4g Properties, Ltd. vs. Fireman'S Fund Insurance Company

Response

Cal. Super. - 4th Dist.January 6, 2015

10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 en & MORING LLP ATTORNEYS AT Law Steven D. Allison (State Bar No. 174491) sallison(@crowell.com Daniel M. Glassman (State Bar No. 179302) dglassman(@crowell.com Tu-Quyen Pham (State Bar No. 260864) tpham@crowell.com CROWELL & MORING LLP 3 Park Plaza, 20th Floor Irvine, California 92614-8505 Telephone: 949.263.8400 Facsimile: 949.263.8414 Attorneys for Defendant FIREMAN’S FUND INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CIVIL COMPLEX CENTER 4G PROPERTIES, LTD., Case No. 30-2015-00764640-CU-IC-CXC Plaintiff, DEFENDANT FIREMAN’S FUND INSURANCE COMPANY’S RESPONSE v. TO PLAINTIFF 4G PROPERTIES, LTD.’S SEPARATE STATEMENT OF FIREMAN’S FUND INSURANCE ADDITIONAL UNDISPUTED MATERIAL COMPANY FACTS AND SUPPORTING EVIDENCE IN and DOES 1 through 50, inclusive, OPPOSITION TO FIREMAN’S FUND’S MOTION FOR SUMMARY JUDGMENT Defendants. Date: April 7,2017 Time: 09:00 a.m. Dept: CX-102 Assigned For All Purposes To The Honorable William Claster, Dept. CX-102 Action Filed: January 6, 2015 Trial Date: May 22, 2017 Fireman’s Fund Insurance Company (“Fireman’s Fund” or “Defendant”) submits the following Response to 4G Properties, Ltd.’s (“4G Properties” or “Plaintiff”’) Separate Statement of Additional Undisputed Material Facts and Supporting Evidence in Opposition to Fireman's Fund’s Motion for Summary Judgment. 11 1 Case No. 30-2015-00764640-CU-IC-CXC FIREMAN'S FUND'S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFSIN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT IRactive-7133699.2 10 11 12 13 14 5 16 17 18 19 20 21 22 23 24 25 26 27 28 CROWELL & MORING LLP ATTORNEYS AT Law 4G Properties, Ltd.’s Purported Additional Undisputed Facts and Supporting Evidence Fireman’s Fund Insurance Company’s Response and Supporting Evidence 1. Fireman’s Fund sold Policy No. AZC 80096075 (April 12, 1986-April 12, 1987) (“Policy”) that named 4G as an additional insured. Fireman’s Fund Statement of Undisputed Material Fact, § 4. 1. Undisputed, except that Fireman's Fund Statement of Undisputed Material Fact, § 4 does not support the alleged fact. ro l The Policy promised coverage if “a claimis made or a suit is brought” against 4G as a result of Property Damage. Declaration of Daniel Kane (“Kane Decl.”), Exhibit A, at pg. 31 (FFIC000037). 2. Undisputed that the quotedlanguage is in the Policy, but there are additional terms that would need to be met, including that the claim or suit is “for damages” before there is “coverage.” See Declaration of Steven D. Allison ISO FFIC’s MSJ (“Allison Decl.”), Ex. D 3. The Policy contains an exclusion for coverage for Property Damage that arises out pollution, but the exception does not apply “if the discharge, release, escape or dispersal ofthe pollutant or contaminant is sudden and accidental.” Id at pg. 32 (FFIC000038). 3. Undisputed, but immaterial as the Court has already found there is no duty to defend or indemnify. See Allison Decl., Ex. D. Also, 4G confuses policy exclusions and exceptions to policy exclusions. a Fireman’s Fund had knowledge that 4G was an additional insured under the Policy “based on the fact thatit issued the Policy and that this Policy wasin its files starting from the date the Policy was issued through and including July 13, 2005.” Declaration of William D. Brown (“Brown Decl.”), 4 3, Exhibit 1, at pg. 5-6 [Fireman’s Fund Second Amended Response to 4G’s Request for Admission, Set 2, No. 32]; Brown Decl., § 4, Exhibit 2, at FFIC009070; Brown Decl., § 5, Exhibit 3, at 16-17 [Fireman's Fund’s Response to Special Interrogatory, Set 2, No. 33 (identifying documents in claims file)]. 4. Undisputed, but immaterial. Whether Fireman’s Fund had knowledge ofthe Policy and that 4G was an additional insured under the Policy does not prove that a particular adjuster had specific knowledge or that Fireman's Fund denied the existence ofthe Policy. 5. Since approximately 2002, 4G has been subject to an administrative claim by the Nevada Department of Environmental Protection (NDEP) as a result of the PCE contamination of the soil and groundwater onsite and adjacent to 4235 East Charleston Boulevard, Las Vegas, NV (“Site”) (the “NDEP Claim”). Declaration of Jack Tarr (“Tarr Decl.”), at 12. ) Tn 5. Disputed in part, but immaterial. There isno admissible evidence that 4G Properties hasbeen subject to an “administrative claim” bythe Nevada Division (not “Department”) ofEnvironmental Protection (“NDEP”). Mr.Tarr’s declaration lacks foundation, offers animproperlegal conclusion, and no otherevidence supports this purported fact. Case No. 30-2015-00764640-CU-IC-CXC ~ FIREMAN’S FUND'S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFS IN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 &Em, & MORING LLP ATTORNEYS AT LAW 4GProperties, Ltd.’s Purported Additional Undisputed Facts and Supporting Evidence 6. Jack Tarr is the Managing General Partner Fireman’s Fund Insurance Company’s Response and Supporting Evidence of 4G. Tarr Decl. at § 3. 6. Undisputed. 7. On or about April 3, 2003, Fireman's Fund received the initial notice of a claim regarding soil and groundwater contamination at the Site. Brown Decl., § 6, Exhibit 4, at pg. 6-7 [Fireman’s Fund Response to Request for Admission, Set 2, Nos. 33 and 34]. 7. Undisputed, but incomplete. Fireman's Fund received the document from Jack Tarr Developments insurance broker, Robert Noel, of Hayward Tilton & Rolapp on behalfof Jack Tarr Development, identifying a Jack Tarr Development policy, and attaching a letter from counsel for Jack Tarr Development on or about April 8, 2003. See Brown Decl. Ex.4, at pp. 6-7; id. Ex. 5, at FFIC0070358. 8. As part ofthe initial notice provided to N O | Fireman's Fund, documentation regarding the Site and the NDEP Claim identified 4G. Brown Decl., § 7, Exhibit 5, at FFIC007061; Brown Decl., 5, Exhibit 3, at 17 [Fireman's Fund's Response to Special Interrogatory, Set 2, No. 34 (identifying documents in claims file)]. The initial notice was received by Fireman’s Fund from Robert Noel, of Hayward Tilton & Rolapp, dated April 8, 2003. Brown Decl., Exhibit 5, at FFIC007058- FFIC007059; Brown Decl., Exhibit 4, at pg. 7 [Fireman's Fund Response to Request for Admission, Set 2, No. 35]; Brown Decl.. Exhibit 3, at 17 [Fireman’s Fund’s Response to Special Interrogatory, Set 2, No. 34 (identifying documents in claims file)]. 8. Disputed, but immaterial. The April 8, 2003 communication identified Jack Tarr Development Company, Inc. as the insured, submitted the claim undera Jack Tarr Developmentpolicy, and included a cover letter from counsel that identified himselfas representing Jack Tarr Development. See Brown Decl. Ex. 5, at FFIC007058- FFIC007059. Thereis no statement that the NDEP had made a claim against Jack Tarr Development or 4G Properties. The only passing mention of4G Propertiesis at the top ofthe report issued by Western Technologies, where it is listed “c/o Jack Tarr Companies.” Id. at FFIC007061. ) 9. Undisputed that Fireman's Fundreceiveda communication from “Robert Noel, of Hayward Tilton & Rolapp” on April 8, 2003 on behalf of Jack Tarr Development. - 10. Documents produced by Fireman's Fund represent that, on or about June 25, 2003,Fireman’s Fund stated that it received atelephone call from Robert Noel regardingthe claim and stated that Mr. Noelinformed Fireman’s Fund that he advised4@G’s attorney that theNDEP Claim wasnot covered. ne 10. Undisputed that the ATLAS notes state that Mr. Noelcalled and “advised the attorney right at the start that this was not covered.” Brown Decl. Ex. 5, at FFIC007788. The document speaks for itself. Disputed that Mr. Noel informed Fireman's Fund that “he advised 4G’s attorney,” as Case No. 30-2015-00764640-CU-IC-CXC| FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFS IN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT [Ractive-7133699.2 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CROWELL & MORING LLP ATTORNEYS AT Law 4G Properties, Ltd.'s Purported Additional Undisputed Facts and Supporting Evidence Fireman’s Fund Insurance Company’s Response and Supporting Evidence Brown Decl., Exhibit 5, at FFIC007787- FFIC007788; Brown Decl., Exhibit 3, at 17 [Fireman’s Fund's Response to Special Interrogatory No. 34 (identifying documents in claimsfile)]. opposed to Jack Tarr Development's attorney, since Jack Tarr Development tendered the 2003 claim. 11. On or about March 2, 2005, Fireman's Fund acknowledged that NDEP had made pollution claims against 4G. Brown Decl., Exhibit 5, at FFIC007794; Brown Decl., Exhibit 3, at 17 [Fireman’s Fund’s Response to Special Interrogatory, Set 2, No. 34 (identifying documents in claimsfile)]. 11. Undisputed that the ATLAS Notesstate that Fireman's Fund was “being askedto determine ifthere is coverage for the pollution claims being made by the Nevada Dec that has not filed suit,” but immaterial as 4G did not tender under the Policy until October 24, 2011 and the notes do not state that such a claim was being made or tendered by 4G in March 2005. Brown Decl. Ex. 5, at FFIC007794. r o [ . By March 2, 2005, Fireman's Fund had knowledge that 4G had alleged in a complaint against a former tenant ofthe Site that NDEP required 4G to commence remediation procedures at the Site. Brown Decl., Exhibit 1, at pg. 6-7 [Fireman's Fund Second Amended Response to Request for Admission No. 38]. 12. Undisputed that Fireman's Fund “had knowledge that 4G Properties alleged in its complaint against its former tenants that the NDEP ‘required [4G Properties] to commence remediation procedures at the cost and expense of [4G Properties]” by March 2, 2005,” in the context of the claim by Cappy’s Cleaners, but immaterial as 4G did not tender under the Policy until October 24, 2011. Brown Decl., Ex. 1,at pg. 6-7. 13. On or about March 2, 2005, Fireman's Fund identified 4G as a “Named Insured” on policies issued by Fireman’s Fund. Brown Decl., Exhibit 5, at FFIC007794- FFIC007795. 13. Undisputed. except that that Fireman's Fund identified 4G Properties as a “Named Insured” under policies issuedto Jack Tarr Development, not under the Policy issued to Cappy’s Cleaners. 14. On or about March 4, 2005, Fireman’s Fund denied coverage of the NDEP Claim under Fireman’s Fund Policy Nos. MXX80621811, MXX80675122, and MMX80800723. Tarr Decl.8, Exhibit 1, at FFIC007158- FFIC007163; Brown Decl., Exhibit 3, at 17 [Fireman's Fund’s Response to Special Intenogatory, Set 2, No. 34 (identifying documents in claimsfile)]. 14. Undisputed that Fireman’s Fund denied coverage of the claim submitted by Jack Tarr Development based on the absolute pollution exclusions contained in those policies. 15. Fireman's Fund Policy Nos. MXX80621811, MXX80675122, and MMX80800723 included 4G as a Named Insured. "15. Undisputed, except there is no Exhibit Xto Brown’s Declaration. -4- Case No. 30-2015-00764640-CU-IC-CXC FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UM FS IN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT IRactive-7133699 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CroweLL & MORING LLP ATTORNEYS AT Law 4G Properties, Ltd.'s Purported Additional Undisputed Facts and Supporting Evidence Fireman’s Fund Insurance Company’s Response and Supporting Evidence Brown Decl., Exhibit X, atpg. 21 [Fireman’s Fund’s Response to Special Interrogatory, Set 1,No. 25]. 16. Fireman’s Fund denied coverage on the grounds that Fireman's Fund Policy Nos. MXX80621811, MXX80675122, and MMX80800723 contained a pollution exclusion that excluded coverage of pollution related claims. Tarr Decl., Exhibit 1, at FFIC007158- FFIC007159; Brown Decl., Exhibit 3, at 17 [Fireman's Fund’s Response to Special Interrrogatory, Set 2, No. 34 (identifying documents in claims file)]. 16. Undisputed. . Fireman’s Fund did not address its coverage obligations to 4G under the Policy. Tarr Decl., Exhibit 1, at FFIC007158- FFIC007163; Brown Decl., Exhibit 3, at 17 [Fireman’s Fund’s Response to Special Interrogatory, Set 2, No. 34 (identifying documents in claims file)]. 117. Disputed. Fireman's Funddid addressits coverage obligations to 4G Properties under the Policy after 4G tendered underthe Policy on October 24, 2011. See Kane Decl. xs. C- D. In addition, the cited evidence does not support the purported undisputed fact. On or about October 4, 2011, Fireman's Fund represented to 4G that Fireman's Fund was unable to locate any evidence that Fireman’s Fund issued any policies to 4G. 18. Tarr Decl, §9, Exhibit 2, at FFIC000291; Brown Decl., Exhibit 3, at 16 [Fireman's Fund’s Response to Special Interrogatory, Set 2, No. 32 (identifying documents in claims file)]. 18. Disputed, but immaterial as the statement has nothing to do with the Policy at issue. The October 4, 2011 letter contains a statementthat Fireman’s Fund was “unable to locate any evidence of policies issued to 4G Properties, Ltd.,” but this statement followed a statement that 4G Properties waslisted as an additional insured on one of the Cappy’s Cleaner policies. Tarr Decl. Ex. 2, at FFFIC000291. Thus, the statement meant that Fireman’s Fund had not located any evidence of any other policies issued directly to 4G Properties as a named insured, not that it had not located any evidence of any policies that may provide coverage to 4G Properties as an additional insured. 19. On or about October 4, 2011, Fireman’s Fund represented to 4G that Fireman's Fund was unable to locate any evidence that Fireman’s Fund issued any policies to 4G. Tarr Decl., § 9. Exhibit 2,at FFIC000291; -5- 19. This is a repeat of 4G Properties’ Purported Additional Undisputed Fact § 18, and does not require a further response. See 918. Case No. 30-2015-00764640-CU-IC-CXC | FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFS IN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT [Ractive-7133699.2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CROWELL & MORING LLP ATTORNEYS AT LAW "4G Properties, Ltd.'s Purported Additional Undisputed Facts and Supporting Evidence Fireman's Fund Insurance Company’s Response and Supporting Evidence Brown Decl., Exhibit 3, at 16 [Fireman's Fund’s Response to Special Interrogatory, Set 2, No. 32 (identifying documents in claims file)]. 20. On or about April 23, 2012, Fireman’s Fund sent 4G’s counsel a letter that represented that Fireman's Fund spoke with Mr. Noel regarding Jack Tarr’s claim that he communicated with Mr. Noel in 2002 about the NDEP Claim. Fireman’s Fund denied that Mr. Tarr’s communication with Mr. Noel was sufficient to trigger any potential coverage obligations under the Policy and also claimed that 4G had not provided Fireman’s Fund with evidence that Mr. Tarr provided “written notice” ofthe “accident or OCCURRENCE” to Fireman's Fund or its agent “as soon as practicable”. Brown Decl.§ 8, Exhibit 6, at FFIC000685-FFI1C000686; Brown Decl, Exhibit 3, at 16 [Fireman's Fund’s Response to Special Interrogatory, Set 2, No. 32 (identifying documents in claims file)]. 20. Undisputedthat the referenced letter states that “Fireman’s Fund denied that Mr. Tarr’s communication with Mr, Noel was sufficient to trigger any potential coverage obligations underthe Policy andalso claimed that 4G had not provided Fireman's Fund with evidence that Mr. Tarr provided “written notice” of the ‘accident or OCCURRENCE” to Fireman’s Fund orits agent ‘as soon as practicable,”but immaterial as there is no evidence that Mr. Noel tendered on behalf of 4G under the Policy. See Brown Decl, Ex. 6, at FFIC000685-FFIC000686. Instead, Mr. Noel indicated that he had no part in the issuance of the Policy to Cappy’s Cleaners. See id. at FFIC000685. 7 Case No. 30-20 15-00764640-CU-IC-CXC FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFSIN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT IRactive-7133699 2 10 1 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 CroweLL & MORING LLP ATTORNEYS AT Law 4G Properties, Ltd.’s Purported Additional Undisputed Facts and Supporting Evidence Fireman’s Fund Insurance Company’s Response and Supporting Evidence 21. 4G’s complaint against Fireman’s Fund includes a cause ofaction for the breach of the covenant ofgood faith and fair dealing because Fireman’s Fund’s [sic] “has placed its own interests ahead ofthose of [4G]... See Declaration of Steven D. Allison (“Allison Decl.”), Exhibit B [4G | Complaint], at pg. 39. DATED: March 30, 2017 By: 21. Undisputed that the Complaint contains these nine words, but the cause of action says nothing about Fireman's Fund denying the existence ofthe Policy or denying 4G’s status as additional Insured under the Policy. See Allison Decl., Ex. B, at p. 39. CROWELL & MORING LLP Steven D. Allison Daniel M. Glassman Tu-Quyen Pham Attorneys for Defendant FIREMAN'S FUND INSURANCE COMPANY 7 Case No. 30-2015-00764640-CU-IC-CXC “FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFS IN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT 1Ractive-7133699.2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CROWELL & MORING LLP ATTORNEYS AT Law PROOF OF SERVICE I, Katarina Castillo, state: My business address is 3 Park Plaza, 20th Floor, Irvine, CA 92614-8505. 1 am over the age of eighteen years and not a party to this action. On the date set forth below, I served the foregoing document(s) described as: DEFENDANT FIREMAN’S FUND INSURANCE COMPANY’S RESPONSE TO PLAINTIFF 4G PROPERTIES, LTD.'S SEPARATE STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE IN OPPOSITION TO FIREMAN’S FUND’S MOTION FOR SUMMARY JUDGMENT on the following person(s) in this action: Please see attached Service List Cl BY FIRST CLASS MAIL: 1am employed in the County of Orange County where the mailing occurred. | enclosed the document(s) identified above in a sealed envelope or package addressed to the person(s) listed above, with postage fully paid. I placed the envelope or package for collection and mailing, following our ordinary business practice. | am readily familiar with this firm’s practice for collecting andprocessing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service. O BY MESSENGER SERVICE: I caused the document(s) identified aboveto be served by placing them in an envelope or package addressed to the person(s) listed above and providing them to a professional messenger service for service. Ed BY OVERNIGHT DELIVERY: I enclosed the document(s) identified above in a scaled envelope or package addressed to the person(s) listed above, in an envelope or package designated by the overnight delivery carrier with delivery fees paid or providedfor. I placed the envelope or package for collection and overnight deliveryat an office or a regularly utilized drop box ofthe overnight delivery carrier, or by delivering to a courieror driver authorized bythe overnight delivery carrier to receive documents. a BY FACSIMILE: Based on an agreement ofthe parties to accept service by facsimile transmission, | faxed the document(s) identified above to the person(s) at the fax number(s) listed above. The transmission was reported complete and without error. 1 have attached a copy ofthe transmission report that wasissued by the facsimile machine. (4 BY ONELEGAL E-SERVICE: 1 served the document(s) identified above by delivering a copy to OneLegalfor electronic service on the person(s) listed on the attached Service List. -1- Case No. 30-2015-00764640-CU-JC-CXC FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UM FS | IN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT IRactive-7133699.2 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CROWELL & MORING LLP ATTORNEYS AT Law O BY ELECTRONIC MAIL: Based on a court orderor an agreement ofthe parties to accept service by electronic mail, I caused the document(s) identified above to be transmitted electronically to the person(s) at the e-mail address(es) listed above. I did notreceive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed on March 30, 2017, at Irvine, California. Katarina § -2- Case No. 30-2015-00764640-CU-JC-CXC FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFSIN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT IRactive-7133699.2 i 4G Properties, Ltd. v. Fireman’s Fund Insurance Company, et al. 2 3 SERVICE LIST 4 5 | William D. Brown, Esq. Counselfor Plaintiff Benjamin P. Syz, Esq. 4G PROPERTIES, LTD. 6 |BROWN & WINTERS 120 Birmingham Drive, Suite 110 7 Cardiff-by-the-Sea, CA 92007 Telephone: 760.633.4485 8 |Facsimile: 760.633.4427 Emails: bbrown@brownandwinters.com 9 bsyz@brownandwinters.com 10 Robert M. Horkovich, Esq. Counselfor Plaintiff ANDERSON KILL P.C. 4G PROPERTIES, LTD. 11 1251 Avenue of the Americas New York, NY 10020 12 ||Telephone: 212.278.1000 Facsimile: 212.278.1733 13 Email: rhorkovich@andersonkill.com 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e -3- Case No. 30-2015-00764640-CU-JC-CXC ROWELL EMORINELIP FIREMAN’S FUND’S RESPONSE TO 4G PROPERTIES’ SEPARATE STATEMENT OF ADDITIONAL UMFS IN OPPOSITION TO FIREMAN'S FUND'S MOTION FOR SUMMARY JUDGMENT [Ractive-7133699.2