Preview
ROBERT H. ROE, SBN 091041
1
15651 Dickens Street, No. 104
2 Encino, CA 91436-3133
Tel: (760) 443-0984 Fax: (818) 235-0172
3 Email: rroe231@gmail.com
4
DANIEL D. HOLLINGSWORTH, SBN 304617
5 Hollingsworth Law Firm
6 550 Figueroa Street, Suite F
Monterey, CA 93940
7 Tel: (831) 920-0777 Fax: (831) 920-0840
E-mail: daniel@hollingsworthlegal.com
8
9 Attorneys for plaintiffs Robert Clampett and Marianna Clampett
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF MONTEREY – MONTEREY COURTHOUSE
12
13
ROBERT CLAMPETT, an individual, and ) Case No.: 21CV001804
14 MARIANNA CLAMPETT, an individual, ) Hon. Carrie M. Panetta
) Dept.: 14
15 )
Plaintiffs, ) PLAINTIFFS’ SEPARATE
16 ) STATEMENT OF UNDISPUTED AND
) DISPUTED MATERIAL FACTS IN
17 v. ) OPPOSITION TO DEFENDANT
) HOMESITE INSURANCE COMPANY
18 ) OF CALIFORNIA’S MOTION FOR
19 HOMESITE INSURANCE COMPANY OF ) SUMMARY JUDGMENT, OR IN THE
CALIFORNIA, a California corporation; DOES ) ALTERNATIVE, SUMMARY
20 1 through 10, inclusive, ) ADJUDICATION
)
21 )
Defendants. ) Date: August 21, 2023
22 ) Time: 8:30 a.m.
) Dept.: 14
23 )
) Complaint Filed: June 3, 2021
24 ) Trial Date: September 18, 2023
)
25 )
)
26 )
)
27 )
)
28
1
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Plaintiffs Robert Clampett and Marianna Clampett (“Plaintiffs”) respectfully submit this
2 Separate Statement of Undisputed and Disputed Facts in Opposition to Defendant Homesite
3 Insurance Company of California’s Motion for Summary Judgment, or in the alternative, Summary
4 Adjudication, as follows:
5
6 I. PLAINTIFFS’ REPONSE TO DEFENDANT’S STATEMENT OF UNDISPUTED
7 MATERIAL FACTS.
8
9 UMF HOMESITE’S UNDISPUTED FACTS PLAINTIFFS’ RESPONSE AND
10 No. SUPPORTING EVIDENCE
11 1. Homesite issued Homeowner’s Insurance Undisputed.
12 Policy No. 35116833 to Plaintiffs Robert
13 and Marianna Clampett (Collectively
14 “Plaintiffs”), which remained in force at all
15 times relevant, and which provided property
16 insurance, subject to all its terms and
17 provisions, for Plaintiffs’ residential
18 dwelling located at 27467 Schulte Rd.,
19 Carmel, California 93923 (“Property”),
20 effective January 30, 2018, to January 30,
21 2019.
22
23 Supporting Evidence:
24 • Declaration of Scott Callahan in
25 support of Motion for Summary
26 Judgment, or in the alternative,
27 Summary Adjudication (“Callahan
28 Decl.”), ¶¶ 16, 17, Exh. A
2
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 2. The Policy provided insurance coverage Undisputed.
2 under Coverage Part A, for the risk of direct
3 physical loss to the insured dwelling, subject
4 to a variety of limitations and exclusions.
5
6 Supporting Evidence:
7 • Callahan Decl., ¶ 17, Exh. A (See
8 Policy – Section I Perils Against
9 Insured – See Coverage A)
10 3. The Policy expressly provided that it did not Undisputed that the policy contains
11 provide coverage for losses caused by: that language. Disputed that those
12 “e. Any of the following: exclusions are enforceable in this case.
13 (1) Wear and tear, marring, Insurance policy exclusions are
14 deterioration; unenforceable to the extent that they
15 *** conflict with the efficient proximate
16 (3) Smog, rust or other corrosion, cause doctrine; thus, an insurer cannot
17 mold, wet or dry rot; contract around the efficient proximate
18 *** cause doctrine to give broader effect to
19 (6) Settling, shrinking, bulging or its policy exclusions. (Insurance
20 expansion, including resultant Code, section 530; Vardanyan v.
21 cracking, of pavements, patios, AMCO Ins. Co. (2015) 243
22 foundations, walls, floors, roofs, Cal.App.4th 779, review denied.)
23 or ceilings;
24
25 Supporting Evidence:
26 • Callahan Decl., ¶ 17, Exh. A (See
27 Policy, Section I – Perils Insured
28 Against – Coverage A - ¶ 2(e)(1).)
3
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 4. The Policy expressly excluded coverage for Undisputed that the policy contains
2 losses caused directly or indirectly, that language. Disputed that those
3 regardless of any other cause or event exclusions are enforceable in this case.
4 contributing concurrently or in any sequence Insurance policy exclusions are
5 to the loss by: unenforceable to the extent that they
6 “e. Neglect, meaning neglect of the conflict with the efficient proximate
7 “insured” to use all reasonable means to save cause doctrine; thus, an insurer cannot
8 and preserve property at and after the time of contract around the efficient proximate
9 a loss.” cause doctrine to give broader effect to
10 its policy exclusions. (Insurance
11 Supporting Evidence: Code, section 530; Vardanyan v.
12 • Callahan Decl., ¶ 17, Exh. A (See AMCO Ins. Co. (2015) 243
13 Policy - Section I – Exclusions - ¶ Cal.App.4th 779, review denied.)
14 1(e))
15 5. The Policy expressly provided that it did not Undisputed that the policy contains
16 provide coverage for loss to the dwelling that language. Disputed that those
17 caused by any of the following: exclusions are enforceable in this case.
18 “a. Weather conditions. However, this Insurance policy exclusions are
19 exclusion only applies if weather conditions unenforceable to the extent that they
20 contribute in any way with a cause or event conflict with the efficient proximate
21 excluded in paragraph 1. above to produce cause doctrine; thus, an insurer cannot
22 the loss; contract around the efficient proximate
23 *** cause doctrine to give broader effect to
24 “ c. Faulty, inadequate or defective: its policy exclusions. (Insurance
25 *** Code, section 530; Vardanyan v.
26 (2) Design, specifications, AMCO Ins. Co. (2015) 243
27 workmanship, repair, construction, Cal.App.4th 779, review denied.)
28 renovation, remodeling, grading,
4
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 compaction;
2 ***
3 (4) Maintenance;”
4 of part or all of any property whether on
5 or off the “residence premises”.
6
7 Supporting Evidence:
8 • Callahan Decl., ¶ 17, Exh. A (See
9 Policy Section I – Exclusions - ¶
10 2(c)(2)(4).)
11 6. The Policy also contained a relevant Undisputed that the policy contains
12 Endorsement that provided Limited Fungi, that language. Disputed that those
13 Wet or Dry Rot, or Bacteria Coverage, exclusions are enforceable in this case.
14 which provides that: Insurance policy exclusions are
15 “These limits of liability apply to the total of unenforceable to the extent that they
16 all loss or costs payable under this conflict with the efficient proximate
17 endorsement, regardless of the number of cause doctrine; thus, an insurer cannot
18 “occurrences”, the number of claims-made, contract around the efficient proximate
19 or the number of locations insured under this cause doctrine to give broader effect to
20 endorsement and listed in this Schedule. its policy exclusions. (Insurance
21 Section I-Property Coverage Limit for the Code, section 530; Vardanyan v.
22 Additional Coverage “Fungi”, Wet or Dry AMCO Ins. Co. (2015) 243
23 Rot, or Bacteria- $2500 Cal.App.4th 779, review denied.)
24 ***
25 DEFINITIONS
26 The following definition is added:
27 “Fungi”
28 a. “Fungi” means any type or form of
5
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 fungus, including mold or mildew,
2 and any other mycotoxins, spores,
3 scents or by-products produced or
4 released by fungi.
5 ***
6 SECTION I-PROPERTY COVERAGES
7 The following Additional Coverage is
8 added:
9 12. “Fungi”, Wet Or Dry Rot, Or Bacteria
10 a. The amount shown in the Schedule above
11 is the most we will pay for:
12 (1) The total of all loss payable under
13 Section I-Property Coverages caused by
14 “fungi” wet or dry rot, or bacteria;
15 (2) The cost to remove “fungi” wet or dry
16 rot, or bacteria from Property covered
17 under Section I- Property Coverages;
18 (3) The cost to tear out and replace any
19 part of the building or other covered
20 property as needed to gain access to the
21 “fungi” wet or dry rot, or bacteria;”
22
23 Supporting Evidence:
24 • Callahan Decl., ¶ 17, Exh. A (See
25 Policy – Endorsement Form HH 04
26 32 09 02 – Section I)
27 7. The Policy established a number of duties
28 that are imposed on an insured after a loss,
6
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 including the duty to:
2 “a. Give prompt notice to us or our agent;
3 **
4 d. Protect the property from further damage.
5 If repairs to the property are required, you
6 must:
7 (1) Make reasonable and necessary repairs to
8 protect the property; and
9 (2) Keep an accurate record of repair
10 expenses;”
11
12 Supporting Evidence:
13 • Callahan Decl., ¶ 17, Exh. A (See
14 Section I – Conditions- ¶ 2(a)(d))
15 8. On August 13, 2019, Plaintiff Robert Disputed. When Plaintiffs first
16 Clampett called Homesite and first reported reported the claim to Defendant, they
17 a claim for water damage that he indicated informed the company that the damage
18 had occurred 7 months earlier, in January occurred to their residence on or about
19 2019, due to a storm that had caused water to November 29, 2019.
20 seep through the windows and doors of the Evidence:
21 Property. Mr. Clampett reported that the Plaintiffs’ Compendium, Ex. 1
22 floors, ceilings, window and door frames of Robert Clampett Declaration, ¶ 9
23 his home were damaged; that there were
24 cracks in the walls; and, that the sheet rock
25 was coming apart. (“Claim”)
26
27 Supporting Evidence:
28 • Callahan Decl., ¶ 18, Exh. B (see
7
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 “Clampett611”)
2 • Callahan Decl., ¶ 19, Exh. C
3 9. Homesite initially assigned adjuster Jacob Undisputed.
4 Lee (“Lee”) to process and handle Plaintiffs’
5 Claim. Lee notified Plaintiffs in voicemails
6 and emails that he was assigned to handle
7 their Claim.
8
9 Supporting Evidence:
10 • Callahan Decl., ¶ 20, Exh. D
11 10. On August 20, 2019, Lee retained Undisputed.
12 independent adjusting company Ryze Claims
13 Solutions, LLC. (“Ryze”) to inspect the
14 Property, assess the damage, and prepare a
15 repair estimate. Ryze assigned local
16 independent adjuster, Charles Linard
17 (“Linard”) to conduct the inspection and
18 assist Lee and Homesite with Plaintiffs’
19 Claim.
20
21 Supporting Evidence:
22 • Callahan Decl., ¶ 21, Exh. E
23 11. On August 26, 2019, Linard inspected the Undisputed.
24 Property, where he met with Robert
25 Clampett and Plaintiffs’ contractor, Tom
26 Long (“Long”). Linard observed that Long
27 had already removed portions of the stucco,
28 exposing the framing around several
8
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 windows, and portions of the garage ceiling.
2
3 Supporting Evidence:
4 • Declaration of Barbara J. Mandell in
5 support of Motion for Summary
6 Judgment, or in the alternative,
7 Summary Adjudication (“Mandell
8 Decl.”), ¶ 8, Exh. AA (Charles
9 Linard Depo., p. 138:5-13; see
10 exhibit 15 of Linard Transcript)
11 • Callahan Decl., ¶ 22, Exh. F
12 • Callahan Decl., ¶ 23, Exh. G
13 12. During his inspection, Linard observed stress Disputed.
14 cracks along the window and door openings Objection - See Plaintiffs’ Objections
15 throughout the Property, on the exterior to Evidence No’s 1, 2, 3 & 7.
16 stucco and the interior drywall, and noted
17 that the damages were more pronounced
18 along the rear elevation of the Property.
19 Linard also observed stress cracks along the
20 doors and window openings throughout the
21 Property, which over time, would have
22 allowed water to penetrate the cracks and
23 cause the window and door framing to rot,
24 which he observed and was severe. Linard
25 also observed water and mold damage inside
26 the dwelling. Linard took numerous
27 photographs documenting his observations,
28 and reported on his findings to Lee and
9
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Homesite.
2
3 Supporting Evidence:
4 • Mandell Decl., ¶ 8, Exh. AA (Charles
5 Linard Depo., p. 138:5-13; see
6 exhibit 15 of Linard Transcript.)
7 • Callahan Decl., ¶ 22, Exh. F
8 • Callahan Decl., ¶ 23, Exh. G
9 13. Linard advised Lee that almost all the damage Undisputed that Linard made those
10 to the Property was long-term mold and rot, statements to Lee. Disputed in that
11 but that there was also some minor water those statements are used as
12 staining in the interior of the dwelling that conclusions on causation of damages to
13 appeared to be relatively recent. Lee informed Plaintiffs’ residence.
14 Linard that the Policy provided limited mold Objection - See Plaintiffs’ Objections
15 and rot coverage, subject to a $2,500 limit. to Evidence No’s 1, 2, 3 & 7.
16
17 Supporting Evidence:
18 • Callahan Decl., ¶ 22, Exh. F
19 • Mandell Decl., ¶ 8, Exh. AA (Charles
20 Linard Depo., pp. 136:13-22, 138:5-
21 13; see exhibit 14 and 15 of Linard
22 Transcript)
23 14. On September 6, 2019, Linard provided Undisputed that Linard provided
24 Homesite with his repair estimate, final report Homesite with a final report and
25 and photographs of the Property. Because the photographs of the Property on
26 mold and rot damage was severe, and the cost September 6, 2019. Disputed as to
27 of repairs would clearly exceed the applicable whether Linard independently prepared
28 mold/rot limit provided for by the Policy, the or drafted the repair estimate. Linard
10
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 repair estimate included exhausting the admitted Jacob Lee, an in house
2 $2,500 mold/rot limit, and an additional adjuster at Homesite, instructed him
3 $7,889.27 for the recent interior water how to apply coverage to portions of
4 damage, for a total benefit payment of the repair estimate, including
5 $10,389.27. categorizing any “long term” damage
6 as falling under the mold/rot
7 Supporting Evidence: endorsement. Linard testified that any
8 • Callahan Decl., ¶ 23, Exh. G “new damage” caused by water would
9 • Mandell Decl., ¶ 8, Exh. AA (Charles be fully covered under Coverage A of
10 Linard Depo., p. 65:7-12) the policy. Linard recommended to
11 Homesite that hiring an engineer
12 “could be useful”, and felt that more
13 stucco should be opened up to
14 determine the extent of the damage.
15 Evidence:
16 Plaintiffs’ Compendium, Ex. 5; (Linard
17 Depo., at 65:7-12; 82:24-83:17;
18 136:18-138:3; 147:15-148:11; 148:21-
19 149:18)
20 15. Linard did not itemize the entirety of the Undisputed that Linard did not itemize
21 mold/rot damage in his estimate, because the entirety of the mold/rot damage in
22 there was no need to, given that he could see his estimate (he did not itemize any
23 the cost of repairing the mold/rot damage mold/rot damage). Disputed. There is
24 exceeded $100,000, and the Policy only no evidence that the mold/rot damage
25 provided $2,500 in coverage for mold/rot exceeded $100,000.00. There are only
26 damage. six (6) pictures in Linard’s report
27 showing any evidence of mold/rot
28 Supporting Evidence: damage, and those photos depict only
11
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 • Mandell Decl., ¶ 8, Exh. AA (Charles two (2) limited areas of the house in and
2 Linard Depo., pp. 51:24-52:2, 59:1- area between the garage and guest
3 11, 85:13-23) bedroom.
4 Evidence:
5 Defendant’s Evidence, Exhibit G, pp.
6 83, 107-109 (Linard Report, comments
7 to pictures designated 9 & 10 at p. 5,
8 and pictures 58-61 at pp. 29-31.)
9 16. After reviewing Linard’s estimate and Undisputed that Linard sent a written
10 report, on September 9, 2019, Homesite report to Homesite on or about
11 issued payment of $10,389.27 to Plaintiffs, September 9, 2019 and that Homesite
12 along with a partial denial of their Claim, in issued a check to plaintiffs in the
13 which it was noted that on August 13, 2019, amount of $10,389.27.
14 Plaintiffs first reported that the Property had Disputed as that the cracks in the
15 been damaged by a wind driven rainstorm 7 stucco allowed rain to penetrate in the
16 months earlier, in January 2019. Homesite’s dwelling which caused mold and rot
17 correspondence further indicated that the damages.
18 inspection of the Property revealed that there Evidence:
19 were cracks in the stucco and window and Plaintiffs’ Compendium, Ex. 2
20 door openings throughout the dwelling that (Long Decl., ¶¶ 10-12.)
21 had allowed rain to penetrate, and cause Objection - See Plaintiffs’ Objections
22 mold and rot damage, which was subject to to Evidence No’s 1, 2, 3 & 7 regarding
23 the Policy’s $2500 mold/rot limit. Homesite conclusions on causation.
24 additionally advised Plaintiffs that they
25 should forward any additional information
26 that might change Homesite’s coverage
27 position.
28
12
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Supporting Evidence:
2 • Callahan Decl., ¶ 24, Exh. H
3 17. Over three months later, on December 17, Undisputed.
4 2019, Mr. Clampett emailed Lee, indicating
5 that there was “a lot more wind/rain damage
6 than originally thought”, and that he was
7 submitting an estimate prepared by Tom
8 Long for $492,903.70, to replace 31
9 windows and 9 doors at the Property.
10
11 Supporting Evidence:
12 • Callahan Decl., ¶ 25, Exh. I
13 • Mandell Decl., ¶ 5
14 18. Emails exchanged between Mr. Clampett Disputed. See Objections to Evidence
15 and Long, confirm that after Mr. Clampett No. 4. The e-mails from Long are
16 expressed surprise that the estimate was hearsay. Those e-mails are also
17 “double what [they] thought,” Long advised irrelevant because the May 6, 2021
18 that he had wanted to give Plaintiffs “a bit unanimous appraisal award ultimately
19 high of an estimate so there would be room set the amount of plaintiffs’ loss at
20 for him to negotiate.” $555,070.63, which was substantially
21 higher than Long’s December 2019
22 Supporting Evidence: estimate. Homesite is bound by the
23 • Mandell Decl., ¶ 4, Exh. X findings of the appraisal panel and
24 cannot dispute the scope of loss or cost
25 of repair determined by the appraisal
26 panel.
27 19. Homesite reviewed Long’s bid, and on Disputed that Tom Long’s written
28 December 31, 2019, Lee notified Mr. estimate was not simply a “bid;” rather
13
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Clampett that Homesite would be unable to it was a “proof of claim” as defined by
2 provide additional coverage for the damage the California Fair Claims Settlement
3 to all the doors and windows because the Practices Regulations, 10 Cal. Code
4 mold/rot limit was only $2,500, and the Regs. Section 2695.2 subdivision (s).
5 remainder of the damages were not covered Also disputed that Jacob Lee
6 by the terms of the Policy. responded appropriately to plaintiffs’
7 proof of claim in the manner required
8 Supporting Evidence: by California’s Fair Claims Settlement
9 • Callahan Decl., ¶ 18, Exh. B, Practices Regulations, 10 Cal. Code
10 “Clampett 598”) Regs. section 2695.7 and 2695.9.
11 • Callahan Decl., ¶¶ 26, 27, Exh. J Evidence:
12 Plaintiffs’ Compendium, Ex.
13 Moriarty Decl., ¶ 16
14 20. On March 27, 2020, Mr. Clampett called Undisputed.
15 Homesite, and advised that he hired an
16 attorney, and that his attorney and
17 contractors had concluded that the damage
18 was caused by wind-driven rain. The
19 Homesite adjuster who spoke with Mr.
20 Clampett asked that he send his expert
21 reports so they could be reviewed by Lee,
22 who was out of the office, but would contact
23 Plaintiffs when he returned.
24
25 Supporting Evidence:
26 • Callahan Decl., ¶ 18, Exh. B (see
27 “Clampett595-596”)
28 • Callahan Decl., ¶ 28
14
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 21. On April 8, 2020, Mr. Clampett sent an Undisputed.
2 email to Lee, advising that he had retained
3 attorney David Hollingsworth
4 (“Hollingsworth”) to represent him, and that
5 Lee was authorized to discuss the Claim
6 directly with Hollingsworth.
7
8 Supporting Evidence:
9 • Callahan Decl., ¶ 29, Exh. K
10 22. On April 9, 2020, Lee notified Hollingsworth Undisputed.
11 that he had a meeting scheduled with
12 Homesite’s claims team on April 14th to
13 further discuss the Claim, and that he would
14 get back to Hollingsworth after the meeting.
15
16 Supporting Evidence:
17 • Callahan Decl., ¶ 30, Exh. L
18 23. Due to the size of Long’s recent estimate, on Undisputed.
19 April 14, 2020, Homesite transferred the
20 Claim to a large loss adjuster, and advised
21 Hollingsworth that the Claim had been
22 transferred to Tammy Brown (“Brown”), for
23 further handling. Brown left a voicemail for
24 Hollingsworth, and sent correspondence to
25 Plaintiffs advising that she was the new
26 adjuster responsible for their Claim.
27
28 Supporting Evidence:
15
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 • Callahan Decl., ¶ 18, Exh. B (see
2 “Clampett591”)
3 • Callahan Decl., ¶ 31, Exh. M
4 24. On April 21, 2020, Brown discussed the Undisputed.
5 Claim with Homesite’s legal department,
6 and advised Hollingsworth and Plaintiffs
7 that Homesite was hiring Donan Engineering
8 to advise as to the cause of the damage to
9 Plaintiffs’ Property, and to assist Homesite
10 in determining if any additional Policy
11 benefits were owed.
12
13 Supporting Evidence:
14 • Callahan Decl., ¶ 32, Exh. N.
15 25. On May 3, 2020, Donan civil engineer Phu Undisputed that David Hollingsworth
16 Nguyen (“Nguyen”) met Long and and Tom Long met Phu Nguyen at the
17 Hollingsworth at the Property. Clampetts’ home on or about May 3,
18 Hollingsworth advised Nguyen that heavy 2020.
19 winds between late 2018 and early 2019 had Disputed as to Callahan’s statements
20 caused water intrusion at the Property. regarding the Nyugen Report (See
21 Nguyen observed that Long was in the Objections to Evidence, No. 5.)
22 process of repairing the exterior walls
23 around the doors and windows and had
24 already removed and replaced the interior
25 drywall around many of the doors and
26 windows. Nguyen observed that there were
27 deteriorated window flashings and rotted
28 wall framing members, and that the exterior
16
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 stucco around many of the doors and
2 windows had already been removed.
3
4 Supporting Evidence:
5 • Callahan Decl., ¶ 33, Exh. O.
6 26. While conducting his inspection, Nguyen Disputed as to Callahan’s statements
7 was able to observe the damage to the regarding the Nyugen Report (See
8 Property and the repairs that were already in Objections to Evidence, No. 5.)
9 process, and he took photographs to
10 document his observations. After the
11 inspection, Nguyen researched the local
12 weather data in Carmel from late 2018 to
13 early 2019, and reviewed the photographs
14 previously taken by Linard at the time of his
15 inspection in August 2019.
16
17 Supporting Evidence:
18 • Callahan Decl., ¶ 33, Exh. O
19 27. Based on Nguyen’s personal observations Disputed. Nguyen testified that he did
20 and photos of the Property at his May 2020 not distinguish between the stress
21 inspection, his review of Linard’s photos cracks being cosmetic cracks or stress
22 taken at the time of Linard’s August 2019 cracks. He did not know what type of
23 inspection, the historical weather data in the membrane the Clampett residence had,
24 Carmel area from late 2018 to early 2019, or whether it had been penetrated.
25 and his own professional experience and Thomas Long, on the other hand, water
26 expertise, Nguyen concluded that there were tested the stucco and found that the
27 cracks in the exterior stucco caused by fiberglass vapor barrier was still
28 normal expansion and contraction as a result performing as expected and prevented
17
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 of long-term weather exposure; that the any water intrusion behind the stucco.
2 deteriorated and rotted wall framing was Mr. Long also found that the weep
3 caused by water intrusion around the door screed was properly installed and
4 and window openings; that cracks in the performing as expected.
5 stucco had likely contributed to the water
6 intrusion; that the dark stained and Evidence:
7 deteriorated condition of the window and Plaintiffs’ Compendium, Ex. 2 & 6
8 door framing indicated that the water Long Decl. ¶ 17.
9 intrusion was a long-term situation and not Nguyen Depo., at 65:17-66:8; 66:18-
10 the result of a one-time event; and that there 68:1
11 were other defects and faulty workmanship
12 in the application of the stucco and
13 construction of the Property.
14
15 Supporting Evidence:
16 • Callahan Decl., ¶ 33, Exh. O
17 • Mandell Decl., ¶ 15, Exh. HH (Phu
18 Nguyen Depo., pp. 51:12-52:7, 58:14-
19 19, 107:11-14)
20 28. Consistent with Donan Engineering Undisputed.
21 procedures, Nguyen’s report was reviewed
22 and approved by a senior Donan engineer,
23 and then provided to Homesite on May 21,
24 2020.
25
26 Supporting Evidence:
27 • Callahan Decl., ¶ 18, Exh. B (see
28 “Clampett582”)
18
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 • Mandell Decl., ¶ 15, Exh. HH (Phu
2 Nguyen Depo., pp. 38:20-39:24)
3
29. On May 27, 2020, Brown reviewed the Undisputed that Homesite reaffirmed
4
Donan report and the entire Claim with her its denial of plaintiffs’ claim.
5
supervisor and Homesite’s legal department, Disputed that there was extensive mold
6
and Homesite decided to stand by its partial and rot damage, and that any of the
7
denial of the Claim based on the physical mold and rot damage was subject to the
8
inspection of the Property, the Donan policy’s $2,500.00 limit.
9
Engineering report, the terms of the Policy, Insurance policy exclusions are
10
and the extensive mold and rot damage, unenforceable to the extent that they
11
which was subject to the $2500 mold/rot conflict with the efficient proximate
12
limit that had previously been paid to cause doctrine; thus, an insurer cannot
13
Plaintiffs. contract around the efficient proximate
14
cause doctrine to give broader effect to
15
Supporting Evidence: its policy exclusions. (Insurance
16
• Callahan Decl., ¶ 18, Exh. B (see Code, section 530; Vardanyan v.
17
“Clampett580”) AMCO Ins. Co. (2015) 243
18
• Callahan Decl., ¶ 34 Cal.App.4th 779, review denied.)
19
Evidence:
20
Plaintiffs’ Compendium, Ex. 2
21
Long Decl., ¶ 16
22
30. Also on May 27, 2020, Brown forwarded the Undisputed.
23
Donan report to Hollingsworth and relayed
24
Homesite’s position that it would be standing
25
on its partial denial of the Claim, but that if
26
Hollingsworth had any expert reports that he
27
thought would support a different conclusion,
28
19
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 he should provide them to Homesite for
2 further consideration.
3
4 Supporting Evidence:
5 • Callahan Decl., ¶ 34, Exh. P
6 31. Between early June and late August 2020, Undisputed.
7 Brown sent numerous letters to Plaintiffs
8 advising that the Claim was still open, and
9 that Homesite was waiting to review any
10 additional information Plaintiffs might
11 provide that would impact coverage for
12 Plaintiffs’ Claim.
13
14 Supporting Evidence:
15 • Callahan Decl., ¶ 35, Exh. Q
16 32. On or about August 26, 2020, Hollingsworth Disputed. The Hollingsworth letter
17 emailed Homesite a 27-page letter in which was a settlement offer and therefore
18 he conceded that in August 2018 (a year inadmissible pursuant to Evidence
19 before the Plaintiffs reported their Claim), the Code section 1152. See Objections to
20 Clampetts had decided to replace all the doors Evidence, No. 6.
21 and windows at the Property because they no
22 longer worked properly.
23
24 Supporting Evidence
25 • Callahan Decl., ¶ 36, Exh. R
26 33. In Hollingsworth’s August 26, 2020, letter, Disputed. The Hollingsworth letter
27 he further confirmed the observations of was a settlement offer and therefore
28 Linard in August 2019 and Nguyen, in May inadmissible pursuant to Evidence
20
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 2020, that dry rot caused by water intrusion Code section 1152. See Objections to
2 was confined to, and found at virtually every Evidence, No. 6.
3 door and window at the Property.
4 Hollingsworth further confirmed that the
5 damage to Plaintiffs’ Property was caused by
6 a combination of water intrusion, mold and
7 rot, and that the Clampetts’ Policy contained
8 a mold/rot limit.
9
10 Supporting Evidence
11 • Callahan Decl., ¶ 36, Exh. R
12 34. Accompanying his August 26, 2020 letter, Undisputed except Disputed as to the
13 Hollingsworth provided the opinions of two representation that there was extensive
14 contractors who criticized the Donan mold and rot at virtually every door and
15 Engineering Report and some of Nguyen’s window.
16 opinions as to the quality of the
17 workmanship at the Property. However, The Hollingsworth letter was a
18 neither contractor offered any opinions settlement offer and therefore
19 contradicting the conclusion that water inadmissible pursuant to Evidence
20 intrusion had caused extensive mold and rot Code section 1152. See Objections to
21 at virtually every door and window on the Evidence, No. 6.
22 dwelling.
23 Supporting Evidence:
24 • Callahan Decl., ¶ 36, Exh. R
25 35. At no time did Hollingsworth or Plaintiffs Undisputed that water intrusion
26 ever provide Homesite with an engineer’s resulting from wind damage and rain
27 report, or any information disagreeing with was the efficient proximate cause of
28 the Donan Engineering opinion that the any rot observed at the Clampetts’
21
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 doors and windows were in need of home. Disputed that water intrusion
2 replacement because water intrusion had had caused all of the window and doors
3 caused the window and door framing and frames and wall assemblies to rot.
4 wall assemblies to rot. Evidence:
5 Plaintiffs’ Compendium, Ex. 2
6 Supporting Evidence Long Decl., ¶¶ 12-13
7 • Callahan Decl., ¶¶ 36-41
8 36. On September 2, 2020, Hollingsworth sent Undisputed.
9 Brown a 16-page “Brief on Applicable
10 California Law” in support of Plaintiffs’
11 contention that they were still owed
12 substantial money on their Claim. Brown
13 advised Hollingsworth that she had received
14 his brief, and that Homesite would further
15 discuss the Claim and get back to him.
16
17 Supporting Evidence:
18 • Callahan Decl., ¶ 37, Exh. S
19 37. On September 22, 2020, after a further Undisputed that Homesite advised
20 consideration of Plaintiffs’ Claim, including plaintiff in late September 2020 that it
21 all of the information provided by Plaintiffs was refusing to pay further benefits for
22 and Hollingsworth, the findings and their claim. Disputed that Homesite
23 observations of Linard and Nguyen, and a based that claim decision on a thorough
24 discussion between management and and complete investigation of
25 counsel, Homesite advised Plaintiffs in plaintiffs’ claim.
26 writing that it would stand on its coverage See Objections to Evidence, No.’s 1-3
27 position, because the loss was primarily & 7;
28 caused by long-term water intrusion, Evidence:
22
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 resulting in rot, and that the applicable Moriarty Decl., ¶ 16
2 mold/rot limit and any covered damages had
3 previously been paid by Homesite.
4
5 Supporting Evidence:
6 • Callahan Decl., ¶ 38, Exh. T
7 • Mandell Decl., ¶ 7, Exh. Z (Scott
8 Callahan Depo., pp. 184:7-197:13)
9 38. On or about November 20, 2020, Plaintiffs Undisputed.
10 demanded an appraisal pursuant to the terms
11 of the Policy. Although the appraisal process
12 is designed to determine the value of a loss,
13 and not whether a loss is covered, Homesite
14 agreed to accommodate Plaintiffs’ request,
15 and participated in the appraisal process.
16
17 Supporting Evidence:
18 • Callahan Decl., ¶ 39, Exh. U
19 • Mandell Decl., ¶ 7, Exh. Z (Scott
20 Callahan Depo., pp. 206:8-18, 210:4-
21 16, 214:16-22)
22 39. On May 6, 2021, an appraisal award was Undisputed.
23 issued, which incorporated Long’s repair
24 estimate and determined that the cost of the
25 repairs was $555,070.63. The appraisal
26 award expressly provided that it was made
27 without a consideration of any coverage or
28 policy issues, deductibles, prior payments by
23
PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Homesite, non-covered items, or any other
2 Policy provisions which might affect
3
Preview
ROBERT H. ROE, SBN 091041 1 15651 Dickens Street, No. 104 2 Encino, CA 91436-3133 Tel: (760) 443-0984 Fax: (818) 235-0172 3 Email: rroe231@gmail.com 4 DANIEL D. HOLLINGSWORTH, SBN 304617 5 Hollingsworth Law Firm 6 550 Figueroa Street, Suite F Monterey, CA 93940 7 Tel: (831) 920-0777 Fax: (831) 920-0840 E-mail: daniel@hollingsworthlegal.com 8 9 Attorneys for plaintiffs Robert Clampett and Marianna Clampett 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF MONTEREY – MONTEREY COURTHOUSE 12 13 ROBERT CLAMPETT, an individual, and ) Case No.: 21CV001804 14 MARIANNA CLAMPETT, an individual, ) Hon. Carrie M. Panetta ) Dept.: 14 15 ) Plaintiffs, ) PLAINTIFFS’ SEPARATE 16 ) STATEMENT OF UNDISPUTED AND ) DISPUTED MATERIAL FACTS IN 17 v. ) OPPOSITION TO DEFENDANT ) HOMESITE INSURANCE COMPANY 18 ) OF CALIFORNIA’S MOTION FOR 19 HOMESITE INSURANCE COMPANY OF ) SUMMARY JUDGMENT, OR IN THE CALIFORNIA, a California corporation; DOES ) ALTERNATIVE, SUMMARY 20 1 through 10, inclusive, ) ADJUDICATION ) 21 ) Defendants. ) Date: August 21, 2023 22 ) Time: 8:30 a.m. ) Dept.: 14 23 ) ) Complaint Filed: June 3, 2021 24 ) Trial Date: September 18, 2023 ) 25 ) ) 26 ) ) 27 ) ) 28 1 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Plaintiffs Robert Clampett and Marianna Clampett (“Plaintiffs”) respectfully submit this 2 Separate Statement of Undisputed and Disputed Facts in Opposition to Defendant Homesite 3 Insurance Company of California’s Motion for Summary Judgment, or in the alternative, Summary 4 Adjudication, as follows: 5 6 I. PLAINTIFFS’ REPONSE TO DEFENDANT’S STATEMENT OF UNDISPUTED 7 MATERIAL FACTS. 8 9 UMF HOMESITE’S UNDISPUTED FACTS PLAINTIFFS’ RESPONSE AND 10 No. SUPPORTING EVIDENCE 11 1. Homesite issued Homeowner’s Insurance Undisputed. 12 Policy No. 35116833 to Plaintiffs Robert 13 and Marianna Clampett (Collectively 14 “Plaintiffs”), which remained in force at all 15 times relevant, and which provided property 16 insurance, subject to all its terms and 17 provisions, for Plaintiffs’ residential 18 dwelling located at 27467 Schulte Rd., 19 Carmel, California 93923 (“Property”), 20 effective January 30, 2018, to January 30, 21 2019. 22 23 Supporting Evidence: 24 • Declaration of Scott Callahan in 25 support of Motion for Summary 26 Judgment, or in the alternative, 27 Summary Adjudication (“Callahan 28 Decl.”), ¶¶ 16, 17, Exh. A 2 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2. The Policy provided insurance coverage Undisputed. 2 under Coverage Part A, for the risk of direct 3 physical loss to the insured dwelling, subject 4 to a variety of limitations and exclusions. 5 6 Supporting Evidence: 7 • Callahan Decl., ¶ 17, Exh. A (See 8 Policy – Section I Perils Against 9 Insured – See Coverage A) 10 3. The Policy expressly provided that it did not Undisputed that the policy contains 11 provide coverage for losses caused by: that language. Disputed that those 12 “e. Any of the following: exclusions are enforceable in this case. 13 (1) Wear and tear, marring, Insurance policy exclusions are 14 deterioration; unenforceable to the extent that they 15 *** conflict with the efficient proximate 16 (3) Smog, rust or other corrosion, cause doctrine; thus, an insurer cannot 17 mold, wet or dry rot; contract around the efficient proximate 18 *** cause doctrine to give broader effect to 19 (6) Settling, shrinking, bulging or its policy exclusions. (Insurance 20 expansion, including resultant Code, section 530; Vardanyan v. 21 cracking, of pavements, patios, AMCO Ins. Co. (2015) 243 22 foundations, walls, floors, roofs, Cal.App.4th 779, review denied.) 23 or ceilings; 24 25 Supporting Evidence: 26 • Callahan Decl., ¶ 17, Exh. A (See 27 Policy, Section I – Perils Insured 28 Against – Coverage A - ¶ 2(e)(1).) 3 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 4. The Policy expressly excluded coverage for Undisputed that the policy contains 2 losses caused directly or indirectly, that language. Disputed that those 3 regardless of any other cause or event exclusions are enforceable in this case. 4 contributing concurrently or in any sequence Insurance policy exclusions are 5 to the loss by: unenforceable to the extent that they 6 “e. Neglect, meaning neglect of the conflict with the efficient proximate 7 “insured” to use all reasonable means to save cause doctrine; thus, an insurer cannot 8 and preserve property at and after the time of contract around the efficient proximate 9 a loss.” cause doctrine to give broader effect to 10 its policy exclusions. (Insurance 11 Supporting Evidence: Code, section 530; Vardanyan v. 12 • Callahan Decl., ¶ 17, Exh. A (See AMCO Ins. Co. (2015) 243 13 Policy - Section I – Exclusions - ¶ Cal.App.4th 779, review denied.) 14 1(e)) 15 5. The Policy expressly provided that it did not Undisputed that the policy contains 16 provide coverage for loss to the dwelling that language. Disputed that those 17 caused by any of the following: exclusions are enforceable in this case. 18 “a. Weather conditions. However, this Insurance policy exclusions are 19 exclusion only applies if weather conditions unenforceable to the extent that they 20 contribute in any way with a cause or event conflict with the efficient proximate 21 excluded in paragraph 1. above to produce cause doctrine; thus, an insurer cannot 22 the loss; contract around the efficient proximate 23 *** cause doctrine to give broader effect to 24 “ c. Faulty, inadequate or defective: its policy exclusions. (Insurance 25 *** Code, section 530; Vardanyan v. 26 (2) Design, specifications, AMCO Ins. Co. (2015) 243 27 workmanship, repair, construction, Cal.App.4th 779, review denied.) 28 renovation, remodeling, grading, 4 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 compaction; 2 *** 3 (4) Maintenance;” 4 of part or all of any property whether on 5 or off the “residence premises”. 6 7 Supporting Evidence: 8 • Callahan Decl., ¶ 17, Exh. A (See 9 Policy Section I – Exclusions - ¶ 10 2(c)(2)(4).) 11 6. The Policy also contained a relevant Undisputed that the policy contains 12 Endorsement that provided Limited Fungi, that language. Disputed that those 13 Wet or Dry Rot, or Bacteria Coverage, exclusions are enforceable in this case. 14 which provides that: Insurance policy exclusions are 15 “These limits of liability apply to the total of unenforceable to the extent that they 16 all loss or costs payable under this conflict with the efficient proximate 17 endorsement, regardless of the number of cause doctrine; thus, an insurer cannot 18 “occurrences”, the number of claims-made, contract around the efficient proximate 19 or the number of locations insured under this cause doctrine to give broader effect to 20 endorsement and listed in this Schedule. its policy exclusions. (Insurance 21 Section I-Property Coverage Limit for the Code, section 530; Vardanyan v. 22 Additional Coverage “Fungi”, Wet or Dry AMCO Ins. Co. (2015) 243 23 Rot, or Bacteria- $2500 Cal.App.4th 779, review denied.) 24 *** 25 DEFINITIONS 26 The following definition is added: 27 “Fungi” 28 a. “Fungi” means any type or form of 5 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 fungus, including mold or mildew, 2 and any other mycotoxins, spores, 3 scents or by-products produced or 4 released by fungi. 5 *** 6 SECTION I-PROPERTY COVERAGES 7 The following Additional Coverage is 8 added: 9 12. “Fungi”, Wet Or Dry Rot, Or Bacteria 10 a. The amount shown in the Schedule above 11 is the most we will pay for: 12 (1) The total of all loss payable under 13 Section I-Property Coverages caused by 14 “fungi” wet or dry rot, or bacteria; 15 (2) The cost to remove “fungi” wet or dry 16 rot, or bacteria from Property covered 17 under Section I- Property Coverages; 18 (3) The cost to tear out and replace any 19 part of the building or other covered 20 property as needed to gain access to the 21 “fungi” wet or dry rot, or bacteria;” 22 23 Supporting Evidence: 24 • Callahan Decl., ¶ 17, Exh. A (See 25 Policy – Endorsement Form HH 04 26 32 09 02 – Section I) 27 7. The Policy established a number of duties 28 that are imposed on an insured after a loss, 6 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 including the duty to: 2 “a. Give prompt notice to us or our agent; 3 ** 4 d. Protect the property from further damage. 5 If repairs to the property are required, you 6 must: 7 (1) Make reasonable and necessary repairs to 8 protect the property; and 9 (2) Keep an accurate record of repair 10 expenses;” 11 12 Supporting Evidence: 13 • Callahan Decl., ¶ 17, Exh. A (See 14 Section I – Conditions- ¶ 2(a)(d)) 15 8. On August 13, 2019, Plaintiff Robert Disputed. When Plaintiffs first 16 Clampett called Homesite and first reported reported the claim to Defendant, they 17 a claim for water damage that he indicated informed the company that the damage 18 had occurred 7 months earlier, in January occurred to their residence on or about 19 2019, due to a storm that had caused water to November 29, 2019. 20 seep through the windows and doors of the Evidence: 21 Property. Mr. Clampett reported that the Plaintiffs’ Compendium, Ex. 1 22 floors, ceilings, window and door frames of Robert Clampett Declaration, ¶ 9 23 his home were damaged; that there were 24 cracks in the walls; and, that the sheet rock 25 was coming apart. (“Claim”) 26 27 Supporting Evidence: 28 • Callahan Decl., ¶ 18, Exh. B (see 7 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 “Clampett611”) 2 • Callahan Decl., ¶ 19, Exh. C 3 9. Homesite initially assigned adjuster Jacob Undisputed. 4 Lee (“Lee”) to process and handle Plaintiffs’ 5 Claim. Lee notified Plaintiffs in voicemails 6 and emails that he was assigned to handle 7 their Claim. 8 9 Supporting Evidence: 10 • Callahan Decl., ¶ 20, Exh. D 11 10. On August 20, 2019, Lee retained Undisputed. 12 independent adjusting company Ryze Claims 13 Solutions, LLC. (“Ryze”) to inspect the 14 Property, assess the damage, and prepare a 15 repair estimate. Ryze assigned local 16 independent adjuster, Charles Linard 17 (“Linard”) to conduct the inspection and 18 assist Lee and Homesite with Plaintiffs’ 19 Claim. 20 21 Supporting Evidence: 22 • Callahan Decl., ¶ 21, Exh. E 23 11. On August 26, 2019, Linard inspected the Undisputed. 24 Property, where he met with Robert 25 Clampett and Plaintiffs’ contractor, Tom 26 Long (“Long”). Linard observed that Long 27 had already removed portions of the stucco, 28 exposing the framing around several 8 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 windows, and portions of the garage ceiling. 2 3 Supporting Evidence: 4 • Declaration of Barbara J. Mandell in 5 support of Motion for Summary 6 Judgment, or in the alternative, 7 Summary Adjudication (“Mandell 8 Decl.”), ¶ 8, Exh. AA (Charles 9 Linard Depo., p. 138:5-13; see 10 exhibit 15 of Linard Transcript) 11 • Callahan Decl., ¶ 22, Exh. F 12 • Callahan Decl., ¶ 23, Exh. G 13 12. During his inspection, Linard observed stress Disputed. 14 cracks along the window and door openings Objection - See Plaintiffs’ Objections 15 throughout the Property, on the exterior to Evidence No’s 1, 2, 3 & 7. 16 stucco and the interior drywall, and noted 17 that the damages were more pronounced 18 along the rear elevation of the Property. 19 Linard also observed stress cracks along the 20 doors and window openings throughout the 21 Property, which over time, would have 22 allowed water to penetrate the cracks and 23 cause the window and door framing to rot, 24 which he observed and was severe. Linard 25 also observed water and mold damage inside 26 the dwelling. Linard took numerous 27 photographs documenting his observations, 28 and reported on his findings to Lee and 9 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Homesite. 2 3 Supporting Evidence: 4 • Mandell Decl., ¶ 8, Exh. AA (Charles 5 Linard Depo., p. 138:5-13; see 6 exhibit 15 of Linard Transcript.) 7 • Callahan Decl., ¶ 22, Exh. F 8 • Callahan Decl., ¶ 23, Exh. G 9 13. Linard advised Lee that almost all the damage Undisputed that Linard made those 10 to the Property was long-term mold and rot, statements to Lee. Disputed in that 11 but that there was also some minor water those statements are used as 12 staining in the interior of the dwelling that conclusions on causation of damages to 13 appeared to be relatively recent. Lee informed Plaintiffs’ residence. 14 Linard that the Policy provided limited mold Objection - See Plaintiffs’ Objections 15 and rot coverage, subject to a $2,500 limit. to Evidence No’s 1, 2, 3 & 7. 16 17 Supporting Evidence: 18 • Callahan Decl., ¶ 22, Exh. F 19 • Mandell Decl., ¶ 8, Exh. AA (Charles 20 Linard Depo., pp. 136:13-22, 138:5- 21 13; see exhibit 14 and 15 of Linard 22 Transcript) 23 14. On September 6, 2019, Linard provided Undisputed that Linard provided 24 Homesite with his repair estimate, final report Homesite with a final report and 25 and photographs of the Property. Because the photographs of the Property on 26 mold and rot damage was severe, and the cost September 6, 2019. Disputed as to 27 of repairs would clearly exceed the applicable whether Linard independently prepared 28 mold/rot limit provided for by the Policy, the or drafted the repair estimate. Linard 10 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 repair estimate included exhausting the admitted Jacob Lee, an in house 2 $2,500 mold/rot limit, and an additional adjuster at Homesite, instructed him 3 $7,889.27 for the recent interior water how to apply coverage to portions of 4 damage, for a total benefit payment of the repair estimate, including 5 $10,389.27. categorizing any “long term” damage 6 as falling under the mold/rot 7 Supporting Evidence: endorsement. Linard testified that any 8 • Callahan Decl., ¶ 23, Exh. G “new damage” caused by water would 9 • Mandell Decl., ¶ 8, Exh. AA (Charles be fully covered under Coverage A of 10 Linard Depo., p. 65:7-12) the policy. Linard recommended to 11 Homesite that hiring an engineer 12 “could be useful”, and felt that more 13 stucco should be opened up to 14 determine the extent of the damage. 15 Evidence: 16 Plaintiffs’ Compendium, Ex. 5; (Linard 17 Depo., at 65:7-12; 82:24-83:17; 18 136:18-138:3; 147:15-148:11; 148:21- 19 149:18) 20 15. Linard did not itemize the entirety of the Undisputed that Linard did not itemize 21 mold/rot damage in his estimate, because the entirety of the mold/rot damage in 22 there was no need to, given that he could see his estimate (he did not itemize any 23 the cost of repairing the mold/rot damage mold/rot damage). Disputed. There is 24 exceeded $100,000, and the Policy only no evidence that the mold/rot damage 25 provided $2,500 in coverage for mold/rot exceeded $100,000.00. There are only 26 damage. six (6) pictures in Linard’s report 27 showing any evidence of mold/rot 28 Supporting Evidence: damage, and those photos depict only 11 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 • Mandell Decl., ¶ 8, Exh. AA (Charles two (2) limited areas of the house in and 2 Linard Depo., pp. 51:24-52:2, 59:1- area between the garage and guest 3 11, 85:13-23) bedroom. 4 Evidence: 5 Defendant’s Evidence, Exhibit G, pp. 6 83, 107-109 (Linard Report, comments 7 to pictures designated 9 & 10 at p. 5, 8 and pictures 58-61 at pp. 29-31.) 9 16. After reviewing Linard’s estimate and Undisputed that Linard sent a written 10 report, on September 9, 2019, Homesite report to Homesite on or about 11 issued payment of $10,389.27 to Plaintiffs, September 9, 2019 and that Homesite 12 along with a partial denial of their Claim, in issued a check to plaintiffs in the 13 which it was noted that on August 13, 2019, amount of $10,389.27. 14 Plaintiffs first reported that the Property had Disputed as that the cracks in the 15 been damaged by a wind driven rainstorm 7 stucco allowed rain to penetrate in the 16 months earlier, in January 2019. Homesite’s dwelling which caused mold and rot 17 correspondence further indicated that the damages. 18 inspection of the Property revealed that there Evidence: 19 were cracks in the stucco and window and Plaintiffs’ Compendium, Ex. 2 20 door openings throughout the dwelling that (Long Decl., ¶¶ 10-12.) 21 had allowed rain to penetrate, and cause Objection - See Plaintiffs’ Objections 22 mold and rot damage, which was subject to to Evidence No’s 1, 2, 3 & 7 regarding 23 the Policy’s $2500 mold/rot limit. Homesite conclusions on causation. 24 additionally advised Plaintiffs that they 25 should forward any additional information 26 that might change Homesite’s coverage 27 position. 28 12 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Supporting Evidence: 2 • Callahan Decl., ¶ 24, Exh. H 3 17. Over three months later, on December 17, Undisputed. 4 2019, Mr. Clampett emailed Lee, indicating 5 that there was “a lot more wind/rain damage 6 than originally thought”, and that he was 7 submitting an estimate prepared by Tom 8 Long for $492,903.70, to replace 31 9 windows and 9 doors at the Property. 10 11 Supporting Evidence: 12 • Callahan Decl., ¶ 25, Exh. I 13 • Mandell Decl., ¶ 5 14 18. Emails exchanged between Mr. Clampett Disputed. See Objections to Evidence 15 and Long, confirm that after Mr. Clampett No. 4. The e-mails from Long are 16 expressed surprise that the estimate was hearsay. Those e-mails are also 17 “double what [they] thought,” Long advised irrelevant because the May 6, 2021 18 that he had wanted to give Plaintiffs “a bit unanimous appraisal award ultimately 19 high of an estimate so there would be room set the amount of plaintiffs’ loss at 20 for him to negotiate.” $555,070.63, which was substantially 21 higher than Long’s December 2019 22 Supporting Evidence: estimate. Homesite is bound by the 23 • Mandell Decl., ¶ 4, Exh. X findings of the appraisal panel and 24 cannot dispute the scope of loss or cost 25 of repair determined by the appraisal 26 panel. 27 19. Homesite reviewed Long’s bid, and on Disputed that Tom Long’s written 28 December 31, 2019, Lee notified Mr. estimate was not simply a “bid;” rather 13 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Clampett that Homesite would be unable to it was a “proof of claim” as defined by 2 provide additional coverage for the damage the California Fair Claims Settlement 3 to all the doors and windows because the Practices Regulations, 10 Cal. Code 4 mold/rot limit was only $2,500, and the Regs. Section 2695.2 subdivision (s). 5 remainder of the damages were not covered Also disputed that Jacob Lee 6 by the terms of the Policy. responded appropriately to plaintiffs’ 7 proof of claim in the manner required 8 Supporting Evidence: by California’s Fair Claims Settlement 9 • Callahan Decl., ¶ 18, Exh. B, Practices Regulations, 10 Cal. Code 10 “Clampett 598”) Regs. section 2695.7 and 2695.9. 11 • Callahan Decl., ¶¶ 26, 27, Exh. J Evidence: 12 Plaintiffs’ Compendium, Ex. 13 Moriarty Decl., ¶ 16 14 20. On March 27, 2020, Mr. Clampett called Undisputed. 15 Homesite, and advised that he hired an 16 attorney, and that his attorney and 17 contractors had concluded that the damage 18 was caused by wind-driven rain. The 19 Homesite adjuster who spoke with Mr. 20 Clampett asked that he send his expert 21 reports so they could be reviewed by Lee, 22 who was out of the office, but would contact 23 Plaintiffs when he returned. 24 25 Supporting Evidence: 26 • Callahan Decl., ¶ 18, Exh. B (see 27 “Clampett595-596”) 28 • Callahan Decl., ¶ 28 14 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 21. On April 8, 2020, Mr. Clampett sent an Undisputed. 2 email to Lee, advising that he had retained 3 attorney David Hollingsworth 4 (“Hollingsworth”) to represent him, and that 5 Lee was authorized to discuss the Claim 6 directly with Hollingsworth. 7 8 Supporting Evidence: 9 • Callahan Decl., ¶ 29, Exh. K 10 22. On April 9, 2020, Lee notified Hollingsworth Undisputed. 11 that he had a meeting scheduled with 12 Homesite’s claims team on April 14th to 13 further discuss the Claim, and that he would 14 get back to Hollingsworth after the meeting. 15 16 Supporting Evidence: 17 • Callahan Decl., ¶ 30, Exh. L 18 23. Due to the size of Long’s recent estimate, on Undisputed. 19 April 14, 2020, Homesite transferred the 20 Claim to a large loss adjuster, and advised 21 Hollingsworth that the Claim had been 22 transferred to Tammy Brown (“Brown”), for 23 further handling. Brown left a voicemail for 24 Hollingsworth, and sent correspondence to 25 Plaintiffs advising that she was the new 26 adjuster responsible for their Claim. 27 28 Supporting Evidence: 15 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 • Callahan Decl., ¶ 18, Exh. B (see 2 “Clampett591”) 3 • Callahan Decl., ¶ 31, Exh. M 4 24. On April 21, 2020, Brown discussed the Undisputed. 5 Claim with Homesite’s legal department, 6 and advised Hollingsworth and Plaintiffs 7 that Homesite was hiring Donan Engineering 8 to advise as to the cause of the damage to 9 Plaintiffs’ Property, and to assist Homesite 10 in determining if any additional Policy 11 benefits were owed. 12 13 Supporting Evidence: 14 • Callahan Decl., ¶ 32, Exh. N. 15 25. On May 3, 2020, Donan civil engineer Phu Undisputed that David Hollingsworth 16 Nguyen (“Nguyen”) met Long and and Tom Long met Phu Nguyen at the 17 Hollingsworth at the Property. Clampetts’ home on or about May 3, 18 Hollingsworth advised Nguyen that heavy 2020. 19 winds between late 2018 and early 2019 had Disputed as to Callahan’s statements 20 caused water intrusion at the Property. regarding the Nyugen Report (See 21 Nguyen observed that Long was in the Objections to Evidence, No. 5.) 22 process of repairing the exterior walls 23 around the doors and windows and had 24 already removed and replaced the interior 25 drywall around many of the doors and 26 windows. Nguyen observed that there were 27 deteriorated window flashings and rotted 28 wall framing members, and that the exterior 16 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 stucco around many of the doors and 2 windows had already been removed. 3 4 Supporting Evidence: 5 • Callahan Decl., ¶ 33, Exh. O. 6 26. While conducting his inspection, Nguyen Disputed as to Callahan’s statements 7 was able to observe the damage to the regarding the Nyugen Report (See 8 Property and the repairs that were already in Objections to Evidence, No. 5.) 9 process, and he took photographs to 10 document his observations. After the 11 inspection, Nguyen researched the local 12 weather data in Carmel from late 2018 to 13 early 2019, and reviewed the photographs 14 previously taken by Linard at the time of his 15 inspection in August 2019. 16 17 Supporting Evidence: 18 • Callahan Decl., ¶ 33, Exh. O 19 27. Based on Nguyen’s personal observations Disputed. Nguyen testified that he did 20 and photos of the Property at his May 2020 not distinguish between the stress 21 inspection, his review of Linard’s photos cracks being cosmetic cracks or stress 22 taken at the time of Linard’s August 2019 cracks. He did not know what type of 23 inspection, the historical weather data in the membrane the Clampett residence had, 24 Carmel area from late 2018 to early 2019, or whether it had been penetrated. 25 and his own professional experience and Thomas Long, on the other hand, water 26 expertise, Nguyen concluded that there were tested the stucco and found that the 27 cracks in the exterior stucco caused by fiberglass vapor barrier was still 28 normal expansion and contraction as a result performing as expected and prevented 17 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 of long-term weather exposure; that the any water intrusion behind the stucco. 2 deteriorated and rotted wall framing was Mr. Long also found that the weep 3 caused by water intrusion around the door screed was properly installed and 4 and window openings; that cracks in the performing as expected. 5 stucco had likely contributed to the water 6 intrusion; that the dark stained and Evidence: 7 deteriorated condition of the window and Plaintiffs’ Compendium, Ex. 2 & 6 8 door framing indicated that the water Long Decl. ¶ 17. 9 intrusion was a long-term situation and not Nguyen Depo., at 65:17-66:8; 66:18- 10 the result of a one-time event; and that there 68:1 11 were other defects and faulty workmanship 12 in the application of the stucco and 13 construction of the Property. 14 15 Supporting Evidence: 16 • Callahan Decl., ¶ 33, Exh. O 17 • Mandell Decl., ¶ 15, Exh. HH (Phu 18 Nguyen Depo., pp. 51:12-52:7, 58:14- 19 19, 107:11-14) 20 28. Consistent with Donan Engineering Undisputed. 21 procedures, Nguyen’s report was reviewed 22 and approved by a senior Donan engineer, 23 and then provided to Homesite on May 21, 24 2020. 25 26 Supporting Evidence: 27 • Callahan Decl., ¶ 18, Exh. B (see 28 “Clampett582”) 18 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 • Mandell Decl., ¶ 15, Exh. HH (Phu 2 Nguyen Depo., pp. 38:20-39:24) 3 29. On May 27, 2020, Brown reviewed the Undisputed that Homesite reaffirmed 4 Donan report and the entire Claim with her its denial of plaintiffs’ claim. 5 supervisor and Homesite’s legal department, Disputed that there was extensive mold 6 and Homesite decided to stand by its partial and rot damage, and that any of the 7 denial of the Claim based on the physical mold and rot damage was subject to the 8 inspection of the Property, the Donan policy’s $2,500.00 limit. 9 Engineering report, the terms of the Policy, Insurance policy exclusions are 10 and the extensive mold and rot damage, unenforceable to the extent that they 11 which was subject to the $2500 mold/rot conflict with the efficient proximate 12 limit that had previously been paid to cause doctrine; thus, an insurer cannot 13 Plaintiffs. contract around the efficient proximate 14 cause doctrine to give broader effect to 15 Supporting Evidence: its policy exclusions. (Insurance 16 • Callahan Decl., ¶ 18, Exh. B (see Code, section 530; Vardanyan v. 17 “Clampett580”) AMCO Ins. Co. (2015) 243 18 • Callahan Decl., ¶ 34 Cal.App.4th 779, review denied.) 19 Evidence: 20 Plaintiffs’ Compendium, Ex. 2 21 Long Decl., ¶ 16 22 30. Also on May 27, 2020, Brown forwarded the Undisputed. 23 Donan report to Hollingsworth and relayed 24 Homesite’s position that it would be standing 25 on its partial denial of the Claim, but that if 26 Hollingsworth had any expert reports that he 27 thought would support a different conclusion, 28 19 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 he should provide them to Homesite for 2 further consideration. 3 4 Supporting Evidence: 5 • Callahan Decl., ¶ 34, Exh. P 6 31. Between early June and late August 2020, Undisputed. 7 Brown sent numerous letters to Plaintiffs 8 advising that the Claim was still open, and 9 that Homesite was waiting to review any 10 additional information Plaintiffs might 11 provide that would impact coverage for 12 Plaintiffs’ Claim. 13 14 Supporting Evidence: 15 • Callahan Decl., ¶ 35, Exh. Q 16 32. On or about August 26, 2020, Hollingsworth Disputed. The Hollingsworth letter 17 emailed Homesite a 27-page letter in which was a settlement offer and therefore 18 he conceded that in August 2018 (a year inadmissible pursuant to Evidence 19 before the Plaintiffs reported their Claim), the Code section 1152. See Objections to 20 Clampetts had decided to replace all the doors Evidence, No. 6. 21 and windows at the Property because they no 22 longer worked properly. 23 24 Supporting Evidence 25 • Callahan Decl., ¶ 36, Exh. R 26 33. In Hollingsworth’s August 26, 2020, letter, Disputed. The Hollingsworth letter 27 he further confirmed the observations of was a settlement offer and therefore 28 Linard in August 2019 and Nguyen, in May inadmissible pursuant to Evidence 20 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 2020, that dry rot caused by water intrusion Code section 1152. See Objections to 2 was confined to, and found at virtually every Evidence, No. 6. 3 door and window at the Property. 4 Hollingsworth further confirmed that the 5 damage to Plaintiffs’ Property was caused by 6 a combination of water intrusion, mold and 7 rot, and that the Clampetts’ Policy contained 8 a mold/rot limit. 9 10 Supporting Evidence 11 • Callahan Decl., ¶ 36, Exh. R 12 34. Accompanying his August 26, 2020 letter, Undisputed except Disputed as to the 13 Hollingsworth provided the opinions of two representation that there was extensive 14 contractors who criticized the Donan mold and rot at virtually every door and 15 Engineering Report and some of Nguyen’s window. 16 opinions as to the quality of the 17 workmanship at the Property. However, The Hollingsworth letter was a 18 neither contractor offered any opinions settlement offer and therefore 19 contradicting the conclusion that water inadmissible pursuant to Evidence 20 intrusion had caused extensive mold and rot Code section 1152. See Objections to 21 at virtually every door and window on the Evidence, No. 6. 22 dwelling. 23 Supporting Evidence: 24 • Callahan Decl., ¶ 36, Exh. R 25 35. At no time did Hollingsworth or Plaintiffs Undisputed that water intrusion 26 ever provide Homesite with an engineer’s resulting from wind damage and rain 27 report, or any information disagreeing with was the efficient proximate cause of 28 the Donan Engineering opinion that the any rot observed at the Clampetts’ 21 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 doors and windows were in need of home. Disputed that water intrusion 2 replacement because water intrusion had had caused all of the window and doors 3 caused the window and door framing and frames and wall assemblies to rot. 4 wall assemblies to rot. Evidence: 5 Plaintiffs’ Compendium, Ex. 2 6 Supporting Evidence Long Decl., ¶¶ 12-13 7 • Callahan Decl., ¶¶ 36-41 8 36. On September 2, 2020, Hollingsworth sent Undisputed. 9 Brown a 16-page “Brief on Applicable 10 California Law” in support of Plaintiffs’ 11 contention that they were still owed 12 substantial money on their Claim. Brown 13 advised Hollingsworth that she had received 14 his brief, and that Homesite would further 15 discuss the Claim and get back to him. 16 17 Supporting Evidence: 18 • Callahan Decl., ¶ 37, Exh. S 19 37. On September 22, 2020, after a further Undisputed that Homesite advised 20 consideration of Plaintiffs’ Claim, including plaintiff in late September 2020 that it 21 all of the information provided by Plaintiffs was refusing to pay further benefits for 22 and Hollingsworth, the findings and their claim. Disputed that Homesite 23 observations of Linard and Nguyen, and a based that claim decision on a thorough 24 discussion between management and and complete investigation of 25 counsel, Homesite advised Plaintiffs in plaintiffs’ claim. 26 writing that it would stand on its coverage See Objections to Evidence, No.’s 1-3 27 position, because the loss was primarily & 7; 28 caused by long-term water intrusion, Evidence: 22 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 resulting in rot, and that the applicable Moriarty Decl., ¶ 16 2 mold/rot limit and any covered damages had 3 previously been paid by Homesite. 4 5 Supporting Evidence: 6 • Callahan Decl., ¶ 38, Exh. T 7 • Mandell Decl., ¶ 7, Exh. Z (Scott 8 Callahan Depo., pp. 184:7-197:13) 9 38. On or about November 20, 2020, Plaintiffs Undisputed. 10 demanded an appraisal pursuant to the terms 11 of the Policy. Although the appraisal process 12 is designed to determine the value of a loss, 13 and not whether a loss is covered, Homesite 14 agreed to accommodate Plaintiffs’ request, 15 and participated in the appraisal process. 16 17 Supporting Evidence: 18 • Callahan Decl., ¶ 39, Exh. U 19 • Mandell Decl., ¶ 7, Exh. Z (Scott 20 Callahan Depo., pp. 206:8-18, 210:4- 21 16, 214:16-22) 22 39. On May 6, 2021, an appraisal award was Undisputed. 23 issued, which incorporated Long’s repair 24 estimate and determined that the cost of the 25 repairs was $555,070.63. The appraisal 26 award expressly provided that it was made 27 without a consideration of any coverage or 28 policy issues, deductibles, prior payments by 23 PLAINTIFS’ SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Homesite, non-covered items, or any other 2 Policy provisions which might affect 3