Preview
18CV335946
Santa Clara — Civil
Y. Chavez
Electronically Filed
MICHAEL B. MURPHY (State Bar No. 123849) by Superior Court of CA,
mbm@severson.com
DAVID C HUNGERFORD (State Bar No. 209609) County of Santa Clara,
dch@severson.com on 5/8/2020 10:04 AM
SEVERSON & WERSON Reviewed By: Y. Chavez
A Professional Corporation Case #18CV335946
One Embarcadero Center, Suite 2600 Envelope: 4321573
San Francisco, California 94111
Telephone: (415) 398-3344
Facsimile: (415) 956-0439
Attorneys for Defendant
HDI GLOBAL SPECIALTY SE, formerly
known as INTERNATIONAL INSURANCE
COMPANY OF HANNOVER SE
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SANTA CLARA
ll
12
PAUL ELIAS, individually and dba APEC Case No. 18CV335946
13 CONSTRUCTION,
SEPARATE STATEMENT OF
14 Plaintiff, UNDISPUTED MATERIAL FACTS IN
SUPPORT OF DEFENDANT HDI
15 vs. GLOBAL SPECIALTY SE’S, formerly
known as INTERNATIONAL
16 INTERNATIONAL INSURANCE INSURANCE COMPANY OF
COMPANY OF HANNOVER SE; COLONY HANNOVER SE, MOTION FOR
17 SPECIALTY INSURANCE COMPANY; SUMMARY JUDGMENT
PREMIER CLAIMS MANAGEMENT, LLC;
18 and DOES 1-25, INCLUSIVE, Date:
Time:
19 Defendants. Dept.:
Judge:
20
21
22 Pursuant to Code of Civil Procedure section 437c(b), defendant HDI Global Specialty SE
23 (“HDI”), formerly known as International Insurance Company of Hannover SE, submits this
24 separate statement of undisputed material facts, together with references to the supporting
25 evidence, in support of its motion for summary judgment against plaintiff Paul Elias, individually
26 and doing business as Apec Construction (“Elias”).
27 //1
28 /T/
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
DEFENDANT’S UNDISPUTED
PLAINTIFF’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING
SUPPORTING EVIDENCE:
EVIDENCE:
1 Elias was sued in an underlying action,
Brassfield, et al. v. Elias, Santa Clara
County Superior Court Case No.
17CV305267 (“Underlying Action”), for
damages arising out of the construction of
anew, single-family home in Los Gatos,
California (“Property”)
Request for Judicial Notice (“RJN”), J 1, Ex.
C at COM 00001-00021.
2. The complaint (“Underlying Complaint”)
in the Underlying Action alleges that
Elias acted as the general contractor for
the Property’s construction.
10
RJN, { 1, Ex. C at COM 00004.
ll
3 The Underlying Complaint alleges that
12 each defendant is legally responsible for,
and proximately caused the damages to
13 the underlying plaintiffs.
14 RJN, ¥ 1, Ex. C at COM 00003-00004.
15 4. The Underlying Complaint alleges that
construction of the Property began on or
16 about May 1, 2004 and was completed on
January 19, 2007.
17
RJN, { 1, Ex. C at COM 00006.
18
> The Underlying Complaint alleges that
19 after one underlying plaintiff moved into
the Property, and “prior to the end of the
20 Winter of 2007,” the basement of the
Property flooded and caused damage to
21 the Property.
22 RJN, § 1, Ex. 1 at COM 00006.
23 6. The Underlying Complaint alleges that
Elias, “encouraging the Plaintiffs to allow
24 him to conduct a repair, recommended the
installation of a backup generator for the
25 basement sump pump,” and that the
underlying plaintiffs agreed.
26
RIN, 1, Ex. | at COM 00007.
27
28
2
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
1 DEFENDANT’S UNDISPUTED
PLAINTIFF’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING
SUPPORTING EVIDENCE:
EVIDENCE:
7. The Underlying Complaint alleges that
Elias “charged for the repair work.”
RJN, 4 1, Ex. 1 at COM 00007.
8. The Underlying Complaint alleges that
“{d]uring the Winter of 2008,” the
Property’s basement flooded again.
RJN, {| 1, Ex. 1 at COM 00007.
9 The Underlying Complaint alleges that
Elias again inspected the Property and
recommended certain remediation
measures.
10
RJN, § 1, Ex. 1 at COM 00007.
ll
10. The Underlying Complaint alleges that
12 Elias “assured Plaintiffs that this repair
work would address the basement
13 flooding issue.”
14 RJN, { 1, Ex. 1 at COM 00007.
15 11. The Underlying Complaint alleges that
Elias “charged Plaintiffs for the repair
16 work.”
17 RIN,{ 1, Ex. 1 at COM 00007.
18 12. The Underlying Complaint alleges that
the Property did not experience water
19 intrusion for almost two years after Flood
No. 2, but that on December 25, 2010, the
20 Property’s basement flooded again.
21 RIN,{ 1, Ex. 1 at COM 00008.
22 13. The Underlying Complaint alleges that
the underlying plaintiffs were concerned
23 about Elias “having performed not one
but two repairs that ultimately failed.”
24
RIN, { 1, Ex. 1 at COM 00008.
25
14. The Underlying Complaint alleges that
26 the underlying plaintiffs “believed this
repair to be different.”
27
RJN, { 1, Ex. 1 at COM 00008.
28
3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
DEFENDANT’S UNDISPUTED
PLAINTIFF’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING
SUPPORTING EVIDENCE:
EVIDENCE:
15. The Underlying Complaint alleges that
Elias “told Plaintiffs that this specific
repair was necessary in order to properly
address the nature of the flooding in the
basement.”
RJN, 1, Ex. 1 at COM 00008.
16. The Underlying Complaint alleges that
Elias encouraged the underlying plaintiffs
to “make a claim on their homeowner’s
insurance policy so that they would not
have to bear the cost of the repair
directly.”
10 RJN, § 1, Ex. 1 at COM 00008.
ll 17. The Underlying Complaint alleges that
Elias instructed the underlying plaintiffs
12 to “tell their homeowner’s insurance
carrier that a repair bid had been
13 received.”
14 RJN, ¥ 1, Ex. 1 at COM 00008.
15 18. The Underlying Complaint alleges that
Elias “was ready to commence the repair
16 immediately”
17 RIN, {[ 1, Ex. 1 at COM 00008.
18 19. The underlying plaintiffs allege that they
submitted the claim believing that Elias
19 “was making a good faith attempt to
conduct a successful repair[.]”
20
RJN, § 1, Ex. 1 at COM 00008.
21
20. The Underlying Complaint alleges that
22 the Property’s basement flooded again on
or about December 10, 2014.
23
RIN, { 1, Ex. 1 at COM 00009.
24
21. The Underlying Complaint alleges that
25 Elias was not contacted in connection
with the December 10, 2014 flood, and
26 that others performed the repair work.
27 RJN, § 1, Ex. 1 at COM 00009.
28
4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
DEFENDANT’S UNDISPUTED
PLAINTIFF’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING
SUPPORTING EVIDENCE:
EVIDENCE:
22. The Underlying Complaint alleges that a
saw cut hole was discovered in the
basement slab when that repair work was
performed.
RJN, § 1, Ex. 1 at COM 00009.
23. The Underlying Complaint alleges that
the hole and other specific locations in the
Property were sources of the water
intrusion.
RJN, {| 1, Ex. 1 at COM 00009.
24. The Underlying Complaint alleges that
10 Elias’s construction work caused the
flooding and all resulting damage:
ll
the construction deficiencies present at
12 and in the RESIDENCE were caused by
omissions of or work performed by or on
13 behalf of all Defendants. Plaintiffs are
further informed and believe, and on that
14 basis allege, that these defective
conditions include, but are not limited to,
15 the following: (a) improperly installed,
inadequate, or nonexistent waterproofing
16 resulting in water intrusion to the
basement and other areas; (b) improperly
17 installed concrete basement slab and
retaining walls resulting in water
18 intrusion to the basement; (c) improperly
installed sewer and storm water drainage
19 systems resulting in water intrusion to the
basement and other areas; ( d) basement
20 shower defects; ( e) sheet metal defects;
and (f) other defective building
21 components and elements of the
RESIDENCE presently unknown{.|
22
RIN, { 1, Ex. 1 at COM 00010.
23
25. The Underlying Complaint alleges that
24 the injuries resulting from the defects are
“continuous and progressive.”
25
RJN, 1, Ex. 1 at COM 00010-00011.
26
26. The Underlying Complaint seeks
27 damages under theories of negligence,
fraud, negligent misrepresentation,
28 constructive fraud, and violations of
5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
DEFENDANT’S UNDISPUTED
PLAINTIFF’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING
SUPPORTING EVIDENCE:
EVIDENCE:
California Business and Professions Code
section 7160.
RJN, { 1, Ex. 1 at COM 00011-00020.
27. HDI insured Elias under commercial
general liability policy HAN 001856 14,
effective March 18, 2014 to March 18,
2015.
Hungerford Dec., 3, Ex. A. at HDI 0002-
0055.
28. HDI insured Elias under commercial
general liability policy HAN 001856 15,
10 effective March 18, 2015 to March 18,
2016.
ll
Hungerford Dec., ] 3, Ex. B. at HDI 0057-
12 0110.
13 29. Each HDI Policy provides coverage for
“property damage” that: (1) is caused by
14 an “occurrence,” and; (2) takes place
during the HDI Policy’s effective period.
15
Hungerford Dec., §] 3, Ex. A at HDI 0017;
16 Ex. B. at HDI 0072.
17 30. By endorsement, each HDI Policy
includes a Prior Completed Operations
18 Exclusion. The exclusion precludes
coverage for liability arising out of work
19 completed before the policy incepted:
20 This insurance does not apply to
“property damage” arising out of
21 “your work” performed by you or on
your behalf if “your work”, other than
22 service, maintenance, correction,
repair or replacement of any part of
23 any structure, was completed prior to
the policy period.
24
Hungerford Dec., § 3, Ex. A at HDI 0047;
25 Ex. B. at HDI 0102.
26 31. The HDI Policies define “your work” to
mean “[w]ork or operations performed by
27 you or on your behalf,” and “[mJaterials,
parts or equipment furnished in
28 connection with such work or
6
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
1 DEFENDANT’S UNDISPUTED
PLAINTIFF’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING
SUPPORTING EVIDENCE:
EVIDENCE:
operations.”
Hungerford Dec., § 3, Ex. A at HDI 0032;
Ex. B. at HDI 0087.
32. By endorsement, each HDI Policy
includes a Prior Incident Exclusion. The
exclusion precludes coverage for liability
because of “property damage” that first
took place before the policy incepted and
which result from a cause predating the
policy period:
This policy does not apply to:
10 a. damages because of "bodily
injury’ Wow
> ‘property damage"
ll "personal and advertising injury" that
first took place, first occurred, or first
12 began or commenced, before the
effective date of this policy; or
13
b. damages because of "bodily
14 injury wow> ‘property damage" or
"personal and advertising injury" that
15 take place during the policy term of
this policy, which result from, or is
16 caused in whole or in part by, any
event, occurrence or cause that took
17 place, first occurred, or began or
commenced, before the effective date
18 of this policy.
19 This exclusion applies, but is not
limited to damages because of "bodily
20 injury", "property damage" and
"personal and advertising injury" that:
21
a. took place, or
22 b continues, or
c. becomes progressively worse
23
during the policy period, if such damages
24 were contributed to, directly or indirectly,
by any event, occurrence or cause that
25 took place, first occurred, or began or
commenced, before the effective date of
26 this policy.
27 Further, for the purposes of this policy,
any damages because of "bodily injury",
28 "property damage". or "personal and
7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
1 DEFENDANT’S UNDISPUTED
PLAINTIFF’S RESPONSE AND
MATERIAL FACTS AND SUPPORTING
SUPPORTING EVIDENCE:
EVIDENCE:
advertising injury" suffered as a result of
any event, occurrence or cause that took
place, first occurred, or began or
commenced, before the effective date of
this policy shall be deemed to have taken
place entirely before the effective date of
this policy.
"We" shall have no duty to defend "you"
against any "suit" arising from or alleging
any "bodily injury’ won
> ‘property damage",
"personal and advertising injury" suffered
as a result of any event, occurrence or
cause that took place, first occurred, or
began or commenced, before the effective
10 date of this policy.
ll Hungerford Dec., § 3, Ex. A at HDI 0049;
Ex. B. at HDI 0104.
12
13
DATED: May 7, 2020 SEVERSON & WERSON
1 A Professional Corporation
» eb
15
16
17 David C. Hungerford
18 Attorneys for Defendant HDI GLOBAL SPECIALTY
SE, formerly known as INTERNATIONAL
19
INSURANCE COMPANY OF HANNOVER SE
20
21
22
23
24
25
26
27
28
8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Preview
18CV335946 Santa Clara — Civil Y. Chavez Electronically Filed MICHAEL B. MURPHY (State Bar No. 123849) by Superior Court of CA, mbm@severson.com DAVID C HUNGERFORD (State Bar No. 209609) County of Santa Clara, dch@severson.com on 5/8/2020 10:04 AM SEVERSON & WERSON Reviewed By: Y. Chavez A Professional Corporation Case #18CV335946 One Embarcadero Center, Suite 2600 Envelope: 4321573 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant HDI GLOBAL SPECIALTY SE, formerly known as INTERNATIONAL INSURANCE COMPANY OF HANNOVER SE SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SANTA CLARA ll 12 PAUL ELIAS, individually and dba APEC Case No. 18CV335946 13 CONSTRUCTION, SEPARATE STATEMENT OF 14 Plaintiff, UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT HDI 15 vs. GLOBAL SPECIALTY SE’S, formerly known as INTERNATIONAL 16 INTERNATIONAL INSURANCE INSURANCE COMPANY OF COMPANY OF HANNOVER SE; COLONY HANNOVER SE, MOTION FOR 17 SPECIALTY INSURANCE COMPANY; SUMMARY JUDGMENT PREMIER CLAIMS MANAGEMENT, LLC; 18 and DOES 1-25, INCLUSIVE, Date: Time: 19 Defendants. Dept.: Judge: 20 21 22 Pursuant to Code of Civil Procedure section 437c(b), defendant HDI Global Specialty SE 23 (“HDI”), formerly known as International Insurance Company of Hannover SE, submits this 24 separate statement of undisputed material facts, together with references to the supporting 25 evidence, in support of its motion for summary judgment against plaintiff Paul Elias, individually 26 and doing business as Apec Construction (“Elias”). 27 //1 28 /T/ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DEFENDANT’S UNDISPUTED PLAINTIFF’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE: EVIDENCE: 1 Elias was sued in an underlying action, Brassfield, et al. v. Elias, Santa Clara County Superior Court Case No. 17CV305267 (“Underlying Action”), for damages arising out of the construction of anew, single-family home in Los Gatos, California (“Property”) Request for Judicial Notice (“RJN”), J 1, Ex. C at COM 00001-00021. 2. The complaint (“Underlying Complaint”) in the Underlying Action alleges that Elias acted as the general contractor for the Property’s construction. 10 RJN, { 1, Ex. C at COM 00004. ll 3 The Underlying Complaint alleges that 12 each defendant is legally responsible for, and proximately caused the damages to 13 the underlying plaintiffs. 14 RJN, ¥ 1, Ex. C at COM 00003-00004. 15 4. The Underlying Complaint alleges that construction of the Property began on or 16 about May 1, 2004 and was completed on January 19, 2007. 17 RJN, { 1, Ex. C at COM 00006. 18 > The Underlying Complaint alleges that 19 after one underlying plaintiff moved into the Property, and “prior to the end of the 20 Winter of 2007,” the basement of the Property flooded and caused damage to 21 the Property. 22 RJN, § 1, Ex. 1 at COM 00006. 23 6. The Underlying Complaint alleges that Elias, “encouraging the Plaintiffs to allow 24 him to conduct a repair, recommended the installation of a backup generator for the 25 basement sump pump,” and that the underlying plaintiffs agreed. 26 RIN, 1, Ex. | at COM 00007. 27 28 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1 DEFENDANT’S UNDISPUTED PLAINTIFF’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE: EVIDENCE: 7. The Underlying Complaint alleges that Elias “charged for the repair work.” RJN, 4 1, Ex. 1 at COM 00007. 8. The Underlying Complaint alleges that “{d]uring the Winter of 2008,” the Property’s basement flooded again. RJN, {| 1, Ex. 1 at COM 00007. 9 The Underlying Complaint alleges that Elias again inspected the Property and recommended certain remediation measures. 10 RJN, § 1, Ex. 1 at COM 00007. ll 10. The Underlying Complaint alleges that 12 Elias “assured Plaintiffs that this repair work would address the basement 13 flooding issue.” 14 RJN, { 1, Ex. 1 at COM 00007. 15 11. The Underlying Complaint alleges that Elias “charged Plaintiffs for the repair 16 work.” 17 RIN,{ 1, Ex. 1 at COM 00007. 18 12. The Underlying Complaint alleges that the Property did not experience water 19 intrusion for almost two years after Flood No. 2, but that on December 25, 2010, the 20 Property’s basement flooded again. 21 RIN,{ 1, Ex. 1 at COM 00008. 22 13. The Underlying Complaint alleges that the underlying plaintiffs were concerned 23 about Elias “having performed not one but two repairs that ultimately failed.” 24 RIN, { 1, Ex. 1 at COM 00008. 25 14. The Underlying Complaint alleges that 26 the underlying plaintiffs “believed this repair to be different.” 27 RJN, { 1, Ex. 1 at COM 00008. 28 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DEFENDANT’S UNDISPUTED PLAINTIFF’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE: EVIDENCE: 15. The Underlying Complaint alleges that Elias “told Plaintiffs that this specific repair was necessary in order to properly address the nature of the flooding in the basement.” RJN, 1, Ex. 1 at COM 00008. 16. The Underlying Complaint alleges that Elias encouraged the underlying plaintiffs to “make a claim on their homeowner’s insurance policy so that they would not have to bear the cost of the repair directly.” 10 RJN, § 1, Ex. 1 at COM 00008. ll 17. The Underlying Complaint alleges that Elias instructed the underlying plaintiffs 12 to “tell their homeowner’s insurance carrier that a repair bid had been 13 received.” 14 RJN, ¥ 1, Ex. 1 at COM 00008. 15 18. The Underlying Complaint alleges that Elias “was ready to commence the repair 16 immediately” 17 RIN, {[ 1, Ex. 1 at COM 00008. 18 19. The underlying plaintiffs allege that they submitted the claim believing that Elias 19 “was making a good faith attempt to conduct a successful repair[.]” 20 RJN, § 1, Ex. 1 at COM 00008. 21 20. The Underlying Complaint alleges that 22 the Property’s basement flooded again on or about December 10, 2014. 23 RIN, { 1, Ex. 1 at COM 00009. 24 21. The Underlying Complaint alleges that 25 Elias was not contacted in connection with the December 10, 2014 flood, and 26 that others performed the repair work. 27 RJN, § 1, Ex. 1 at COM 00009. 28 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DEFENDANT’S UNDISPUTED PLAINTIFF’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE: EVIDENCE: 22. The Underlying Complaint alleges that a saw cut hole was discovered in the basement slab when that repair work was performed. RJN, § 1, Ex. 1 at COM 00009. 23. The Underlying Complaint alleges that the hole and other specific locations in the Property were sources of the water intrusion. RJN, {| 1, Ex. 1 at COM 00009. 24. The Underlying Complaint alleges that 10 Elias’s construction work caused the flooding and all resulting damage: ll the construction deficiencies present at 12 and in the RESIDENCE were caused by omissions of or work performed by or on 13 behalf of all Defendants. Plaintiffs are further informed and believe, and on that 14 basis allege, that these defective conditions include, but are not limited to, 15 the following: (a) improperly installed, inadequate, or nonexistent waterproofing 16 resulting in water intrusion to the basement and other areas; (b) improperly 17 installed concrete basement slab and retaining walls resulting in water 18 intrusion to the basement; (c) improperly installed sewer and storm water drainage 19 systems resulting in water intrusion to the basement and other areas; ( d) basement 20 shower defects; ( e) sheet metal defects; and (f) other defective building 21 components and elements of the RESIDENCE presently unknown{.| 22 RIN, { 1, Ex. 1 at COM 00010. 23 25. The Underlying Complaint alleges that 24 the injuries resulting from the defects are “continuous and progressive.” 25 RJN, 1, Ex. 1 at COM 00010-00011. 26 26. The Underlying Complaint seeks 27 damages under theories of negligence, fraud, negligent misrepresentation, 28 constructive fraud, and violations of 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DEFENDANT’S UNDISPUTED PLAINTIFF’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE: EVIDENCE: California Business and Professions Code section 7160. RJN, { 1, Ex. 1 at COM 00011-00020. 27. HDI insured Elias under commercial general liability policy HAN 001856 14, effective March 18, 2014 to March 18, 2015. Hungerford Dec., 3, Ex. A. at HDI 0002- 0055. 28. HDI insured Elias under commercial general liability policy HAN 001856 15, 10 effective March 18, 2015 to March 18, 2016. ll Hungerford Dec., ] 3, Ex. B. at HDI 0057- 12 0110. 13 29. Each HDI Policy provides coverage for “property damage” that: (1) is caused by 14 an “occurrence,” and; (2) takes place during the HDI Policy’s effective period. 15 Hungerford Dec., §] 3, Ex. A at HDI 0017; 16 Ex. B. at HDI 0072. 17 30. By endorsement, each HDI Policy includes a Prior Completed Operations 18 Exclusion. The exclusion precludes coverage for liability arising out of work 19 completed before the policy incepted: 20 This insurance does not apply to “property damage” arising out of 21 “your work” performed by you or on your behalf if “your work”, other than 22 service, maintenance, correction, repair or replacement of any part of 23 any structure, was completed prior to the policy period. 24 Hungerford Dec., § 3, Ex. A at HDI 0047; 25 Ex. B. at HDI 0102. 26 31. The HDI Policies define “your work” to mean “[w]ork or operations performed by 27 you or on your behalf,” and “[mJaterials, parts or equipment furnished in 28 connection with such work or 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1 DEFENDANT’S UNDISPUTED PLAINTIFF’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE: EVIDENCE: operations.” Hungerford Dec., § 3, Ex. A at HDI 0032; Ex. B. at HDI 0087. 32. By endorsement, each HDI Policy includes a Prior Incident Exclusion. The exclusion precludes coverage for liability because of “property damage” that first took place before the policy incepted and which result from a cause predating the policy period: This policy does not apply to: 10 a. damages because of "bodily injury’ Wow > ‘property damage" ll "personal and advertising injury" that first took place, first occurred, or first 12 began or commenced, before the effective date of this policy; or 13 b. damages because of "bodily 14 injury wow> ‘property damage" or "personal and advertising injury" that 15 take place during the policy term of this policy, which result from, or is 16 caused in whole or in part by, any event, occurrence or cause that took 17 place, first occurred, or began or commenced, before the effective date 18 of this policy. 19 This exclusion applies, but is not limited to damages because of "bodily 20 injury", "property damage" and "personal and advertising injury" that: 21 a. took place, or 22 b continues, or c. becomes progressively worse 23 during the policy period, if such damages 24 were contributed to, directly or indirectly, by any event, occurrence or cause that 25 took place, first occurred, or began or commenced, before the effective date of 26 this policy. 27 Further, for the purposes of this policy, any damages because of "bodily injury", 28 "property damage". or "personal and 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1 DEFENDANT’S UNDISPUTED PLAINTIFF’S RESPONSE AND MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE: EVIDENCE: advertising injury" suffered as a result of any event, occurrence or cause that took place, first occurred, or began or commenced, before the effective date of this policy shall be deemed to have taken place entirely before the effective date of this policy. "We" shall have no duty to defend "you" against any "suit" arising from or alleging any "bodily injury’ won > ‘property damage", "personal and advertising injury" suffered as a result of any event, occurrence or cause that took place, first occurred, or began or commenced, before the effective 10 date of this policy. ll Hungerford Dec., § 3, Ex. A at HDI 0049; Ex. B. at HDI 0104. 12 13 DATED: May 7, 2020 SEVERSON & WERSON 1 A Professional Corporation » eb 15 16 17 David C. Hungerford 18 Attorneys for Defendant HDI GLOBAL SPECIALTY SE, formerly known as INTERNATIONAL 19 INSURANCE COMPANY OF HANNOVER SE 20 21 22 23 24 25 26 27 28 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT