevents direct contact between your tires and the road. Take your foot off the gas and look in front of the vehicle.  Look where you want to go and gently and carefully steer the vehicle in that direction.  Apply very light brake pressure only if it is needed. Once the vehicle is traveling in the direction that you intend to go, you can lightly apply the gas as you regain control. This is a difficult driving situation and your skill will improve with experience.  If it is possible, it is best to learn these skills by practicing in a parking lot that is empty and the conditions are controlled.  I would recommend having an experienced driver teach you how to recover from a skid.  The most important thing to remember in these situations is not to panic and look in front of the vehicle and continue to steer the vehicle where you want to go.

Drivers sometimes have a natural inclination to look at objects they don’t want to hit and steer towards them and end up hitting the objects instead of maintaining their path. If you are able to continue looking where you want to go when you’ve lost control of a moving vehicle, you will be better able to regain control.  It is possible to regain control of the vehicle. However, if an accident occurs as a result of bad weather conditions in Henderson Nevada, the most important thing in any accident that occurs for any reason is to make sure that everyone in your vehicle is OK.  You should immediately call 911 to reach police and emergency medical personnel after any accident. Regardless of whether or not anyone appears severely injured, emergency personnel should be summoned to the scene.  Head injuries or internal injuries often cannot be observed immediately, and medical personnel are trained to detect these life-threatening injuries.  It is important not to panic, but to be calm and controlled and assist others.  Speak clearly when contacting emergency personnel to give them your location and the information that they need.

People often ask who pays for my damages if I am the only one involved in the accident

If you are the only car involved in the accident, you should call your insurance company as soon as you have arrived at safety and the parties in your vehicle have been treated and are safe. Use your cell phone to take pictures of your vehicle, the roadway and the surrounding areas. You will have to make a claim for the damage to your vehicle on your collision insurance. Unfortunately, you will be responsible for your deductible even though bad weather conditions caused you to lose control of your car.  An experienced attorney can help you fully recover your vehicle damage, and often there is coverage available for your injuries.  With 8 years experience working for insurance companies, and the past 8 years spent helping victims of accidents recover their property damage and money for their injuries, I can help you if you have an accident as a result of bad weather conditions.

If a Tree Falls on My House or Car, Am I Covered?

Sometimes it takes just one good storm to topple what was once a sturdy tree in your yard or at a business. Once the storm is over, a lawyer can assist you to determine which insurance will help pay for the cost of removing the branches and repairing damage if the tree fell on your home or car.

Whether your homeowners insurance policy includes coverage for fallen trees typically depends on a number of factors, such as what caused the tree to fall and what kind of damage resulted. Which coverage will cover your car will depend on whose tree fell on your vehicle and why.

Here are answers to some frequently asked questions about trees and insurance.

If the tree was otherwise healthy and toppled due to wind, a typical homeowners insurance policy will likely pay to repair damage to your home or other structure on your property, the Insurance Information Institute (III) says.  Be aware of deductibles.

Q: If a tree falls on my own property, will my own homeowner’s policy pay the damages?

A: This question depends on the facts.  A homeowner’s insurance policy generally protects your home against stated causes of loss, defined as perils. “Covered perils” are generally inclusive of wind damage.  Therefore, the reason that the tree to fell is important. If the tree was in good condition at the time of the storm and fell due to wind, a standard homeowner’s insurance policy will likely cover the damages to your home or other structure on your property, the Insurance Information Institute (III) says.

If the tree was rotting before the accident, the homeowners insurance usually won’t cover the damage because they will claim it is a maintenance issue. If you have sustained a large loss and the insurance company claims it is a maintenance issue, you should call a lawyer before the tree is removed and take a large number of photos of the downed tree including roots.

Q: What if my tree fell on my neighbor’s car?

A: Generally, the owner of the fallen tree is not responsible for the damage unless he negligently maintained the tree.  If your tree falls on your neighbor’s vehicle, your neighbor’s vehicle auto insurance should pay the claim if your neighbor carries comprehensive coverage. If your neighbor’s tree falls on your car, your comprehensive coverage applies.

Q: What happens if the tree was on someone else’s property?

A: If you have damage because of someone else’s tree, the Insurance Information Institute (III) states your homeowners insurance will likely cover the damage to covered property.

 

Q: Am I responsible if my tree falls on my neighbor’s property?

A: You are only responsible if the tree was negligently maintained usually meaning rotting and not previously removed.  That would make you a contributing factor to the tree falling down and negligent.  Otherwise, your neighbor will have to file a claim through their own insurance.

Q: Does homeowners’ insurance cover removing tree after it has fallen?

  1. Usually, only if the tree damaged property. If the tree fell without causing damage to a structure on your property, insurance won’t likely cover the cost of removing the debris. Insurance Information Institute (III) says.
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Legal Guidance Can Help You Feel Confident About Your Accident Case

Your truck accident was probably caused by a rare situation. However, when the consequences of the accident are life changing, the assistance of a Las Vegas accident attorney can help protect your rights so you can start rebuilding your life. Continue reading

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After an Accident, Determine Your Legal Options

Understanding the process of making a claim for compensation may seem daunting when you’ve been through an accident. However, the process can be simplified and the legal system may bring you the compensation you need to pay your bills. Continue reading

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Learn How Comparative Negligence Affects Your Car Accident Case

Anyone who has been involved in a car accident in Las Vegas will need to understand the Comparative Negligence rule for these types of cases. This rule may affect the amount of compensation you are entitled to for your losses. Continue reading

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Knowing What to Do After a Car Accident Is Important

How you react right after a car accident will have a significant effect on your claim. It is important to know what to do when an accident happens. Continue reading

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Car Accident Liability in Nevada When You are Partly at Fault

If you are partly at fault in a Nevada car accident, you may still be able to recover if your fault is less than 50 percent. Continue reading

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When to Contact an Accident Attorney

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Following a car accident, you may only need to involve the police and your insurance company. However, any of these red flags should send you toward a car accident attorney.

Signs You Need to Contact an Accident Attorney

Sometimes, you’ll need the help of an attorney to protect your rights and your assets after a car accident. Always notify the police and your insurance company as soon as accident occurs, and make sure you get the other driver’s information, including the name of their insurance company. After that, what happens largely depends on how bad the accident was. If your experience matches any of the situations below, you should contact a car accident lawyer Las Vegas right away.

Injuries Often Spell the Need for an Attorney

Injuries, especially serious ones, often lead to the largest accident-related settlements, and they can make the post-accident process far more complicated. A good accident attorney can guide you through all of the things that will happen following such an accident, regardless of whether the injured person was in your vehicle or the other one.

If permanent injury or disability, hospitalization, or death is a result of the accident, the need to get an attorney involved is much more pressing.

An Attorney Can Address Issues with Your Insurance Company

If your insurance company has involved their own attorney in the accident follow-up, you may want to retain an attorney to represent your interests. This is especially important if your insurance company communicates any doubts about the active status of your policy or is behaving in a way that you think is unreasonable or strange.

An excellent accident attorney can help you if you’re concerned that your insurance company is acting in bad faith. They can also provide insight into settlement values. While settlements often depend on factors that vary from accident to accident, an experienced attorney can provide you with best and worst case scenarios.

If you’ve been involved in an accident with injuries, you may want to contact a car accident attorney to secure the best possible outcome, especially if you have concerns about your insurance company.

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Accidents Happen and a Personal Injury Lawyer Can Help Get You Through

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Car accidents are one of the biggest causes of injury in America. When you are not at fault, a personal injury lawyer can help you make sure you are rightfully compensated for your pain.

Understanding When You Need a Personal Injury Lawyer

Out of all of the unintentional injury deaths in America each year, 33,804 are from motor vehicle accidents. As the fourth highest cause of death among people every year, this number is terrifying. It proves that a car accident can happen to anyone at any time.

The scary part about being in a car accident is that it is not always your fault. Car accidents have so many possible causes that you never know when one is going to happen. Yet, most car accidents happen close to home.

Hiring a car accident lawyer in Las Vegas will help ensure that you get the treatment and help you need no matter what was damaged in the accident.

Property Damage

Your car often suffers the most damage in an accident. However, dealing with insurers and auto manufacturers can be difficult. A personal injury lawyer can help you determine what kind of help and compensation you are entitled to in the event that your car is damaged or totaled.

To do this, the lawyer will help determine who was at fault. Then, the lawyer will determine whether your insurance is trying to skirt the costs of repair. Both of these services can be of immense help.

Pain and Suffering

Lawyers know how to best prepare you to seek compensation for personal injuries. A lawyer can help you get the full reimbursement you deserve from both the insurance company and any other parties liable for the accident.

Lawyers Establish the Facts

No matter what happened, a personal injury lawyer can make your recovery easier by establishing the facts and helping you with the burden of dealing with all of the paperwork that comes with an automobile accident.

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Reasons Why You Should Not Omit Legal Counsel for A Dog Bite

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When you contact a dog bite accident attorney, you can increase your chances of receiving compensation for your injury.

Don’t Omit Legal Counsel for Your Dog Bite

Dogs can be ideal pets to have and are liked by most people. However, there are times when dogs are not as nice as they appear and will attack those whom they know or don’t know. When these situations occur, the dog bite victim can lose a significant amount of blood, limbs or die from their injury. The severity of dog bites may vary among victims, but the trauma is the same. The sudden attack of a dog can leave you fearful of any dog that is similar to the dog that bit you.

Don’t Forego Your Benefits

You may not want to cause any trouble regarding your dog bite injury, but you have to take into consideration your future discomfort. Some people may be able to recover from a dog bite within a short period of time, but if you have extensive wounds your level of care may be lengthy.

How an Attorney Can Help You

An attorney understands your apprehensions about being near dogs and knows that the recovery process requires various forms of medical treatment. That’s why it is important to seek assistance shortly after the incident. You may have already begun your medical treatment, and that’s good, but you should also seek counsel with an attorney so that you can receive the compensation you’re entitled to in order to cover medical expenses. You need to ensure that all of your injury expenses will be paid.

Contact an Attorney Today

There is no specific deadline in which you must submit a dog bite claim or file a lawsuit within the state of Nevada. However, the sooner you seek dog bite attorney Las Vegas representation, the sooner you will be able to collect compensation that you’re entitled to. Your recovery process can be better when you have legal support.

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