Author - Ravi R. Mehta

1
The New EPA Underground Storage Tank Regulations: A Compliance Primer
2
Significant Victory for the Building Industry: Liberty Mutual is Rejected Once Again, This Time by the Third Appellate District in Holding SB800 is the Exclusive Remedy
3
Distinguishing License Bonds From Insurance: The Contours of California Contractor License Bonds
4
Primary Defense Obligations Inescapable Despite Escape Clauses According to California Court of Appeal
5
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The New EPA Underground Storage Tank Regulations: A Compliance Primer

By: Richard Glucksman, Esq. and Ravi Mehta, Esq.
July 20, 2017

Published by AmWINS – Download Article

Background

Underground storage tanks (“USTs”) have long been used in a wide variety of residential, commercial, and industrial applications. UST regulations are intended to safeguard public health and safety, as well as reduce the economic impacts of a UST system failure. Most obviously, leaks in UST systems have the potential to contaminate the natural environment, and groundwater in particular, which is a significant source of drinking water.1  Additionally, UST regulations are designed to prevent damage, injury or death by combustion of stored material.

Congress began legislating the regulation of UST systems in 1984, and has since developed increasingly more comprehensive and robust regulations, with the most recent iteration established in 2015. These developments represent responses to advances in preventative technology, including leak detection and secondary containment, as well as changes in the substances being stored in UST systems. Further, congressional action on UST systems has been underscored by the goal of creating a more uniform set of regulations among state and local governments, as well as on tribal lands.2

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Significant Victory for the Building Industry: Liberty Mutual is Rejected Once Again, This Time by the Third Appellate District in Holding SB800 is the Exclusive Remedy

By: Richard H. Glucksman and Ravi R. Mehta
December 8, 2016

I. Elliott Homes, Inc. v. Superior Court (Certified for Publication, Cal. Ct. App. Dec. 2, 2016

The California Court of Appeal for the Third Appellate District recently elaborated on the scope of the Right to Repair Act, commonly known as SB-800 (“Act”).  In Elliott Homes, Inc. v. Superior Court of Sacramento County (Kevin Hicks, et al.) (certified for publication, Cal. Ct. App. Dec. 2, 2016), the Court considered whether the Act (and specifically the Act’s pre-litigation procedure) applies, when homeowners  plead construction defect claims based only on common law causes of action, as opposed to violations of the building standards set forth in the Act (Civil Code §896).  The Court answered this question affirmatively.

The homeowners of seventeen (17) single-family homes filed a Complaint against the builder of their homes, Elliott Homes, Inc. (“Elliott”), alleging common law causes of action for construction defects.  Elliott filed a motion to stay the litigation on the ground that the homeowners failed to comply with the pre-litigation procedure set forth in the Act.  The trial court denied the motion, agreeing with the homeowners that this pre-litigation procedure did not apply because the homeowners had not alleged a statutory violation of the Act.  Elliott appealed.  The Court of Appeal purely considered the question of whether the Act, including its pre-litigation procedure, applies when a homeowner pleads construction defect claims based on common law causes of action, and not on statutory violations of the Act’s building standards.

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Distinguishing License Bonds From Insurance: The Contours of California Contractor License Bonds

By: Ravi R. Mehta
September 30, 2016

A commonly overlooked potential for recovery when a claim arises is the license bond.  Distinct from insurance, a license bond is intended to respond to liability related to a contractor’s violation of Contractors State License law.  It is mandatory for all California contractors to procure a license bond, or alternatively to place a cash deposit with the Contractors State License Board (“CSLB”). The license bond requirement is currently $15,000.00.  However, in the event of license suspension or revocation, the CSLB may require a separate disciplinary bond in an amount between $15,000.00 and $150,000.00. The types of claims to which a license bond may be subject, as well as the types of persons who are eligible to submit a claim against a license bond, are limited.  However, if a claimant’s circumstances fit within the confines of the following limitations, a license bond claim may be better suited to provide redress as compared to an insurance claim.  The following list contains the most common types of allowable license bond claims.

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Primary Defense Obligations Inescapable Despite Escape Clauses According to California Court of Appeal

By: Ravi R. Mehta and Katherine J. Flores
May 10, 2016

In general, insurers are permitted to limit the risks they assume through provisions within the policy terms.  For example, many policies attempt to preclude coverage in instances where another insurance policy providing for defense is available to the insured. California courts generally disfavor these types of “other insurance” or “escape” clauses based on public policy concerns.  In two recent decisions, the California Court of Appeal found such clauses unenforceable.

In Underwriters of Interest Subscribing to Policy Number A15274001 v. ProBuilders Specialty Insurance, Co. (2015) 241 Cal.App.4th 721, Plaintiff, Underwriters of Interest Subscribing to Policy Number A15274001 (“Underwriters”), insured Pacific Trades Construction & Development, Inc. (“Pacific Trades”).  Additionally, ProBuilders Specialty Insurance Company (“ProBuilders”) insured Pacific Trades.

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The Transfer of Risk Through Express Indemnity does not Always Lessen Uncertainty when a Claim Arises

By: Daniel A. Cribbs and Ravi R. Mehta
November 30, 2014
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The transfer of risk through express indemnity does not always lessen uncertainty when a claim arises

Additional insured endorsements and express indemnity provisions are common risk transfer mechanisms, but they have generated uncommonly complex and difficult-to-reconcile judicial holdings. Litigation concerning priority-of-coverage disputes that include consideration of the vertical and horizontal exhaustion doctrines is necessarily complex, but it is part of an evaluation of the risks, rights, and obligations of clients engaging in commercial contracts. Courts must consider the insurance policies of the parties as well as the agreements between the insureds to determine the order in which each party’s policies must respond to a given loss. As one court has observed, “[E]stablishing a pecking order among multiple insurers covering the same risk…has been characterized as ‘a court’s nightmare.…’”1

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